Denham v. Martina

• Decision Date: 21 March 1963
• Citation: 29 Cal.Rptr. 377,214 Cal.App.2d 312
• Court: California Court of Appeals Court of Appeals
• Parties: Roger Alfred DENHAM, Plaintiff and Appellant, v. Genevieve Blanche Denham MARTINA, Defendant and Respondent. Civ. 166.

Page 377

29 Cal.Rptr. 377

214 Cal.App.2d 312

Roger Alfred DENHAM, Plaintiff and Appellant, v. Genevieve Blanche Denham MARTINA, Defendant and Respondent.

Civ. 166.

District Court of Appeal, Fifth District, California.

March 21, 1963.

Barreiro & Dilling, James R. Dilling, Hanford, for appellant.

Walch, Griswold, Braden & Dittmar, S. C. Dittmar, Jr., Hanford, for respondent.

CONLEY, Presiding Justice.

The central question involved on this appeal is whether the trial court followed applicable adjective law in the process of setting aside an order of over seven years' standing which gave the custody of two infants to their paternal grandparents in accordance with a property settlement agreement, and awarding their custody to their mother without making a finding relative to her fitness or unfitness, after an undue restriction of the evidence on the subject. The result that would follow an enforcement of the order appealed from would be that two healthy, happy, well-adjusted children would be permanently removed from their present home, their contact with the environment they have grown up in would be severed, their love for the people who have raised them in their formative years would be nullified, and they would, like pioneers in reverse, go to strange surroundings in a midwestern state, under the domination of a stepfather they have never seen, with a mother whose mental and moral fitness is at least subject to serious question; what, if any, advantage for the welfare of the children would result from such an enforced move is not apparent from the record. The circumstances of the case are such that our insistence upon a strict adherence to procedural law seems imperative.

On May 23, 1955, Roger Alfred Denham was granted an interlocutory decree of divorce from the respondent after a trial by default before another judge. Pursuant to the express terms of the property settlement agreement between the parties, the court awarded custody of the two children, Roger Gary Denham, then aged two and one-half years, and Penny Denise Denham, aged ten months, to the paternal grandparents, Ivo and Vera Denham. A final decree of divorce was entered on June 4, 1956, which approved and adopted the custody provisions of the interlocutory decree.

On June 18, 1962, over seven years after the interlocutory decree, Genevieve Blanche Denham Martina (now domiciled in Illinois and remarried for the third time since her divorce) filed an application for modification of the decrees as to child custody. On June 25, 1962, the plaintiff served and filed a notice of motion for modification of the interlocutory and final judgment of divorce, and the property settlement agreement incorporated by reference in the decrees; this motion was based on an affidavit, all of the records and proceedings in the action and additional oral evidence. The two applications were consolidated and heard by the trial court at the same time. Thus, each of the parents sought a modification of the previous interlocutory and final decrees, which pursuant to the written agreement of the parties to the divorce had awarded custody to the paternal grandparents; each of the two contests, tried together, was between one parent and the grandparents; the grandparents, though not represented by counsel, were personally present at the hearing. After hearing oral testimony the court made an order awarding custody of the two minor children to the defendant. Plaintiff promptly filed a notice of appeal; a petition in this court for a writ of supersedeas was granted on July 24, 1962 (Denham v. Martina, 206 A.C.A. 29, 23 Cal.Rptr. 757).

The trial court has never found, at any stage of the case, that either parent was a fit or unfit person to have the custody of the children. During the hearing resulting in the order from which the present appeal was taken the judge who presided made remarks which indicated thinking both ways as to the fitness or unfitness of the parents, but the final conclusion of the court on this subject is not in the record, as no findings were made. The judge at one point during the hearing indicated that he would give major weight to the latter part of subdivision (2) of section 138 of the Civil Code, '* * * other things being equal, if the child is of tender years, custody should be given to the mother * * *'; this viewpoint would completely overlook the fact that when the children were babies (i. e., ten months and two and one-half years of age) the respondent apparently was deficient in motherly instinct as evidenced by her indifference to their custody; furthermore, such a viewpoint seems oblivious to the requirement stated in Sanchez v. Sanchez, 55 Cal.2d 118, 121, 10 Cal.Rptr. 261, 263, 358 P.2d 533, 535, that '* * * primary consideration must be given to the welfare of the child.' (Emphasis added.) (See also Gudelj v. Gudelj, 41 Cal.2d 202, 208, 259 P.2d 656; Civ.Code, § 138, subd. (1); 36 So.Cal.L.Rev., no. 2, p. 257, note 14) and to the prerequisite that 'other things' must be equal before the application of the precept favoring maternal custody. The phrase 'tender years' as used in the statutory subformula has never been defined with exactitude. As is said in Russell v. Russell, 20 Cal.App. 457, 461, 129 P. 467, 468: 'There cannot be any fixed and certain age of minority which, in all cases and for all purposes, can be said to constitute a child of 'tender years." (See also Ludlow v. Ludlow, 89 Cal.App.2d 610, 616, 201 P.2d 579.)

