Opinion
Angell, Adams, Gochnauer, Elder & Holmes, Philip H. Angell, Jr. San Francisco, George Franklyn Duke, San Francisco, of counsel, for appellant.
Robert A. Kaiser, John E. Nolan, Oakland, for respondent.
SHOEMAKER, Justice.
Warren T. Chaffey appeals from an order modifying the custody of his three minor children.
On August 24, 1957, the Circuit Court of the Territory of Hawaii granted Warren Chaffey a divorce from Dorine Marks Chaffey, and custody of the parties' three minor children. In October 1957, Dorine Chaffey and Howell J. Foster, Jr., a member of the United States Air Force, were married and took up their residence in Petaluma, California. Warren Chaffey, who was also a member of the Air Force, was then residing at the home of his parents in Oakland, California. Mrs. Foster visited the children frequently at the Oakland address.
In December 1958, Mrs. Foster filed an application for change of custody of the three children from Warren Chaffey to herself with the Alameda County Superior Court. On October 21, 1959, that court found that Warren Chaffey had provided a good home for the children and was a fit and proper person to have custody and control over them. It further found that there was not a sufficient showing of changed circumstances subsequent to the original decree. Accordingly, on December 1, 1959, the court ordered that custody of the children remain with Warren Chaffey, with extensive visitation rights in Mrs. Foster.
On May 3, 1961, Mr. Chaffey sent a notice to Mrs. Foster and to the clerk of the Alameda County Superior Court informing them that he had received military orders to leave for Guam on June 6, 1961. Mrs. Foster immediately attempted to contact Mr. Chaffey at Beale Air Force Base, where he had last been stationed, but was able to learn only that he had gone on leave April 20, 1961, and was 'back East.'
On June 5, 1961, Mrs. Foster commenced the instant proceeding to obtain an order to show cause why custody of the children should not be modified. In her supporting declaration, Mrs. Foster alleged that Mr. Chaffey was about to remove the children from the United States. The Alameda County Superior Court issued the show cause order and further ordered that Mr. Chaffey be restrained from removing the children from the state pending the hearing set for June 20, 1961.
On the following day, June 6, 1961, Warren Chaffey returned from leave and was served with these orders as he was about to embark for Guam from Travis Air Force Base. Mr. Chaffey ignored the restraining order and took the three children with him to Guam.
The matter then came on for hearing on June 20, 1961. Mrs. Foster's attorney, after consulting with the attorney representing Mr. Chaffey, agreed to postpone the matter until a probation report could be prepared in cooperation with the Guam authorities. The court continued the hearing until October 6, 1961.
On the day of the hearing, Mr. Chaffey's counsel applied for a stay of proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940. The court denied the stay. Mrs. Foster and her husband were then allowed to testify as to the type of home which they would be able to provide for the children. Mr. Chaffey's counsel cross-examined both witnesses. At the conclusion of the hearing, the court found that there was a sufficient showing of changed circumstances occurring subsequent to the custody order of December 1, 1959, to warrant modification of custody. The court accordingly awarded the custody of all three children to Mrs. Foster, with the right of reasonable visitation reserved to Mr. Chaffey. The court also ordered that Mr. Chaffey pay the sum of $25 per month for the support of each child. Appellant's first contention is that the lower court abused its discretion in denying him a stay of proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940 (54 Stat. 1181; 50 U.S.C.A. App., § 521). Section 201 of that Act provides as follows: 'At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act [sections 501-548 and 560-590 of this Appendix], unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.' Appellant asserts that on the day of the hearing his attorney duly filed an application for a stay under the Act and therein alleged that appellant had been in the military service since 1957; that he was currently stationed on the island of Guam; that it was not possible, because of military duties, for appellant to return to the United States in connection with the custody proceeding; and 'that his inability to be present in person materially prejudices his defense * * *.' In support of this application, appellant's counsel also filed an affidavit in which he averred of his own knowledge that appellant was in fact in the military service and stationed in Guam. He further stated that military duties prevented appellant's attendance, and that it was impossible, in his absence, to properly present a defense.
At the commencement of the October 6 hearing, appellant's counsel informed the trial judge that he was not prepared to defend appellant and requested that the court stay the custody proceedings until appellant was reassigned to the United States or was discharged from the service. In response to an inquiry by the court as to when appellant might be able to return and defend against the custody proceeding, appellant's counsel replied that he had no idea. Whereupon, the court denied the stay. At a subsequent stage in the proceedings, however, the court again indicated that it would be willing to postpone its decision if there was any possibility that appellant would be able to return within a reasonable length of time. Appellant's counsel volunteered no such information.
