Opinion
Hearing Granted Nov. 1, 1960.
Opinion vacated 10 Cal.Rptr. 261.
Lew M. Warden, Jr., Oakland, for appellant.
Walter H. Medak, Walnut Creek, for respondent.
BRAY, Presiding Justice.
Plaintiff appeals from that portion of an order modifying the final decree of divorce, transferring the custody of the parties' two minor children, Sharon Margaret and Joseph, from her to defendant.
The order also transferred custody of their minor child, Arthur, Jr. (also called Raymond) from defendant to plaintiff. Neither party appeals from this portion of the order.
Questions Presented.
1. Did the court abuse its discretion in making such transfer?
2. Did the court abuse its discretion in allowing plaintiff only $100 attorney's fees?
Record.
This drams started in 1955 when a divorce action between the parties was commenced. Custody of all three children was then awarded plaintiff. April 2, 1956, pursuant to a stipulation and property settlement agreement of the parties, custody of Raymond, the oldest of the children, was awarded defendant, while plaintiff was awarded the custody of the two younger children, Margaret and Joseph. These custody orders were carried into the final decree on April 3, 1957. Pursuant to stipulation, on April 17, 1957, certain portions of the interlocutory and final decrees concerning support were modified, but the custody provisions of those decrees were ordered to remain in full force and effect. Except for brief visits and vacations when Margaret and Joseph visited defendant, the two children resided with plaintiff until about April 15, 1958. Then, at plaintiff's request, defendant took the children into his home for a period of approximately two weeks during Easter vacation, while plaintiff moved from her then home in Oakland to Alameda. The children then returned to plaintiff, remaining with her, except for short vacations and week ends with defendant, until about September 28, 1958, when plaintiff was hospitalized as the result of an automobile accident. Because of this plaintiff asked that defendant take the two children to live with him and Raymond who had lived with defendant since the time of the interlocutory decree, until plaintiff 'got back on her feet.' Defendant agreed. In the latter part of December, 1958, plaintiff advised defendant that she wanted the children to return shortly after the first of the year. On January 3, 1959, plaintiff requested that the two children be returned to her on January 10. Defendant informed her she would have to go to court go get them. On January 6, plaintiff was again injured in an automobile accident and hospitalized for approximately two weeks. At the time of the Easter vacation, plaintiff again asked defendant for the children and was told to wait until school was out. In June plaintiff married her present husband, Donald Plummer. Defendant continued to refuse to deliver the children. Plaintiff on July 17 picked them up when defendant was not present, and has had them ever since. Defenant, the day before, had filed a proceeding for change of custody.
In the meantime Raymond had not been getting along with his father, and had been getting into trouble. On May 19, 1957, he was caught stripping a stolen bicycle. In May, 1959, Raymond ran away from his father's home and on May 28 was picked up in Merced with a boy companion in a stolen car. On July 17, Raymond phoned plaintiff that if she did not take him away from his father, he would run away again as life with his father was intolerable. That day she took him to her home together with the other two children. He has remained there ever since.
A somewhat protracted hearing was held in which the court admitted in evidence the 'Report and Recommendation of Probation Officer' which contained the recommendation of the deputy probation officer making the report, and which the court said contained 'a great deal of hearsay and obviously many, many conclusions' as well. 'The Court in no way is bound by the recommendations 1. Abuse of Discretion.
'In a divorce proceeding involving the custody of a minor, primary consideration must be given to the welfare of the child. The court is given a wide discretion in such matters, and its determination will not be disturbed upon appeal in the absence of a manifest showing of abuse.' Gudelj v. Gudelj, 1953, 41 Cal.2d 202, 208, 259 P.2d 656, 660. 'Every presumption supports the reasonableness of the decree.' Runsvold v. Runsvold, 1943, 61 Cal.App.2d 731, 733, 143 P.2d 746.
In spite of the broad discretion given the trial court in this matter, we are constrained to hold that there was an abuse of discretion in transferring the custody of the two younger children to the father. At the time of the hearing Raymond was 16 years old, Margaret 13, and Joseph 8. Taking the evidence most strongly against plaintiff it clearly appears that she had gone through a period of emotional disturbance and instability, but that she had apparently recovered. During that period it appeared that she was prone to leave the children a great deal to the care of a Mrs. Murdock who rented a portion of the house in which plaintiff and the two children lived. The house belonged to the parties and Mrs. Murdock received free rent for looking after the children. Plaintiff during that time was employed away from home in the daytime and went out a good deal at night, returning frequently at very late hours. Curiously enough, although defendant testified that during this period while the children were with their mother they were nervous, unhappy and upset, defendant did not consider the situation serious enough to seek to have the children's custody changed. He did not bring this proceeding until plaintiff's circumstances had changed for the better. (Actually the circumstances of the children under the mother had not changed for the worse since the making of the original custody order, but had changed for the better.) During the former period the mother changed residences approximately seven times and had two unfortunate marriages. One was to Russell Fazio in February, 1956, which plaintiff claims was never consummated. Fazio obtained an annulment in July, 1957. The other was to Charles Cummings in December, 1957. Plaintiff sued him for divorce in 1958, the final decree being entered in May, 1959. In 1957 plaintiff took an overdose of sleeping pills which Cummings told the probation officer was in a suicide attempt, which purpose she denied. In 1957 there was an incident in which a gun was fired in a scuffle with Cummings, who told the probation officer that she was again attempting suicide. She claimed that it was an accident, as she did not know the gun was loaded. On September 27, 1958, two days after an automobile accident, she voluntarily committed herself to Agnews State Hospital, where she remained for some 16 days. The diagnosis was psychoneurotic anxiety reaction and inadequate personality. The prognosis was 'reasonably good' with psychotherapy recommended. Plaintiff married her present husband, Donald Plummer, June 25, 1959. At that time plaintiff was employed. However, feeling it was more important for plaintiff to be a mother than a wage earner, Plummer required plaintiff shortly after their marriage to terminate her employment. Joseph's school record has improved since he went to live with his mother.
