Gantner v. Gantner

• Decision Date: 11 July 1952
• Citation: 246 P.2d 923,39 Cal.2d 272
• Court: California Supreme Court
• Parties: GANTNER v. GANTNER. S. F. 18573.

Page 923

246 P.2d 923

39 Cal.2d 272

GANTNER v. GANTNER.

S. F. 18573.

Supreme Court of California, in Bank.

July 11, 1952.

Morris Lowenthal and Juliet Lowenthal, San Francisco, for appellant.

Young, Rabinowitz & Chouteau, Harry S. Young and John E. Anderton, San Francisco, for respondent.

TRAYNOR, Justice.

Neilma and Vallejo Gantner were married in 1941. Two children were born of the marriage, Vallejo and Carillo, now aged eleven and nine. On August 9, 1949, the trial court entered an interlocutory decree granting Neilma a divorce and awarding Neilma and Vallejo joint legal custody of the children. Neilma was given physical custody of the children subject to Vallejo's right to visit them and to have them with him several week-ends each month. Neither party appealed. The final divorce decree contained the same custody provisions as the interlocutory decree.

On April 17, 1951, Vallejo filed a notice of motion requesting that the custody provisions be modified to give him physical custody of the children. The motion was heard before the same judge who had heard the divorce action. The court found that it was in the best interests of the children for them to remain in Neilma's custody and denied the motion. It also modified the decree, limiting Vallejo's right to have the children with him and his right to visitation. The present appeal followed.

Vallejo contends that the trial court abused its discretion in refusing to transfer custody to him. The trial court has broad discretion in such matters, and its decision will not be reversed or modified by an appellate court unless the record clearly shows an abuse of that discretion. Prouty v. Prouty, 16 Cal.2d 190, 191, 105 P.2d 295; Foster v. Foster, 8 Cal.2d 719, 730, 68 P.2d 719; cases collected in 9 Cal.Jur. 798.

There is abundant testimony to support the trial court's determination that it is to the best interests of the children to remain with Neilma. Witnesses testified that the children were mentally and physically healthy, that the relationship between Neilma and the children was one of love and companionship, and that they received proper care and attention. Vallejo introduced considerable testimony to the effect that Neilma was not taking proper care of the children. The trial court did not accept Vallejo's version of the facts and resolved conflicts in the evidence in favor of Neilma. Foster v. Foster, supra; Bush v. Bush, 81 Cal.App.2d 695, 699, 185 P.2d 38.

Vallejo also contends that the trial court erred in several rulings regarding admission and rejection of evidence.

The parties stipulated that the trial judge could privately interview the children in chambers. Afterwards the judge stated for the record that the children appeared equally devoted to both parents. He stated that the boys informed him that they preferred living in the country to living in the city, but did not express any preference for one parent over the other. Neilma lives in the county and Vallejo lives in the City. Apparently fearing that the court might give undue weight to the children's preference for the country, Vallejo requested the court to ask the children 'in open court if necessary' which parent they preferred. The request was denied. No error appears in this ruling. The court pointed out that little weight would be given to the children's preference, since they did not appear to him to be of sufficient age to form an intelligent preference for one parent over the other. Civil Code, § 138(1). The question proposed by Vallejo would thus have had little if any probative value and would have served only to subject the children to serious emotional disturbance.

Vallejo contends that the trial court improperly rejected his offer to prove that during the marriage Neilma had slapped the children and had stated that she did not want the responsibility of caring for them. Some of the evidence offered had been presented at the 1949 trial of the divorce action; the remainder had not on the advice of Vallejo's attorney. At that trial the court rejected Vallejo's attack on Neilma's character and found that she was 'a fit and proper person to have the joint legal custody, care and physical custody of said minor children.' No appeal was take from the 1949 judgment.

