Hamilton v. Hamilton
| Decision Date | 10 May 1951 |
| Citation | 104 Cal.App.2d 111,231 P.2d 69 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HAMILTON v. HAMILTON. Civ. 14634. |
Vincent W. Hallinan, San Francisco, Richard M. Siegel, San Francisco, of counsel, for appellant.
Young, Rabinowitz & Chouteau, San Francisco, for respondent.
This is an appeal from an order modifying an interlocutory decree of divorce by changing the custody of a minor daughter, Michelle, 9 years old, from the mother to the father.
Appellant mother was awarded an interlocutory from respondent father in 1943, which decree approved and made a part of the decree the property settlement previously reached between the parties. The court made no finding as to the fitness of either parent to have the custody of the child, then 2 1/2 years old, and did not, in the decree proper, make an award of the custody of the child. The property settlement agreement, however, gave appellant mother legal and physical custody of the child and required respondent father to pay $75 for the support of the child and also required him to pay $200 per month to appellant for 48 months or until her remarriage. In 1946 on motion of appellant the amount to be paid by respondent for the support of the child was raised to $100 per month.
In September 1949 respondent father filed an affidavit alleging that in December 1948 appellant mother had delivered said minor child to Dr. Margaret Chung, that appellant was not a fit and proper person to have custody of said child, that she threatened to take said child out of the State of California and praying that the custody of the child be awarded to him. An order to show cause was issued and pending the hearing thereof appellant was restrained from taking the child outside of the State of California and both parties were restrained from taking the child from the physical possession of Dr. Chung. Following a hearing which occupied a portion of October 26th, October 27th and November 28th, the court on January 7, 1950, made the order appealed from, awarding the custody of said minor child to respondent, in which order the court found 'that defendant (respondent) is a fit and proper person to have the custody of said child, Michelle Hamilton, and that plaintiff (appellant) is neither a fit or proper person at the present time to have the custody of said child and further that the said plaintiff is unable to make any adequate provision therefor; that it is to the best interest and well-being of said child that custody of said child be awarded to the defendant.'
Appellant bases her appeal upon two contentions: 1. The finding of fact that she is an unfit mother is unsupported by the evidence. 2. The order depriving her of custody of her minor child is an abuse of discretion on the part of the trial court.
Before discussing these contentions of appellant we shall summarize briefly the evidence as disclosed by the record, bearing in mind the familiar rule governing appellate tribunals that all of the evidence favorable to the respondent must ordinarily be accepted as true, and that all conflicts must be resolved in favor of the respondent. As hereinbefore stated the minor child was in the custody of appellant after the entry of the interlocutory decree in 1943. During most of the time the child was boarded out. In the early part of 1948 the child was brought to San Francisco to live with appellant in a small apartment on Post Street. In December 1948, appellant told Dr. Margaret Chung, a well-known American born physician and surgeon, that an investigator for the juvenile authorities had told her that she would either have to find a home for the child or the child would become a ward of the Juvenile Court. Dr. Chung, who was the godmother of Michelle, and was the surgeon who had delivered her at birth, and who had seen her frequently from the time of her birth, told appellant she would be happy to take care of the child without any cost to appellant and for appellant to let the child come and stay with her. Appellant agreed to this and on December 25, 1948, Dr. Chung went to appellant's apartment and got Michelle. The evidence showed that Michelle had had a pancreatic deficiency from birth which required constant medical care, medication and a special diet. When Dr. Chung received the child from appellant in December 1948, Michelle, then about 8 years old, weighed 32 pounds and was in the first grade. She was pallid, nervous and irritable. While living with Dr. Chung, Michelle was given a special diet and tutored in her school work so that at the time of the hearing, some 10 months after coming to live with the Doctor, she weighed 50 pounds and was in the fourth grade. In September 1949, appellant planned to remove the child from California and take her to Florida and so informed Michelle and immediately the child began to lose weight and cry frequently.
Appellant testified that she was living in one room in a rooming house and eating her meals outside; that she was not employed at the time that she testified (November 28th) but that she had worked a week or a week and a half as a cigar and cigarette clerk some six weeks previously. She testified to no other employment. She stated that she planned to take Michelle to Florida and to live with her father there; that her father was a widower who was an officer in the Miami Police Department; that he lived alone in a two room apartment but would get a bigger place as soon as she and Michelle arrived there; that she expected to obtain employment when she got to Miami. Respondent testified that appellant's father was an elderly man, in poor health and had a heart condition.
Respondent is an airplane pilot who is in California about one-half of the time. He is a bachelor earning about $1000 per month and testified that if he were awarded the custody of Michelle he intended to have her continue to live with Dr. Chung. Additional facts will be hereinafter set forth.
Notwithstanding the earnest and able argument of counsel for appellant we are convinced that the findings of the court find ample support in the record and that the court did not abuse its discretion in making its order changing the custody of the child from the mother to the father.
The authority of the court to change or modify its decree in divorce cases, so far as the custody and maintenance of the minor children are concerned, is found in section 138 of the Civil Code, wherein it is provided: 'In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.'
Appellant concedes, as indeed she must, that the trial court has a very broad discretion in determining the custody and control of minor children...
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