Ducharme v. Ducharme
| Decision Date | 01 July 1957 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Marllyn J. DUCHARME, Plaintiff and Appellant, v. Robert L. DUCHARME, Defendant and Respondent. Civ. 22079. |
David L. Mohr and Perry Bertram, Los Angeles, for appellant.
Robert L. Ducharme in pro. per. for respondent.
This is an appeal from an order (1) modifying a custody decree by changing custody of two minor children from their mother to their father; and (2) retroactively terminating support for the children.
The appeal is presented on a very brief settled statement. However, it includes the report and recommendation (in evidence by stipulation) of the court assistant appointed to investigate the matter.
Plaintiff and defendant were married in August, 1948, and lived together until early in 1952. Plaintiff filed suit for divorce in April of that year, and an interlocutory decree was granted to her the following August. By this decree plaintiff was awarded custody of the two boys, Dale, now approximately six years of age, and Darryl, about eight and a half. Defendant was ordered to pay $75 a month for their support, and was granted the right of reasonable visitation. A final decree was entered on August 14, 1953.
On August 18, 1953, plaintiff married Frank Drye, who was 'predominantly of Negro blood.' Eleven days later plaintiff bore him a child. Plaintiff and the children lived with Drye in a mixed neighborhood until October, 1954, when she separated from him and, together with the two children here involved, went to live with her maternal aunt, Mrs. Knittle, in a two-bedroom home where she has since resided. She filed suit for divorce from Drye in August, 1955. The custody of the child of that marriage was awarded to the father, 'as the mother felt it would be better to allow the child to remain with the father because the child is of mixed blood.'
During the latter part of July, 1955, defendant made arrangements with plaintiff to take the children for the summer. They were not thereafter returned to her, although plaintiff had requested their return. Defendant testified that he took the children after receiving a call from plaintiff's aunt, Mrs. Knittle. This conversation is reported by the court assistant, to the effect that 'the maternal aunt [Mrs. Knittle] asked him to do something because the mother had another man in the home and was living with him in the presence of the children.' Mrs. Knittle, however, denied having had such a conversation with defendant. Nevertheless, it does appear that plaintiff was keeping company with a man who was employed as a milkman. She testified that 'on three occasions when they had been out together and arrived home fairly late, she retired to her room with the children, but he lay down on the living room sofa to nap until it was time for him to go to work.' Mrs. Knittle testified that 'she was present on all three occasions and did not retire until after the milkman went to work.'
Defendant arranged with Mr. and Mrs. Mortensen to live in their home with the boys. The Mortensens have a four-bedroom house in Reseda, California, one room of which is used by the two boys and one room by the defendant. The Mortensens have no children, and Mrs. Mortensen is not employed outside the home; she cares for the children during defendant's absence at work. One of the persons interviewed by the court assistant stated that she knows that 'Mrs. Mortensen is giving the children proper care.' Defendant plans to keep the children in the Mortensen home; he feels that they are 'well supervised by Mrs. Mortensen.' Mrs. Mortensen reported to the investigator that when the children came to live in her home they were not very clean, and that they were subject to enuresis, but that this condition no longer existed. She also reported that the children had gained weight. This was corroborated by the father, who also stated that he has taken some of the 'smart aleckness' out of them. Statements to the investigator indicate that defendant is a good father to the boys. A report from the principal of the school states that 'Darryl is making an excellent adjustment'; he is 'well cared for' and is 'exceptionally well behaved.' Dale, of course, was not of school age at the time the investigation was made in November, 1955.
The court commissioner who heard the case found that the best interests of the children required that their custody be awarded to the defendant, with right of reasonable visitation on the part of the plaintiff, and that the order requiring defendant to pay $75 a month to plaintiff for their support be terminated as of July 28, 1955. This order was made on December 8, 1955. Exceptions were taken on behalf of plaintiff, and, after a hearing by Judge Doyle, the recommendations of the commissioner were approved and became the order of the court, from which this appeal is prosecuted.
Plaintiff contends (1) that there is no evidence to support the order changing the custody of the children; and (2) that the court had no power to modify retroactively the order for the support of the children.
In a change of custody case, Disney v. Disney, 121 Cal.App.2d 602, at page 606, 263 P.2d 865, at page 869, this court stated that ...
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