Harris v. Harris

• Decision Date: 28 November 1960
• Citation: 9 Cal.Rptr. 300,186 Cal.App.2d 788
• Court: California Court of Appeals Court of Appeals
• Parties: Helen A. HARRIS, Plaintiff and Appellant, v. E. Kenneth HARRIS, Defendant and Respondent. Civ. 24670.

Page 300

9 Cal.Rptr. 300

186 Cal.App.2d 788

Helen A. HARRIS, Plaintiff and Appellant, v. E. Kenneth HARRIS, Defendant and Respondent.

Civ. 24670.

District Court of Appeal, Second District, Division 1, California.

Nov. 28, 1960.

Daniel G. Marshall, Los Angeles, for appellant.

Paul Caruso, Beverly Hills, for respondent.

LILLIE, Justice.

Appellant sued for divorce in Marin County in 1956; subsequently the parties executed a property settlement agreement providing in part that they shall have joint legal custody of the five minor children, with their physical care in the mother and right of reasonable visitation in the father, and that he shall pay to her for their support $120 each, or a total of $600 per month; and the foregoing was incorporated in the interlocutory decree of December 13, 1956. Thereafter in April, 1957, and under court order, appellant moved the children to Los Angeles. A final decree of divorce was entered in December, 1958. On May 29, 1959, respondent filed an order to show cause for modification of the interlocutory decree seeking physical custody of the minors; for a change of circumstances he alleged that appellant did not apply the $600 per month to the care and support of the children, that she was taken into custody by juvenile authorities because of unsanitary conditions under which the minors were kept, that the health and welfare of the children are in jeopardy, and that the children do not have adequate clothing and food. After a five-day hearing during which extensive testimony was taken, the lower court entered an order changing custody to respondent father subject to appellant's reasonable visitation. She appeals from the order.

Recognizing general rules relating to modification of custody orders and that each case must be decided on its own merits, appellant claims an abuse of the lower court's discretion in that the change of circumstances was not sufficient to deprive five small children of the care of their mother or to make their transfer to the custody of their father essential or expedient for their welfare and best interests. She also claims error in the admission of certain evidence which, she argues, was outside the issues, and in the lower court's refusal to appoint an investigator under Section 263, Code of Civil Procedure.

Inasmuch as the original order was based upon an agreement of the parties, no evidence was offered at the divorce hearing relative to custody and no finding was made concerning the fitness of the respective parties. In granting modification, although finding respondent to be a fit and proper person, the lower court made none concerning the unfitness of appellant, basing the order on a series of findings relative to conditions directly adversly affecting the children and existing since their removal to Los Angeles in 1957 (Findings of Fact, PP. 1-9), and on a finding that '(F)or the best interest and welfare of the children, custody should be with defendant.' (Findings of Fact. P. 9). No showing or finding of unfitness was necessary to enable the court to make such an award. Holsinger v. Holsinger, 44 Cal.2d 132, 279 P.2d 961; Davis v. Davis, 41 Cal.2d 563, 261 P.2d 729; Munson v. Munson, 27 Cal.2d 659, 166 P.2d 268.

Matters of custody and care of a minor child under Section 138, Civil Code, are addressed to the sound discretion of the trial court. Goto v. Goto, 52 Cal.2d 118, 338 P.2d 450; Holsinger v. Holsinger, 44 Cal.2d 132, 279 P.2d 961; Gantner v. Gantner, 39 Cal.2d 272, 246 P.2d 923; Clarke v. Clarke, 35 Cal.2d 259, 217 P.2d 401; Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295. This discretion is broad, to be exercised with a view toward the highest and best interests of the minor (Gantner v. Gantner, 39 Cal.2d 272, 246 P.2d 923; Davis v. Davis, 41 Cal.2d 563, 261 P.2d 729), and unless a clear case of abuse is made to appear a reviewing court will not reject the lower court's determination and substitute its own opinion therefor.

Section 138, provides in part that the court shall be guided by the following considerations: '(1) * * * what appears to be for the best interests of the child * * * (2) As between parents adversely claiming the custody, neither parent is entitled to it as a right; but other things being equal, if the child is of tender years, (custody) should be given to the mother; if (the child) is of an age to require education and preparation for labor or business, then (custody should be given) to the father.' In the application of this statutory provision the court has a wide discretion and in determining whether other things are equal the primary consideration is what will promote the best interests of the child.' Goto v. Goto, 52 Cal.2d 118, 123, 338 P.2d 450, 453, quoting from Fine v. Denny, 111 Cal.App.2d 402, 403, 244 P.2d 983.

