Mathewson v. Mathewson

• Decision Date: 07 September 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Frank E. MATHEWSON, Plaintiff, Cross-Defendant and Respondent, v. Jean L. MATHEWSON, Defendant, Cross-Complainant and Appellant. Civ. 6778.

Page 466

24 Cal.Rptr. 466

207 Cal.App.2d 532

Frank E. MATHEWSON, Plaintiff, Cross-Defendant and Respondent, v. Jean L. MATHEWSON, Defendant, Cross-Complainant and Appellant.

Civ. 6778.

District Court of Appeal, Fourth District, California.

Sept. 7, 1962.

Hearing Denied Oct. 31, 1962.

Charles T. Bumer, Jr., San Diego, for defendant and appellant.

George Ritner, San Diego, for plaintiff and respondent.

COUGHLIN, Justice.

The sole issue on this appeal is whether the evidence is sufficient to sustain an order modifying child custody provisions of an interlocutory divorce decree. The plaintiff and the defendant were husband and wife; were parties to a divorce action tried on February 1, 1961; and obtained an interlocutory decree therein declaring that each of them was entitled to a divorce and awarding custody of their fifteen month old son to the defendant, his mother.

At the time of the foregoing trial the defendant-wife was pregnant by a man other than her husband, the pregnancy occurring after separation from the latter, but she concealed this fact from her attorney from her husband, and from the court. Following entry of the interlocutory decree she and her son lived in a one-bedroom apartment. The father of her illegitimate child moved in and lived with them. He was referred to as 'Daddy' when the defendant spoke of him to her son.

Upon learning of his wife's pregnancy, the plaintiff moved the court to modify the custody provisions of the interlocutory decree and place the boy with him.

Subsequently, upon advice of counsel, the father of the illegitimate child moved out of the apartment.

At the hearing of the motion for modification, the plaintiff contended that his wife had not kept the child clean; complained that at times he had not been permitted to exercise his visitation rights; testified that on the occasions when he took the boy with him, the latter was happy to leave his mother and unhappy to return to her, going into a fit of crying when brought back; testified further concerning his lack of knowledge of his wife's pregnancy until shortly before he commenced the instant proceeding; and introduced evidence which supports a conclusion that the child would be well cared for in his home, which he keeps with his mother and father. The defendant contended that her son was well cared for by her; denied the charges of uncleanliness; admitted her indiscretion with the father of her illegitimate child; said that in not disclosing her pregnancy at the trial of the divorce action she supposed she was deceiving the court, but did not tell anyone because she 'was worried about losing Bobby over it'; claimed that she and the father of her illegitimate child intended to marry upon entry of a final decree; testified that he lived with her for a time after entry of the interlocutory decree, that he supported her, and that as far as her feelings were concerned, he would then be living with her if her attorney had not advised the contrary; and introduced evidence corroborating her claim that the boy was given proper and loving care. The father of the illegitimate child testified that he and the defendant went to Mexico in April of 1961 and 'got a Mexican marriage.'

The trial court modified the interlocutory decree; awarded custody of the child to his father; and entered an order accordingly in which it was expressly found that the father 'is a fit person to have the custody of the minor child of the parties, * * * and that it is to the best interests and welfare of said child that he be in the custody of' his father. The mother appeals from this order, contending that the evidence does not support the same; that it is contrary to the provisions of the code which require that 'other things being equal, if the child is of tender years, custody should be given to the mother' (Civ.Code, sec. 138, subd. (2)); that her alleged immoral conduct was not harmful to the child and is not a legal ground for taking custody from her; that as disclosed in an oral opinion delivered at the close of the hearing, the trial judge did not base his decision upon this ground, but made the change in custody because of the financial aspects of the case; that the latter circumstance is not a legal reason for making a custodial placement; and that the order changing custody constituted an abuse of discretion.

'The universal practice in this state is not to require findings on an order made after motion.' (Waymire v. California Trona Co., 176 Cal. 395, 399-600, 168 P. 563, 565; Parker v. Parker, 107 Cal.App.2d 215, 217, 236 P.2d 828.)

