Harris v. Harris

SHEA, J. pro tem.* Petition for writ of supersedeas and for a temporary stay pending decision on the petition. The temporary stay was granted and the respondent was ordered to show cause why the writ should not issue.

Petitioner contends that there was probable error and manifest abuse of discretion in the trial court at a hearing in re modification of an order pertaining to the custody of minor children.

Appellant-petitioner is the mother, and respondent is the father. They will be so designated in this opinion.

The parties were married. They have five children of ages 8 years to 3 years. In a divorce action in Marin County the mother was granted an interlocutory decree on December [20413], 1956. This decree granted joint custody but awarded “physical care, custody and control” to the mother.

On April 12, 1957, the interlocutory decree was modified. The modification changed a restraining order, which restrained the mother from removing the children from the “San Francisco Bay area for more than a period of 30 days,” to an order restraining the mother from removing the children from the “State of California.” All other orders contained in the interlocutory decree remained in effect.

On December 18, 1958, a final decree was entered. This decree “made binding” the existing custody and support orders.

On motion of the father the case was duly transferred to the Los Angeles Superior Court in May, 1959, the mother having moved with the children to Los Angeles County in the interim. Thereafter, an order to show cause was issued to modify the existing orders by changing the physical custody and care of the children from the mother to the father.

The order to show cause was tried for five days ending June 24, 1959. The trial court ordered that the custody be changed to the father.

On July 22, 1959, findings of fact were signed by the trial court finding in substance as follows: that the wife refused to permit the children to acknowledge the husband as their father; that she attempted to make the children dislike the father; that she maintained a residence unsuitable for the children; that she neglected to provide adequate food for them; that she frequently left them alone and unattended; that she had been hospitalized for taking an overdose of barbiturates; and that on one occasion she had expressed an intent to take her own life. The court further found that the father is a fit and proper person; that he can properly provide for the children; and that for the best interest and welfare of the children the custody should be placed in him.