Ashwell v. Ashwell
| Decision Date | 24 August 1955 |
| Citation | 286 P.2d 983,135 Cal.App.2d 211 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Norma Jeanne ASHWELL, Plaintiff and Appellant, v. Curtis Lee ASHWELL, Defendant and Respondent. Civ. 8694. |
Malone, Dennis & Schottky, Sacramento, for appellant.
Johnson & Lemmon, Sacramento, for respondent.
On August 17, 1953, an interlocutory decree of divorce was entered in an action brought by Norma Jeanne Ashwell, appellant herein, against Curtis Lee Ashwell, respondent herein. The decree was granted to Norma upon the ground of extreme cruelty and upon default of Curtis. Custody of the four children of the marriage was given to Norma. The oldest of the children was six and the youngest less than two. During the interlocutory period and on January 19, 1954 Curtis filed a notice of motion to modify the interlocutory decree by taking the custody of the children from Norma and awarding that custody to Curtis. The notice of motion stated that the modification sought would be to the effect that Norma was not a fit and proper person to have custody. After a hearing the existing decree was modified to give legal custody of the children to Curtis. There was no express finding that Norma was not a fit and proper person to have custody nor that she was not properly caring for them nor that she maintained them in an improper home. If the order is to be supported upon the ground alleged in the notice of motion it can only be because, if such findings had been made, they would have been sustained by the evidence, for, unless that be so, then it seems clear to us that the change in custody constituted an abuse of discretion in view of the previous and recent adjudication that Norma was a fit and proper custodian and that the welfare of the children required that she have their custody and control; that is, there must be sufficient evidence that a change had taken place after the granting of the interlocutory decree and that thereby the welfare of the children was endangered. Munson v. Munson, 27 Cal.2d 659, 166 P.2d 268; Prouty v. Prouty, 16 Cal.2d 190, 193, 105 P.2d 295, 297--there the court said: 'It must be borne in mind that in every proceeding to modify a provision for the custody of a minor child the burden is on the moving party to satisfy the court that conditions have so changed as to justify the modification.' Washburn v. Washburn, 49 Cal.App.2d 581, 122 P.2d 96; In re Inman, 32 Cal.App.2d 130, 134, 89 P.2d 421; Foster v. Foster, 8 Cal.2d 719, 726-728, 68 P.2d 719, 722--'until some change of circumstance arises which makes a modification of the former order of custody advisable from the point of view of the welfare of the child, the court will give effect to the former order and will refuse to make any modification of such order'. The fundamental issue in a child custody proceeding is whether, as of the time a modification is sought, such an order is reasonably necessary to the welfare of the children. In examining into that issue the court is to be guided 'By what appears to be for the best interests of the child * * *', bearing in mind that 'As between parents adversely claiming the custody, neither parent is entitled to it as of right; but other things being equal, if the child is of tender years, custody should be given to the mother; * * *.' Civ.Code, sec. 138. In the resolution of the issue as to which of two parents shall have custody much is committed to the sound legal discretion of the trial court and the decision will not be reversed on appeal unless there is a clear abuse of discretion.
Norma has appealed from the order changing custody of the children and here urges that in this case the trial court did abuse judicial discretion and that the application of the foregoing rules demand a reversal of the order. Giving full scope to the showing made before the trial court, we are constrained to hold that appellant's contentions are sound and that the decree must be reversed.
A sufficiently full summary of the evidence follows: Norma gave birth to a fifth child on February 14, 1954 (conceived prior to the interlocutory decree). The father of the child was one Barney Cassella. Norma, the five children and Cassella were living in the same house when the motion to modify the decree was heard. Curtis was a master sergeant in the United States Army, stationed in Sacramento. That county had also been the situs of the domicile of the parties when the decree of divorce was granted. Curtis testified he had visited the children about once a week and a number of times had found them in charge of a 12-year old girl. He said they were generally raggedly dressed in dirty clothes and appeared to need a bath; that whenever he visited Barney Cassella was always present; that Norma and the children had, after the decree, moved from a residence in Sacramento and were living in West Sacramento, across the river in Yolo County; that on December 23, 1953, at about 10 P.M. he visited there and Cassella answered the door and was improperly dressed (he did not specify in what the impropriety consisted); that Norma then told him she was pregnant, but denied that Cassella was responsible. Curtis stated to the court that if he obtained custody of the children he intended to get a discharge from the Army and take the children back to Virginia to live with his parents who were living on a farm three miles out of Huddleston; that the home was an average home, with access to schools and churches; that his parents were Mormons; that his mother was 45 years of age and his father 54 years old; that he, Curtis, is a mechanic by trade and had been offered a job in Huddleston and expected to support his children from his earnings. He said he had never seen any improprieties between Norma and Cassella.
Barney Cassella testified he was a taxi driver employed in Sacramento and since November, 1953 had been living in the same house with Norma and the children; that he rented the house; that before that time he rented an apartment from Mrs. Ashwell in Sacramento; that he had had sexual intercourse with her several times, but not since June of 1953; that he was the father of the child she bore February 14, 1954; that when he moved to West Sacramento it was to a house which he rented which had three bedrooms, one of which was occupied by him and his adult nephew, one by Norma with the new baby and the youngest Ashwell child, and the other by the three older children; that he loved Norma and intended to marry her as soon as her divorce became final. Norma testified that Cassella was the father of her last born child; that she and Cassella had had no...
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