Summing up the testimony of the witnesses against plaintiff, it is to the effect that from the separation of plaintiff and defendant in 1955 until sometime in 1959, plaintiff was disturbed and upset, seemed interested in men and in staying away from home until late hours. During this period, however, there was someone in the home to look after the children. They were never physically neglected nor were they dirty. These facts appear clearly from the evidence: that plaintiff has recovered from her instability, the court itself stating, 'There is some indication that possibly at this late point Mrs. Plummer has stabilized herself' (there was no evidence that she has not); that over the period from 1955 to September 28, 1958, the two younger children were in plaintiff's custody and in spite of plaintiff's instability during that time there is no evidence that the children have suffered any ill effects therefrom; that from July 17, 1959, until the time of the trial, October 22, the three children were in plaintiff's custody and living happily together and being well taken care of; that, for the first time since 1956 the three children are united; that each child has expressed a real desire that he not be again separated from his siblings; that each child has stated a preference to be with the mother; that the relationship between each child and their present stepfather, Plummer, is a close and friendly one; that physically the Plummer home is completely adequate, containing as it does four bedrooms; that the children are fond of Plummer and he of them; that Plummer is financially prepared to take care of the children as his income is from $1,000 to $2,000 per month, and is willing to do so; that defendant is not able to control Raymond and that both parties agree that he cannot be returned to the father; that each child has expressed a dislike for the woman to whom defendant is engaged and whom defendant contemplates marrying when this custody proceeding is concluded.
The court at no time found that plaintiff is an unfit mother, nor unfit to take care of the children. The important question is the welfare of the children. Placing the younger children with the father means splitting the children and turning the two younger ones over to the care of the father and Mrs. Murdock, who is not too friendly toward plaintiff, or to Mrs. Strom for whom the children have expressed dislike; again changing schools for youngsters who unfortunately have experienced a number of school changes already, and who apparently are doing better school work now than heretofore, and taking them away from their mother with whom they desire to live.
On the other hand, leaving the children with the mother keeps them all together, gives them a mother's care which the younger children need more than that of strangers (see section 138 of the Civil Code providing that other things being equal between the parents, children of tender years should be given to the mother), meets the desires of the children, gives them more adequate physical surroundings than living in a flat and a more adequate financial situation, and keeps them in a school where they are progressing. It is obvious that the best interests of the children require that they remain with the mother. The court seemed to be of the view that the children should be taken away from the mother until she demonstrated over a period of time longer than had existed that she was restored to stability. In Munson v. Munson, 1946, 27 Cal.2d 659, 665, 166 P.2d 268, 272, the court quoted from Prouty v. Prouty, 1940, 16 Cal.2d 190, 194, 105 P.2d 295: "The question as to whether a parent is a fit or proper person to have the custody of a minor child refers * * * to his or her fitness at the time of the hearing Bemis v. Bemis,
Experience has shown that the father, even with the best of intentions, has been unsuccessful as a parent in handling Raymond. On the other hand, the mother in spite of her past faults, has been successful as a parent in handling the two younger children. The court believed that she will be successful in taking care of Raymond. Under all the circumstances of this case, to take the younger children away from the parent who is taking good care of them and who the court feels can take proper care of the older boy, and placing them with the parent who has been unsuccessful in taking care of the older brother, is an abuse of discretion.
The trial court pointed out that in spite of the difficulties between the parents, the younger children were affectionate, loyal and respectful toward each parent. Because the children are such, it is vital that the parties take to heart the statement of the court that the parent not having custody should have liberal visiting rights with the children, including the right to have them visit him. '[W]e should see to it that the children spend as much time as possible with the parent in whose custody they are not.'
In view of our decision we deem it unnecessary to consider the other claims of error asserted by plaintiff.
2. Attorney's Fees
The court allowed plaintiff $100 attorney's fees, stating, in effect, that the sum was not an adequate one for the services rendered by plaintiff's counsel, but because of defendant's net income, $400 per month, out of which he was being ordered to pay plaintiff $60 per month for Raymond's support, the 'economics' of the situation would not justify a higher allowance. We see no abuse of discretion in this award.
That portion of the order transferring the custody of the two younger children to defendant is reversed.
TOBRINER and DUNIWAY, JJ., concur.