Davis v. Davis

McCOY, J. pro tem.* This is a petition for a writ of supersedeas (1) staying enforcement of an order of the trial court made on June 17,1966, requiring appellant to pay to the attorney for the guardian attorney fees and costs on appellant’s appeal from an earlier order of March 28,1965, and (2) to restore appellant’s visitation rights as they existed prior to the March 28th order, i.e., a stay of the latter order pending the appeal therefrom. We heretofore denied the petition insofar as it related to the restoration of appellant’s visitation rights, but granted a temporary stay with respect to the order for payment of the guardian’s attorney’s fees and costs until the hearing of the petition.

Appeals have been taken to this court from two orders made by the trial court. The parties involved are Joan Davis, the first wife of Lee Davis, and mother of their child, Julie Ellen Davis; Lee Davis, the father of the child; and Mabel Davis, the second wife of Lee Davis and now the guardian of the child of Joan and Lee Davis.

In April 1957 Joan obtained an interlocutory judgment of divorce from Lee which provided that she should have the custody of their child, Julie, then one year old. (Davis v. Davis, superior court No. D516935.) After the final decree in that action was entered, Lee married Mabel in August 1959 and in February 1960 he obtained a modification of the decree and was awarded custody of said child. Lee and Mabel separated in March 1963 and Lee obtained an interlocutory judgment of divorce by default in November 1964. Although no further court order was obtained, Julie continued to live with Mabel after her separation from Lee.

Joan also remarried and on January 29, 1965, obtained an [292]order in her divorce action requiring Lee to show cause why she should not be awarded custody of the child. Before a hearing thereon, Mabel filed her petition in the probate court (superior court No. P492037) to be appointed as Julie’s guardian, alleging that both her natural parents had abandoned her and that neither of them was a fit or proper person to have custody. Joan’s order to show cause in the divorce action and Mabel’s petition for appointment as guardian were consolidated for hearing and heard on March 11,1965. On that date the court found that Joan’s conduct “in effect, has constituted abandonment of said minor child for a period of approximately eight years ...” and that Lee “at this time is unfit to have the custody of the minor child.” Accordingly, by order of March 16, 1965, Joan’s application for an order in the divorce ease granting her custody was denied; Mabel was, appointed guardian of the person of the minor; Lee was ordered to pay Mabel $100 per month for child support; and both parents were given the right of reasonable visitation. A single order was made disposing of the consolidated proceedings and copies were filed in each of the two files. No appeal was taken from this order.