Curry v. Curry

COUGHLIN, J. The sole issue on this appeal is whether the trial court abused its discretion in denying a motion to modify a child custody order.

The controlling rule in such a. situation is stated in Foster v. Foster, 8 Cal.2d 719, 730 [68 P.2d 719] as follows: “An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion.” (In accord: Munson v. Munson, 27 Cal.2d 659, 666 [166 P.2d 268].)

The facts herein will be stated in accord with the time-honored rule that the trial court resolved every factual conflict in favor of the prevailing party, and accepted that evidence, including those inferences reasonably dedueible therefrom, which supports its order. (Primm v. Primm, 46 Cal.2d 690, 693 [299 P.2d 231]; Thomas v. Hunt Mfg. Corp., 42 Cal.2d 734, 736 [269 P.2d 12].)

The plaintiff, in June 1956, obtained a default interlocutory decree of divorce from the defendant, who then was in the armed services of the United States, after th,e latter had filed a written appearance in the action; was awarded custody of - the 2%-year-old son of the parties; in: Match of the following year went to the home of- the defendant in Nebraska, purportedly for the purpose of effecting a reconciliation; but, within a short time thereafter, upon receipt of train fare from a person named Jay Knudson in San Diego, deserted the defendant and her minor son, and returned to that city. It [653]appears that the defendant still was in the. armed services at the time of.this visit; placed the child with his parents in the latter’s home in Alliance, Nebraska; and in May 1957 obtained an order which awarded him custody of the boy, directed that the latter should live with the defendant’s parents, and modified the custody provisions of the interlocutory decree accordingly. The plaintiff claims that she had no knowledge respecting this change of. custody proceeding. However,' the order of modification recites that she was represented by her attorney at the hearing in question. A final decree of divorce was' entered in June 1957. The plaintiff married again, but the date of marriage, or the name of her husband, is not disclosed by the record. From March 1959 to April, 1960, the minor resided in California a short distance from where the plaintiff lived, but she visited him only on one occasion during that time. In September 1961 the plaintiff instigated the instant proceeding to obtain custody.