On the other hand, implicit in every such order is a finding of all those facts supported by the evidence which are necessary to sustain it. (Griffith Co. v. San Diego Col. for Women, 45 Cal.2d 501, 507, 289 P.2d 476, 47 A.L.R.2d 1349; Estate of Machado, 186 Cal. 246, 251, 199 P. 505; People v. Tannehill, 193 Cal.App.2d 701, 706, 14 Cal.Rptr. 615.) In the case at bar the trial court, as a part of its order, expressly found that it was for the best interests of the minor that he be placed in the custody of his father and, "in the absence of indications to the contrary, a general finding includes a finding of all the special facts necessary to sustain it." (Albonico v. Madera Irr. Dist., 53 Cal.2d 735, 741, 3 Cal.Rptr. 343, 346, 350 P.2d 95, 97; Richter v. Walker, 36 Cal.2d 634, 640, 226 P.2d 593.) The oral opinion of a trial judge may not be substituted for findings of fact by the court. (Martin Sch. of Aviation, v. Bank of America, 48 Cal.2d 689, 695, 312 P.2d 251; People v. Hills, 30 Cal.2d 694, 702, 185 P.2d 11.) However, such an opinion may be used to determine the process by which the trial judge reached his decision (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750, 47 P.2d 273; Winegar v. Gray, 204 A.C.A. 332, 341, 22 Cal.Rptr. 391; 1 st Olympic Corp. v. Hawryluk, 185 Cal.App.2d 832, 838, 8 Cal.Rptr. 728), and if it appears therefrom that his decision was based on an erroneous concept of the law the error will be corrected on appeal.

At the conclusion of the hearing in the instant proceeding the trial judge expressed his opinion respecting the evidence adduced, and its applicability to the issue at hand. The defendant has selected parts of this opinion and used them to support her contention that the court based its conclusion solely on the financial problems which would be presented by a placement with the mother. When considered as a whole it is apparent that the court's determination was not made on such a basis. To the contrary, it appears that the judge was governed by applicable rules and considered the total evidence in reaching a decision.

The defendant claims that the order in question is not supported by the evidence and is against law because her son is of tender years and 'other things being equal', by mandate of Civil Code Section 138, subdivision (2), custody should have been awarded to her.

'This section does not give the mother the absolute right to the custody of a child of tender years. The qualifying clause, 'but other things being equal', still leaves a large measure of discretion with the trial court. If the court finds that other things are not equal, as it evidently did here, and there is any substantial evidence to support such a finding our inquiry is at an end.' (Phillips v. Phillips, 48 Cal.2d 404, 407, 119 P.2d 736, 738; Reynolds v. Reynolds, 149 Cal.App.2d 409, 412, 308 P.2d 921; Hamilton v. Hamilton, 104 Cal.App.2d 111, 117, 231 P.2d 69.)

'In determining whether other things are equal within the meaning of the above Code section, the trial court is necessarily allowed a wide latitude in the exercise of its discretion. In the first instance it is for the trial court to determine, after considering all the evidence, how the best interest of the child will be subserved. The question is to be determined solely from the standpoint of the child, and the feelings and desires of the contesting parties are not to be considered, except in so far as they affect the best interests of the child.' Taber v. Taber, 209 Cal. 755, 756-757, 290 P. 36, 37; Munson v. Munson, 27 Cal.2d 659, 666, 166 P.2d 268.)

In deciding this issue, the court should take into consideration, among other things, 'the financial condition of the parents, their interests, their morals, and their dispositions.' (Foster v. Foster, 8 Cal.2d 719, 732, 68 P.2d 719, 725.)

In his oral opinion the trial judge expressly referred to the provisions of the code which declare that 'other things being equal' the dustody of a child of tender years should be awarded to the mother; assumed that the trial court which granted the interlocutory decree, the awarded custody of the minor to the mother; followed the dictates of this code section; expressed his belief that if the judge of that court had known that the defendant was pregnant as a result of adulterous conduct he would not have placed the child in her custody 'because other things weren't equal'; directed attention to the fact that there was no evidence that the plaintiff had committed any 'matrimonial offenses'; referred to the father as 'less an offender than the mother'; noted that the defendant had encouraged her son to call her prospective husband 'Daddy' and that although the latter might treat the boy well, nevertheless he would be a stepfather; and, in addition, stated that: 'This case turns * * * on finances a great deal. Practically every one of ...