A careful and painstaking review of the entire record makes it extremely doubtful whether the respondent could be found to be a fit and proper person to be awarded custody of the children at this time. Genevieve Blanche Denham Martina admitted on the stand that when the interlocutory decree was issued she was 'unstable, immature and not a very good, fit person to be a mother at that time.' Since the interlocutory decree she has married three times. One of her intervening husbands was Russell Cadwell, Jr., who, incidentally, was a witness at the hearing. She testified that she went to Mexico with him before the final decree of divorce, '* * * got married one weekend and I went off to Reno the following week or so.' She at that time wrote a letter to the plaintiff, saying that she believed that she was pregnant by Cadwell and that she wanted a divorce; she did not ask for custody of the children. The letter reads as follows:

'August 25, 1955

Thur. nite [sic]

'Dear Roger----

'Well as you know I am in Reno, trying to get a divorse [sic].

'Rog Please sign the pappers [sic]. I only want a divorse [sic] I don't want anything else. I'm not asking for the kids. You & I both know we couldn't have ever made it.

'I am going to have Russ's baby I'm almost sure. Anyway I've been getting a little sick--So Please Roger, if not for me, for the baby, I don't want my baby to be nameless. Please give me my freedom--that[']s all I'll ever ask of you.

'As Ever

Gan'

'P.S. Please!'

She testified that she knew she was not pregnant by Cadwell when she wrote the letter and that she then said that she was in order to gain appellant's consent to a divorce. The marriage to Cadwell was later annulled. She then married a second man and divorced him. In 1959 she married her present husband, Steven Martina, and since then has had one child, a boy. Mrs. Martina's testimony is uncertain as to whether this child was born only one month after her present marriage or at a later time. When she was asked the date she married her present husband, she replied '1959' in the month of 'July.' She twice gave 1959 as the date; when asked how old her son by her present husband was, she responded, '* * * he will be three August the 30th.' However, when counsel for plaintiff asked, 'Now, isn't it true, Mrs. Martina that this present child you have by this man, he was conceived before your marriage, was he not?' She answered, 'He was not.' Thereafter she testified that '* * * when I got back four years ago, well, I got pregnant four months after I was married, and I had a baby, and I came out here and I went back, and * * *.' No explanation is given concerning this final testimony, or the specified contradictions in her evidence.

The record shows further that Mrs. Martina was for a time in a mental institution.

Mrs. Martina has visited the two children only three or four times in the past seven years. She admits that she has not remembered them by sending gifts on every birthday; she has never sent valentine greetings; she has from time to time written to their grandmother or to their father inquiring about the children, but 'Not very often.' She had not been in California for two years before June 1, 1962; arriving in Hanford on a Saturday night, she did not see the little boy or girl until the next Wednesday or Thursday, as they were then over on the coast. Respondent stated explicitly that she intends to take the children back to Chicago with her. These children have never been there and have never seen her husband, or any of the relatives of their mother living in Chicago.

Mrs. Ethel E. Donahue, mother of the respondent, testified that she has not seen the children very often, although she lived in Kings County where the paternal grandparents also resided. Under cross-examination, Mrs. Donahue admitted that the little boy and girl like their father very much and also that there was a time when her daughter was sick and she was afraid for the safety of the children while they were with their mother.

Audrey Cox, sister of plaintiff, testified that the home occupied by appellant was adequate, that the neighborhood was 'nice,' that it was a happy home, that appellant and his wife were devoted to the children, and that the children loved their father very much. The witness also verified that during the past seven and one-half years the mother had made only four trips to California to see the children, and that even while she was here she did...