Clarke v. Clarke
| Decision Date | 28 April 1950 |
| Citation | 35 Cal.2d 259,217 P.2d 401 |
| Court | California Supreme Court |
| Parties | CLARKE v. CLARKE. L. A. 21201. |
Clarence Hansen, Los Angeles, for appellant.
Vaughan, Brandlin & Wehrle and Warren J. Lane, Los Angeles, for respondent.
The plaintiff has appealed from an order modifying the provisions of an interlocutory divorce decree with respect to custody of the minor daughter of the parties.
On March 29, 1948, the plaintiff husband filed a complaint for divorce on the ground of extreme cruelty. At that time the child was twenty months old. In the complaint it was alleged that the defendant wife was a fit and proper person to have the care, custody and control of the child. A property settlement agreement provided that the defendant should have custody of the child except for the months of July, August and the first two weeks of September of each year, when the plaintiff should have custody, with reasonable rights of visitation by both parties, and that neither party should remove the child from the state without the written consent of the other. The interlocutory decree, entered May 10, 1948, without reference to the agreement, provided only that the defendant should have the custody of the child with the exception of the period stated when the plaintiff should have custody.
The parties had formerly lived in New York. After the decree they continued to reside in California until July, 1948, when the wife returned to New York to find employment. She obtained employment and established a home with her sister in the latter's apartment in New York City. In October 1948 with the plaintiff's consent the defendant's mother took the child to New York, joined the family group, and assisted the defendant in the care of the child. During this time the defendant admittedly mittedly had a questionable love affair with one Alfred Korf. The plaintiff received information of the affair, went to New York, and on March 10, 1949, while the defendant and Korf were at a theatre, took the child from the apartment without the defendant's consent and brought her to California.
The defendant's petition for a writ of habeas corpus and the plaintiff's application for an order modifying the interlocutory decree to award custody to him, came on for hearing on April 7, 1949. Both parties, their counsel, and the child were present. At the termination of the hearing the court made the following order:
The principal contention on the appeal is that the court abused its discretion in not modifying the interlocutory decree by awarding unlimited custody of the child to the plaintiff. It is argued that the defendant's conduct required the requested modification.
The rules for the guidance of the trial court in awarding custody are stated in section 138 of the Civil Code, viz.: (1) by what appears to be for the best interest of the child in respect to its temporal and its mental and morla welfare; and (2) as between parents adversely claiming custody, neither is entitled to it as of right, but other things being equal, if the child is of tender years it should be given to the mother.
The court had before it evidence of the conduct of both parties. The defendant admitted the affair with Korf and testified that they had plans to marry as soon as the divorce decree should become final which would be in about a month's time from the date of the hearing. There is also testimony that she and her intended husband, who was then a dental student, were able to take care of and would make a home for the child, who at that time was not...
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