Fox v. Fox

BARNARD, P. J. The plaintiff obtained a divorce from the defendant in the Superior Court of San Diego County on August 17, 1953. The interlocutory decree awarded the custody of the minor son of the parties to the plaintiff, subject to the right of the defendant to visit the child at reasonable times and to take said child with him for periods of reasonable visitation.

Immediately after the interlocutory decree was entered the plaintiff moved to Oakland, where she still resides. The defendant, who was an officer in the United States Navy and then stationed in Washington, D. C., sent a telegram to the plaintiff on February 15, 1954, saying he desired to have the boy spend his Easter-week vacation “with.me in California. ’ ’ The plaintiff replied in a telegram saying that the boy’s vacation was from April 10 to April 18, and asking further information as to where and with whom the boy would stay. The defendant replied by wire on February 18, 1954, saying that the boy would stay with him at an address in Los Angeles, and that he would pick the boy up on April 10.

The defendant took the boy with him on April 10, 1954. On April 19, 1954, he filed notice of a motion to modify the interlocutory decree by awarding the custody of the boy to him, on the grounds that there had been a complete change of circumstances since the interlocutory decree was entered; that the moral and mental welfare of the boy was being endangered because of the conduct of the plaintiff since that time; and that it was for the best interest of the child morally, physically and mentally, that custody be awarded to the defendant. An affidavit was also filed stating certain facts relied on. On April 22, 1954, the plaintiff filed a verified answer denying all the allegations in defendant’s affidavit and alleging that the defendant is unfit to have the custody of the child by reason of his drinking habits, and that the defendant is devoid of integrity as evidenced by his deceit in getting possession of the boy by stating that the boy would stay with him in Los Angeles . On the same day, the plaintiff filed a motion for a change of venue from San Diego County to Alameda County, on the grounds of convenience of witnesses and that the ends of justice would be promoted thereby.

[813]The two matters were heard on April 22, 1954. The court first denied the motion for a change of venue, and then proceeded to hear the motion for a change of custody. Several witnesses were heard, including the plaintiff, the man she intended to marry when her divorce became final, a friend from Oakland who testified as to conditions in the plaintiff’s home, and the minor who was then 11 years old. Findings were waived by a stipulation made in open court. On April 27, 1954, the court entered an order modifying the interlocutory decree of divorce by awarding the custody and control of the boy to the defendant until the further order of the court. The plaintiff has appealed from 'that order.