Appellant now contends that the court was required to grant the stay in the absence of an affirmative showing by respondent that appellant's ability to defend the action would not be materially affected by his military service. This contention is untenable.
In Boone v. Lightner (1943) 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587, a North Carolina court had denied a stay of proceedings to an army officer stationed in Washington, D. C. In holding that the denial did not constitute an abuse of discretion, the United States Supreme Court stated: '2. The [Soldiers' and Sailors' Civil Relief] Act makes no express provision as to who must carry the burden of showing that a party will or will not be prejudiced, in pursuance no doubt of its policy of making the law flexible to meet the great variety of situations no legislator and no court is wise enough to foresee. We, too, refrain from declaring any rigid doctrine of burden of proof in this matter, believing that courts called upon to use discretion will usually have enough sound sense to know from what direction their information should be expected to come. * * * We think the ultimate discretion includes a discretion as to whom the court may ask to come forward with facts needful to a fair judgment.' (Pp. 569-570, 63 S.Ct. pp. 1228, 1229.) The Court went on to note that the defendant had been able to prepare depositions and affidavits in support of his defense. The Court also pointed out that the affidavit in support of defendant's motion for a stay alleged only that leaves were not available but did not In Ridley v. Young (1944) 64 Cal.App.2d 503, 149 P.2d 76, the court held that a stay had properly been denied where there was no showing that the defendant could not obtain a leave of absence or that his defense would be materially affected by his absence at the trial. The court noted that the defendant's deposition was on file, that his attorney was throughly familiar with the case, and that the defendant had indicated no favorable facts to which he might have testified had he been present at the trial.
In Gates v. Gates (1943) 197 Ga. 11, 28 S.E.2d 108, the Georgia Supreme Court held that where an applicant for a stay under the Act undertakes by his verified application to show impairment of his defense by alleging conclusions to that effect, this evidence becomes subject to the rule that it must be construed most strongly against him. Accordingly, if the applicant fails to allege specific facts, such as an unsuccessful attempt to obtain a leave of absence, the court may find that no such facts exist and may conclude, in accordance with the reasoning of the Boone case, that 'the claim that inilitary service prejudiced the defendant was groundless, and that his absence 'was dictated wholly by litigious strategy.'' (P. 113.)
In the present case, appellant's application for a stay was supported only by the verified affidavit of his attorney to the effect that it was impossible to properly present a defense to the show cause order in the absence of appellant, and that appellant's military duties made it impossible for him to attend the hearing. The affidavit contains no statement that appellant was denied a leave of absence, hence the lower court was at liberty to conclude that he had not chosen to apply for one. Indeed, there was ample evidence indicating that appellant looked upon his impending transfer to Guam as an ideal opportunity to leave the jurisdiction of the Alameda County Superior Court and thereby avoid any further attempts on respondent's part to modify the custody order of December 1, 1959. It must first be recalled that appellant was notified of his assignment to Guam on April 12, 1961. Although it must have been apparent to appellant that respondent would be deprived of the extensive visitation rights which she had previously exercised and that she might therefore make another attempt to modify the custody order, appellant failed to notify either respondent or the court of his impending transfer until May 3, 1961, when he had already departed on leave without leaving any indication as to where he might be reached. As a direct result of appellant's devious strategy, respondent was unable to serve him with the show cause order until June 6, 1961, when appellant returned from leave and reported to Travis Air Force Base in order to depart for Guam. When appellant was served with the show cause order and the order restraining him from taking the children out of the state, he appears to have made no attempt to obtain a leave of absence, but merely took the children and departed for Guam.
In addition to these indications of a lack of good faith on appellant's part, there was also evidence that his absence from the hearing resulted in no real impairment of his defense. Appellant was represented by counsel throughout the hearing. Although it is true that appellant's attorney informed the court that he was not prepared to defend appellant, he seemed to be thoroughly familiar with the facts in the case and cross-examined both of the witnesses produced by respondent. Furthermore, the hearing was continued from June 20 until October 6 for the specific purpose of preparing a new probation report which would Appellant next contends that the Alameda County Superior Court lacked jurisdiction over the subject matter of the proceeding because appellant and the children had abandoned their former residence in Oakland and moved to Beale Air Force Base prior to the issuance of the show cause order. Appellant contends that this court may take judicial notice of the fact that Beale Air Force Base is located partly in Yuba County and partly in Nevada County. It is his contention that jurisdiction over guardianship and custody proceedings is dependent upon the child being an inhabitant or resident of the county in which the proceeding is commenced. (Titcomb v. Superior Court (1934) 220 Cal. 34, 41-42, 29 P.2d 206.)
