Chagi v. Chagi

WHITE, P. J. By the terms of an interlocutory judgment of divorce the cross-complainant husband was granted a divorce and custody of the minor children of the parties, with right of reasonable visitation by the wife. In October, 1952, approximately a year and a half after the entry of the interlocutory judgment, the wife procured an order to show cause why custody of the children should not be awarded to her. Upon the hearing of the order to show cause, plaintiff wife presented evidence in support of her application for change of custody. Upon conclusion of her evidence the trial court granted a motion for dismissal of her application, without prejudice. This appeal by the wife is from the minute order of the court granting the motion for dismissal and denying without prejudice the wife’s application for modification of the custody order of February 19, 1951.

Appellant presents as her grounds of reversal, the proposition : “The plaintiff’s evidence was legally sufficient to require the trial court to deny the motion for nonsuit.” Thus, in effect, appellant contends that the evidence adduced did not support the trial court’s conclusion that the best interests of the children would be served by continuing their custody in the father. In support of her argument, appellant invokes the well-established rules governing motions for nonsuit— that is, that the appellate court must view the evidence in the light most favorable to the party against whom the nonsuit is granted and draw from the evidence only those inferences which are favorable to the appealing party. The answer to this contention is that the court on appeal is concerned only with whether the evidence adduced by the wife could properly be deemed by the trier of fact, in the exercise of a sound judicial discretion, insufficient to justify a change of custody. In the absence of a showing of abuse of discretion, the order of the trial court should be upheld. (Crater v. Crater, 135 Cal. 633 [67 P. 1049]; Lefebure v. Lefebure, 48 [14]Cal.App. 483 [192 P. 76]; Bush v. Bush, 81 Cal.App.2d 695 [185 P.2d 38]; Robesky v. Robesky, 74 Cal.App.2d 523 [168 P.2d 976]; Cowen v. Cowen, 100 Cal.App.2d 366 [223 P.2d 666]; Exley v. Exley, 101 Cal.App.2d 831 [226 P.2d 662]; Taber v. Taber, 209 Cal. 755 [290 P. 36]; Davis v. Davis, 41 Cal.2d 563 [261 P.2d 729].)

In Foster v. Foster, 8 Cal.2d 719, 726 [68 P.2d 719], it was held that “until some change of circumstances arises which makes a modification of the former order of custody advisable from the point of the welfare of the child, the courts will give effect to the former order and will refuse to make any modification order.” (Emphasis added.) However, this rule is not ironclad. (Foster v. Foster, supra, p. 728; see, also, Kelly v. Kelly, 75 Cal.App.2d 408, 415 [171 P.2d 95]; Peterson v. Peterson, 64 Cal.App.2d 631, 633 [149 P.2d 206]; and limitations on the power of the superior court under Civil Code, sections 138 and 197, and Probate Code, sections 1407 and 1408, as judicially interpreted, where the question of “fitness” of a parent is involved, as discussed in Stewart v. Stewart, 41 Cal.2d 447, 451 [260 P.2d 44].)