Bender v. Superior Court In and For Merced County

• Decision Date: 26 July 1957
• Citation: 314 P.2d 54,152 Cal.App.2d 817
• Court: California Court of Appeals Court of Appeals
• Parties: Yvonne BENDER, now known as Yvonne Beardslee, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA IN AND FOR The COUNTY OF MERCED, Respondent. Civ. 9327.

Page 54

314 P.2d 54

152 Cal.App.2d 817

Yvonne BENDER, now known as Yvonne Beardslee, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA IN AND FOR The COUNTY OF MERCED, Respondent.

Civ. 9327.

District Court of Appeal, Third District, California.

July 26, 1957.

Clyde B. Dalton, San Francisco, and Lionel Browne, San Francisco, of counsel, for petitioner.

Lee Alex MacNicol, Merced, for real party in interest.

WARNE, Justice pro tem.

This is a proceeding in mandate.

The facts as disclosed by the record are as follows: In 1949 Carroll J. Bender was awarded an interlocutory decree of divorce from Yvonne Bender, petitioner herein. The decree provided that Yvonne have the custody, care and control of Linda Irene Bender, the minor child of the marriage. Carroll was given the right to see and visit with Linda at all reasonable times. In 1950 a final decree of divorce was made and entered and the custody provisions of the interlocutory decree were continued in full force and effect. In 1954 the custody provisions of the divorce decree were modified and the care, custody and control of Linda were awarded to Carroll on condition that he place her in a boarding school in San Francisco and that both Carroll and Yvonne have the right to the company of Linda on alternate weekends and that each have the physical custody of the minor child for one-half of the summer vacation. Linda was placed in the Immaculate Conception Academy in San Francisco. In May, 1957, Carroll sought further modification of the custody provisions concerning Linda, now ten years of age, so that he could take her to the Philippine Islands during his tour of duty there with the United States Air Force and place her in a parochial school in the vicinity of Clark Field. Yvonne opposed the modification proposed by Carroll and on May 23, 1957, petitioned the court for an order modifying the custody provisions so as to place Linda with her. A hearing was held on both petitions on May 23, 1957, and on June 3, 1957, the court made and entered its order permitting Linda to be taken out of the continental limits of the United States. Since the order allowed the removal of the child from the state it was stayed by operation of law for a period of 30 days from the date of its entry. Code Civ.Proc. § 949a.

Following the entry of the June 3, 1957, modification order and within the 30 day automatic stay, Yvonne noticed a motion to vacate and set aside the provisions of the order permitting Linda to be removed to the Philippine Islands on the...