Blackwell v. Blackwell

DRAPER, J. Defendant husband moved for modification of a divorce decree to transfer custody of the two minor children from plaintiff wife to him. His motion was denied, and on plaintiff’s motion she was granted leave to remove the children temporarily from the United States. In the course of the proceedings, husband moved to disqualify the trial judge for cause (Code Civ. Proc., § 170, subd. 5). Although the record on the latter motion is somewhat cloudy, it is clear that no hearing was held on the claimed disqualification, and that the judge did determine both custody motions. Defendant appeals.

The voluminous record before us includes transcript of a juvenile court proceeding involving fitness of the mother to have custody of the children.

On May 20, 1959, about a year after entry of interlocutory decree, hearings were commenced in juvenile court upon the petition of one Yantis, who had alleged that the children fell within subdivision (b) of Section 700, Welfare and Institutions Code, by reason of conduct of the mother, particularly her asserted sexual molestation of the daughter of the parties, which Yantis alleged he had witnessed through a window of the mother’s home. The record discloses that defendant husband’s attorney had, shortly after filing of Yantis’ petition, proposed to file a motion in the divorce action for change of custody and to file therewith an affidavit setting forth Yantis’ allegations. The judge pointed out that an affidavit in the divorce proceedings would be open to the public, whereas that in the juvenile court was not. Accordingly, filing of defendant’s motion was deferred until May 27, although it is apparent that all parties proceeded in the juvenile court matter as though such motion had theretofore been filed. Although the juvenile court transcript shows no express stipulation, it is clear from the record as a whole that plaintiff and defendant, as parties to the juvenile court proceeding represented therein by the same counsel who appeared for them in the divorce action, tacitly agreed that the record in the juvenile court matter would be deemed a part of the record in the two custody motions in the divorce proceeding which were to be heard immediately following the juvenile [522]matter. This view is substantiated by the fact that counsel, in the later presentation of the two custody motions, incorporated by reference the juvenile court transcript.

Toward the close of the morning session May 28, the juvenile court matter was submitted. The judge orally reviewed the evidence in detail, stating his conclusions as to the accuracy, partiality and bias of the many witnesses who had been called. He refused to accept as accurate much of the testimony of husband and his witnesses, and dismissed the proceeding.