Appellant's contention that the evidence lacks a showing of a change of circumstances warranting modification is entirely without merit, for the record is replete with evidence to the contrary showing not only that a substantial change in living conditions took place since the children came to Los Angeles, but that it was a drastic change actually endangering their health and welfare. Moreover, under the present factual showing we doubt the strict applicability of the rule requiring a showing of change in conditions as set forth in Holsinger v. Holsinger, 44 Cal.2d 132, 279 P.2d 961 and Davis v. Davis, 41 Cal.2d 563, 261 P.2d 729. Even were the evidence insufficient to support the alleged change, we would be inclined to consider this situation an exception to the so-called 'changed circumstance' rule, warranting adherence to the view taken in Goto v. Goto, 52 Cal.2d 118, 123, 338 P.2d 450, that it is not an 'iron clad' rule but subject to exception where despite the fact no change of circumstances is apparent, the welfare of the child might require the previous order of custody be changed. Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719. Following the trend, first suggested in the Foster case, supra, 8 Cal.2d 719, 68 P.2d 723, courts have been liberal in the application of the 'change of circumstance' rule; it has not been applied where it can be assumed both parents were found fit (Kelly v. Kelly, 75 Cal.App.2d 408, 171 P.2d 95); nor where the trial court has modified the custody decree. Frizzell v. Frizzell, 158 Cal.App.2d 652, 323 P.2d 188. Said the court in the Frizzell case, supra, at page 655, 323 P.2d at page 191: 'That rule only applies where the trial court has refused to modify a decree and it is contended an abuse of discretion occurred. To show such abuse there must be a showing of changed circumstances. Kelly v. Kelly, 75 Cal.App.2d 408, 171 Pac.2d 95; Dotsch v. Grimes, 75 Cal.App.2d 418, 171 Pac.2d 506.'

The burden of proving an abuse of the lower court's discretion falls on appellant (Horsley v. Horsley, 77 Cal.App.2d 442, 175 P.2d 580) and in the absence of such a showing an appellate court will not disturb the trial court's determination; its discretion in determining the best interests of a minor will be upheld unless the record is barren of substantial evidence to support it. Noon v. Noon, 84 Cal.App.2d 374, 191 P.2d 35; Ducharme v. Ducharme, 152 Cal.App.2d 189, 313 P.2d 33; Horsley v. Horsley, 77 Cal.App.2d 442, 175 P.2d 580. Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the order of the court below (Ducharme v. Ducharme, 152 Cal.App.2d 189, 313 P.2d 33; Frizzell v. Frizzell, 158 Cal.App.2d 652, 323 P.2d 188; Holsinger v. Holsinger, 44 Cal.2d 132, 279 P.2d 961), we conclude appellant has failed in her burden; and the record before us discloses no abuse of judicial discretion in the trial court's determination that the best interests and welfare of the children will best be served by permitting their father to care for them.

In support of appellant's argument that the children need the care of their mother, she submits in detail certain partisan evidence interspersed with arguments in justification of her conduct, but in doing so she neglects the time-honored rule that the weight of evidence, credibility of the witnesses and the resolution of factual conflicts are matters primarily for the trial court. Although the matter was bitterly contested, whether bias of certain witnesses existed and what if any effect it had on their credibility and the weight to be given the evidence were matters for the determination of the lower court. The trial, five days long, produced approximately 600 pages of testimony, some 26 exhibits, 24 witnesses, and the five children. The judge heard the witnesses speak and observed their appearance, conduct and manner of testifying; saw the children ranging from three to nine years; and listened to a sorrowful account of maternal indifference to, irresponsibility for and neglect of five small children.

The parties were married in 1949; they have three boys and two girls--Kathy (1950), Charles (1952), Christopher (1953), Courtney (1954) and Collin (1956). The property settlement agreement gave appellant $50,000 as her share of the community property, an interest in joint tenancy realty, household furniture, and $600 per month for child support (which respondent has paid regularly). In April, 1957, appellant moved the children to Southern California. Respondent is a doctor of medicine, practicing in San Francisco and Beverly Hills.

The evidence of appellant's conduct in relation to the children is extensive, cumulative and somewhat burdensome as to preclude factual review in any detail.

The first finding, that appellant refused to permit the children to acknowledge respondent as their father, is supported by lengthy evidence of a deliberate attempt to reduce respondent's parental status with his children to that of a stranger, and to eliminate him from their lives except as someone who 'comes around and makes trouble.' The children call respondent 'Kenneth'; 'time and time again' they...