Marriage of Ciganovich, In re

• Decision Date: 18 August 1976
• Citation: 61 Cal.App.3d 289,132 Cal.Rptr. 261
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Kathy S. and Charles B. CIGANOVICH. Kathy S. CIGANOVICH, Respondent, v. Charles B. CIGANOVICH, Appellant. Civ. 15324.

Page 261

132 Cal.Rptr. 261

61 Cal.App.3d 289

In re the MARRIAGE OF Kathy S. and Charles B. CIGANOVICH Kathy S. CIGANOVICH, Respondent, v. Charles B. CIGANOVICH, Appellant.

Civ. 15324.

Court of Appeal, Third District, California.

Aug. 18, 1976.

William C. Schemel, West Sacramento, for appellant.

Ervin F. Vaughan, West Sacramento, for respondent.

FRIEDMAN, Associate Justice.

The parties first brought their domestic troubles before the Yolo County Superior Court in June 1972. Husband and wife leveled charges of harassment and molestation at each other. In September 1973 an interlocutory decree of dissolution was entered. As amended in June 1974, the decree gave custody of the two children (ages 6 and 3) to the mother, provided the father weekend visitation rights on alternate weekends and directed him to pay $100 monthly child support (retroactively commencing February 1973) and $10 monthly spousal support.

In May the mother commenced a series of moves between Yolo County and various places in Nevada. At times she concealed her whereabouts and that of the children from her ex-husband. In May 1974 she took the children to Reno, withdrawing the elder child from school a week before the end of the school term. She stated that she did so to 'get away' from her ex-husband and to 'avoid' him. Her abode in Reno was a motel. She returned to Yolo County in June 1974 and left the children temporarily with their father. On July 1 she took the children back to Nevada, moved from the Reno motel to a trailer court in Sparks, unsuccessfully applied for welfare, then secured temporary work in a Sparks gaming establishment. In November she moved with the two children to the small Nevada community of Fernley. She did not tell the children's father of her moves to Sparks and to Fernley. She stated that she used her former Reno (motel) address as a 'blind' address.

The father testified that after his exwife picked up the children on July 1, 1974, he did not know their whereabouts; that he made attempts to locate the children; that the ex-wife called him at work in August 1974 and threatened that he would never see the children again if he didn't pay child support; that he saw the children for two hours on December 3 that she said he could pick up the children at the Reno (motel) address for the Christmas vacation; that when he arrived there he found she was no longer living there; that he had deposited payments aggregating $500 in a bank trust account in lieu of sending child support money to the ex-wife.

In September 1974 he filed papers seeking modification of the support and custody orders, declaring that the ex-wife had secreted the two children, that support payments had been withheld 'pending location' of the children and declaring that he was able to assume their custody and to provide them a home and stable environment.

In the meantime the ex-wife had gone to a Nevada district attorney and filed a request for child support proceedings under the reciprocal support statutes. That step resulted in the institution of a support proceeding by the Yolo County district attorney. Both the ex-husband's motion for modification of the decree and the district attorney's request for a support order were heard at the same time. By then the exhusband had turned over to the district attorney the $500 previously deposited in a bank plus another $100. He was still more than $800 in arrears. The court denied modification of the decree and continued the ex-husband's visitation rights 'as presently ordered.' The ex-husband appeals.

The events are typical of a frequent, unpleasant and perplexing syndrome of family dissolution in a mobile society. After awarding custody of children to the mother, a judicial decree professes protection of the father's paternal interests by a visitation provision which is reduced to empty pomposity when the mother moves the children to another region. The mother's move may be motivated by her own legitimate needs or by a vengeful desire to demolish the paternal relationship. Regardless of the mother's good or ill motives the father's inability to spend time and money on travel may effectively damage or destroy his legitimate paternal aspirations.

Mired in this predicament, a father expectably resorts to the most available weapon--he withholds support payments. California and many other states have adopted the Uniform Reciprocal Enforcement of Support Act. (Code Civ.Proc., § 1650, et seq.) Objective of the act is to aid stationary mothers in exacting child support from peregrinating fathers. The peregrinating mother reverses that objective. The reciprocal act offers her the 'long arm' of two district attorneys and of the taxpayers of two states to deprive her ex-husband of his financial weapon. The reciprocal law assures the continued flow of child support. It also facilitates the mother's destruction or impairment of the father's visitation right and paternal interests.

As a general rule a parent having child custody is entitled to change residence unless the move is detrimental to the child. (Civ.Code, § 213; Forslund v. Forslund, 225 Cal.App.2d 476, 494, 37 Cal.Rptr. 489; Evans v. Evans, 185 Cal.App.2d 566, 571, 8 Cal.Rptr. 412.) That the child's removal from the state practically deprives the father of his visitation rights is 'generally' insufficient to justify restraint on the mother's free movement. (Walker v. Superior Court, 246 Cal.App.2d 749, 754, 55 Cal.Rptr. 114; Stack v. Stack, 189 Cal.App.2d 357, 367, 11 Cal.Rptr. 177.)

The general rule does not govern when the mother acts with an intent to frustrate or destroy the father's visitation right. (Walker v. Superior Court, supra, 246 Cal.App.2d at p. 755, 55 Cal.Rptr. 114; Rosin v. Superior Court, 181 Cal.App.2d 486, 500, 5 Cal.Rptr. 421.) Some of the decisions hold that the mother's attempt to destroy the visitation right is an interference with the proceedings and a contempt of court. (Rosin v. Superior Court, supra, 181 Cal.App.2d at pp. 499--500, 5 Cal.rptr. 421.) Other courts have terminated or decreased spousal support as a means of pressuring a recalcitrant mother into compliance with paternal visitation rights. (Clarke v. Clarke, 4 Cal.App.3d 583, 589 84 Cal.Rptr. 393; Williams v. Williams, 103 Cal.App.2d 276, 278, 229 P.2d 830.) One court made the custodial parent put up a bond to assure compliance with a visitation order. (Walker v. Superior Court, supra, 246 Cal.App.2d 749, 55 Cal.Rptr. 114.) Most significant for our present purpose is the court's power to transfer custody or otherwise modify...