Adleson v. Adleson

PETERS, P. J. This is an appeal by Mrs. Adleson from an order of the superior court refusing to modify a prior order granting physical custody and control of two of the four minor children of the broken marriage to her husband, Mr. Adleson.

In September of 1955, Madelaine Adleson secured an interlocutory decree of divorce from Frank Adleson. This decree, among other things, provided that Mrs. Adleson should have the exclusive care, custody and control of the four minor children of the marriage, with the right of visitation granted to Mr. Adleson. The children are named Susan, Sydney, Steven and Stacey. On May 4, 1956, by stipulation of the parties, the interlocutory decree was modified by court order so as to grant physical possession of Sydney and Steven to the father, with legal custody of the four children remaining in the mother. In August of 1956, Mrs. Adleson instituted this present proceeding to secure a modification of the May 4, 1956, order to provide for a restoration of the right of physical custody of Sydney and Steven to her. After a hearing, the court issued the following order: “It is hereby ordered that there be no modification of the previous Order of Court [3]of May 4,1956, and that the defendant father, Frank Adleson, shall have physical care, custody and control of Sydney and Steven Adleson, as set forth in said Order of Court dated May 4, 1956;

“It is further ordered that in all ways said Order of May 4, 1956, is confirmed and made a part of this Order.”

Mrs. Adleson appeals from this order. She makes several arguments in her briefs, but basically her contention is that the order of which complaint is made is based on insufficient evidence, in that, it is claimed, the evidence without conflict shows that the best interests of the children require the requested modification of the May 4th order. In other words, it is necessarily contended that the trial court abused its discretion in making the order.

The law applicable to such proceedings is well settled, and has recently been summarized in the case of Holsinger v. Holsinger, 44 Cal.2d 132 [279 P.2d 961], There a final decree gave the husband and wife joint legal custody of their two children, with physical custody in the mother and visitation rights in the father. On motion of the father the trial court modified this order by granting to the father physical custody of the 10-year-old boy with visitation rights in the mother, and by granting to the father the exclusive authority to make arrangements for the boarding and educational program of the 12-year-old girl. The mother appealed, making substantially the same contentions that are made in the instant The Supreme Court summarized the applicable law as ease. The trial court’s order of modification was affirmed, follows (p. 135) :