Bender v. Superior Court

WARNE, J. pro tem.* This is a proceeding in mandate. The facts as disclosed by the record are as follows: In 1949 Carroll J. Bender was awarded an interlocutory decree of divorce from Yvonne Bender, petitioner herein. The decree provided that Yvonne have the custody, care and control of Linda Irene Bender, the minor child of the marriage. Carroll was given the right to see and visit with Linda at all reasonable times. In 1950 a final decree of divorce was made and entered and the custody provisions of the interlocutory decree were continued in full force and effect. In 1954 the custody provisions of the divorce decree were modified and the care, custody and control of Linda were awarded to Carroll on condition that he place her in a boarding school in San Francisco and that both Carroll and Yvonne have the right to the company of Linda on alternate weekends and that each have the physical custody of the minor child for one-half of the summer vacation. Linda was placed in the Immaculate Conception Academy in San Francisco. In May, 1957, Carroll sought further modification of the custody provisions concerning Linda, now 10 years of age, so that he could take her to the Philippine Islands during his tour of duty there with the United States Air Force and place her in a parochial school in the vicinity of Clark Field. Yvonne opposed the modification proposed by Carroll and on May 23, 1957, petitioned the court for an order modifying the custody provisions so as to place Linda with her. A hearing was held on both petitions on May 23, 1957, and on June 3, 1957, the court made and entered its order permitting Linda to be taken out of the continental limits of the United States. Since the order allowed the removal of the child from the state it was stayed by operation of law for a period of 30 days from the date of its entry. (Code Civ. Proc., § 949a.)

Following the entry of the June 3, 1957, modification order and within the 30-day automatic stay, Yvonne noticed a motion to vacate and set aside the provisions of the order permitting Linda to be removed to the Philippine Islands on the ground that the Philippine Islands had become an unhealthy place because of the influenza epidemic allegedly raging there and on the further ground that since Linda was about to enter the age of puberty the child’s best interest under the circumstances would be served by remaining with the mother. This motion was noticed for hearing on June 27, 1957. However, the Honorable Gregory P. Maushart, the [819]Presiding Judge of the Superior Court of Merced County wherein the proceedings were pending, informed petitioner that he would not consider hearing said motion at any time prior to July 5,1957. Yvonne then asked for a summary order further staying the order of June 3, 1957, until her pending motion had been heard by the court. This request was denied.