In divorce actions the trial court has continuing jurisdiction to modify the custody provisions of the divorce decree. Civil Code, § 138. 'But this does not mean the parties to such litigation may, after a court has once heard evidence upon the subject of their fitness * * * and ruled upon the question, immediately again invoke the powers of the court to have it inquire into the same or other facts existing at the time of or prior to the former decree. Such holding would lay a foundation for interminable and vexatious litigation. * * * The rule is stated to be that to justify a modification there must be a change of circumstances arising after the original decree is entered, or at least a showing that the facts were unknown to the party urging them at the time of the prior order, and could not with due diligence have been ascertained.' Foster v. Foster, 8 Cal.2d 719, 727, 68 P.2d 719, 722, quoting from Olson v. Olson, 95 Cal.App. 594, 597, 272 P. 1113; accord: Munson v. Munson, 27 Cal.2d 659, 666-667, 166 P.2d 268; Prouty v. Prouty, 16 Cal.2d 190, 193, 105 P.2d 295. In determining whether circumstances have changed, however, the court necessarily considers the facts established in the former proceeding as a basis for comparison. Crater v. Crater, 135 Cal. 633, 634, 67 P. 1049; Simmons v. Simmons, 22 Cal.App. 448, 452, 134 P. 791. In the present case, the trial judge had presided at the former trial and was therefore familiar with the circumstances then existing. The findings of fact and conclusions of law at the former trial were introduced in evidence. The evidence of Neilma's conduct preceding entry of the interlocutory decree was therefore properly rejected as nonresponsive to the issues in the modification proceeding. See Smith v. Smith, 85 Cal.App.2d 428, 433, 193 P.2d 56; Valentine v. Valentine, 47 Cal.App.2d 438, 440 118 P.2d 17; cases collected in Hendricks v. Hendricks, 69 Idaho 341, 206 P.2d 523, 9 A.L.R.2d 623.

Vallejo next contends that the trial court abused its discretion in modifying the divorce decree so that the children could live with him only during parts of Christmas holidays and school vacations and he could visit them only on Sundays 'from breakfast time to bed time.'

The evidence supports the modification. Vallejo himself testified that the children were emotionally disturbed by being shifted from one home to the other on week-ends. Neilma testified that the children were disrespectful to her after visiting Vallejo. Neilma also stated that when she disciplined the children they would say 'I'll tell my father on you.' Vallejo states in his brief that a divided custody arrangement is unworkable and urges this court to award him undivided custody to end the 'pulling and tugging by the parents.' The same reasoning would apply on behalf of Neilma. Some experts believe that divided custody is harmful to the welfare of children, Plant, The Psychiatrist Views Children of Divorced Parents, 10 Law and Contemp. Prob. 807, 816, although others believe that barring exceptional circumstances, children should continue their relations with both parents. Weinman, The Trial Judge Awards Custody, 10 Law and Contemp. Prob. 721, 728. In each case, the trial judge must determine what is in the best interests of the children. The trial court in the present case could reasonably conclude from the evidence that a modification of the custody arrangements was advisable. See Cornwall v. Cornwall, 108 Cal.App.2d 95, 108, 238 P.2d 8.

Vallejo contends that the trial judge was guilty of bias and prejudice, an issue raised for the first time on appeal. Much of his argument is directed at matters not in the record. Thus he alleges that 'the trial judge ignored appellant's witnesses on the first day and from then on * * * he looked away from them and at the opposite wall all during their testimony, except when he occasionally tried to elicit from them something adverse to Vallejo.' Again, he asserts that 'the trial judge, in his chambers, ridiculed all of counsel's arguments as to the relevancy of the evidence to be produced by Vallejo's witnesses and revealed a prejudicial attitude against Vallejo.' No affidavits were filed to support the statements in the brief. Cf. Webber v. Webber, 33 Cal.2d 153, 164, 199 P.2d 934 (affidavits unnecessary when misconduct of judge appears on face of record). Statements of counsel in briefs are not part of the record on appeal. See Ware v. Security-First Nat. Bank, 7 Cal.2d 604, 608, 61 P.2d 936; Lady v. Barrett, 43 Cal.App.2d 685, 687, 111 P.2d 702. The question whether the trial court was biased must therefore be determined from matters appearing in the reporter's transcript.

Vallejo relies on the trial court's refusal to admit in evidence his memorandum opinion in the 1949 trial, allegedly 'directly and unequivocally contrary to his whole attitude in the 1951 proceedings.' The court, however, admitted the findings of fact and conclusions of law in the 1949 action. It acted properly in refusing to admit the memorandum opinion, since the findings superseded it. See Belger v. Sanchez, 137 Cal. 614, 618, 70 P. 738; Williams v. Kinsey, 74 Cal.App.2d 583, 600-601, 169 P.2d 487. Vallejo states that the trial court refused to allow him to ask a witness whether Vallejo had a good influence on the children and declared, when Vallejo nevertheless attempted to ask the question, 'I am running the court and you are going to mind the judge.' Since Neilma had conceded that Vallejo's relation with the children was one of love and devotion, the court's ruling was correct. Its remark was justified by counsel's attitude towards the court. The court also properly stated, 'Let's not have any...