This argument ignores the fact that the Alameda County Superior Court had previously acquired jurisdiction of the subject matter in 1959, when it issued an order denying respondent's application for a modification of custody. Appellant does not now contend that the court was lacking in jurisdiction at the time of the 1959 custody proceeding. Indeed, the court specifically found that appellant and the children were residing in Alameda County at that time.
In Greene v. Superior Court (1951) 37 Cal.2d 307, 231 P.2d 821, plaintiff wife obtained a divorce and an award of custody in the Santa Barbara County Superior Court. She then took the children to live with her in San Franciso, and subsequently petitioned the San Francisco Superior Court for letters of guardianship. Defendant husband then sought a writ of prohibition restraining the court from exercising jurisdiction over the proceeding. The California Supreme Court, in granting the writ, held that the general rule vesting jurisdiction over custody and guardianship proceedings in the superior court of the county of a minor's residence or temporary domicile is not applicable where the superior court of another county has made a prior award of custody. The court noted that where the original custody award is made in the court of another state, that court does not have a continuing exclusive jurisdiction, and the courts of this state, if the child is present or domiciled in California have jurisdiction over his custody. However, the rules governing an interstate situation of this nature have no application to jurisdictional conflicts within the state. Accordingly, the first court within the state which assumes jurisdiction over a custody proceeding retains it to the exclusion of all other tribunals in which the action might have been brought. 'If change of residence within the state makes it desirable that the court of another county have jurisdiction to modify the decree, the objective may be attained by a change of venue.' (P. 312, 231 P.2d p. 823.)
Appellant urges, however, that the Greene holding is applicable only where the California court first assuming jurisdiction over a custody proceeding is also the divorce court. This contention may not be sustained. In Marshall v. Superior Court (1959) 168 Cal.App.2d 71, 335 P.2d 122, petitioner brought a divorce action against his wife in Marin County and obtained an award of temporary custody. Subsequently, the wife obtained a divorce in Nevada, in which action petitioner appeared through In the present case, the Alameda County Superior Court assumed jurisdiction over the custody proceedings prior to the 1959 hearing. Since its jurisdiction was exclusive and continuing, respondent was required to apply to that court for any further modification of custody. If appellant's change of residence made it desirable that the courts of Nevada or Yuba counties have jurisdiction over the matter, appellant was at liberty to apply for a change of venue. The record reveals that he did not do so.
Appellant's final contention is that the lower court abused its discretion in awarding custody of the children to respondent because there was no evidence of changed circumstances occurring subsequent to the 1959 custody order. We do not agree. The record reveals that respondent has been remarried for several years and now has two children by this marriage; that she takes excellent care of these children; that she has a fine home located a block away from a new grammar school; that her present husband is desirous of having the children in the family; that they are financially able to care for them; and that the children get along well with the two children of respondent's present marriage. There was also evidence, in the form of respondent's testimony, that the children seemed to have an unusually great need for love and affection on their visits to respondent's home, and that one of the children had been taken to a psychiatrist in Guam. There was evidence that respondent's present husband had left the Air Force subsequent to the 1959 custody award for the specific purpose of maintaining a stable home where the children would be able to grow up and live permanently in one community. He is presently employed by the Sun Life Assurance Company and earns an average monthly income of $700. In addition to this evidence, the court was also entitled to take into consideration appellant's transfer to Guam and the fact that it would deprive the children for an indeterminate period of any opportunity to visit with their mother.
Although it is true that some of these circumstances, such as respondent's remarriage and her ability to provide an adequate home for the children, were in existence at the time of the 1959 custody order, it cannot be said as a matter of law that there were not sufficient changes occurring subsequent to that order to warrant a modification of custody. In Kissinger v. Kissinger (1959) 174 Cal.App.2d 738, 345 P.2d 66, the court affirmed an order changing custody from the father to the mother upon a showing very similar to that in the instant case. (See also Goto v. Goto (1959) 52 Cal.2d 118, 123, 338 P.2d 450.) In this case, there was ample evidence indicating that the children's welfare would best be protected by placing them in respondent's custody.
Order affirmed.
KAUFMAN, P.J., and AGEE, J., concur.