Miller v. Hedrick

• Decision Date: 06 March 1958
• Citation: 322 P.2d 231,158 Cal.App.2d 281
• Court: California Court of Appeals
• Parties: Dorsey Marlin MILLER, Plaintiff and Appellant, v. Mary E. M. HEDRICK, Defendant and Respondent. Civ. 5613.

Page 231

322 P.2d 231

158 Cal.App.2d 281

Dorsey Marlin MILLER, Plaintiff and Appellant, v.Mary E. M. HEDRICK, Defendant and Respondent.

Civ. 5613.

District Court of Appeal, Fourth District, California.

March 6, 1958.

Rehearing Denied April 1, 1958.

Hearing Denied April 30, 1958.

J. B. Tietz, Los Angeles, for appellant.

Dorris, Fleharty & Underhill, by C. Fleharty, Jr., Bakersfield, for respondent.

GRIFFIN, Justice.

Plaintiff alleged in a declaratory relief action filed September 4, 1956, that he married defendant in March, 1951; that she secured a divorce from him in Nevada in October, 1953, and he was to pay $15 per week for the support of their minor child and have the right to visit and be visited by the child at all reasonable times and places; that she lived in Kern County for more than one year last past with their son Stephen, now aged 5 1/2 years; and that she is presently married to one Joseph Hedrick.Plaintiff also alleged that he had been a resident of California for more than one year and of Kern County for more than '30 days'.He does not question the validity of the Nevada divorce decree but avers that in the event the court finds it is valid it should be so declared and enforced; that the court determine a reasonable amount for the child's support, not to exceed $10 per week, and set forth, in particular, the father's visitation rights; and that a restraining order issue directing defendant to keep the child in California; that if the Nevada decree be declared inval- idhe should be granted a decree of divorce from defendant on the grounds of bigamy and extreme cruelty.He then alleges in some detail his religious belief, being that followed by Jehovah's Witnesses; that defendant follows the Catholic faith, though she violated it in obtaining a divorce from him; that she insists that the child, while visiting his father, be not exposed to plaintiff's religion and not allowed to sell and dispose of its literature; that on account of this training, when absent from her, the mother informed plaintiffhe could not continue to have his son overnight or week-ends, as customarily granted, unless plaintiff promised to give up his religion; that through their attorneys they agreed plaintiff could come to her home and visit with the son and that defendant told him about April 15, 1956, if he went to court in California pertaining to the custody of the child she would take him to Texas.No demurrer or answer to the complaint has, as yet, been interposed.

An order was issued ordering defendant to appear and show cause why, during the pendency of the action, the child's custody should not be awarded to defendant'but with specific visitation rights to plaintiff'.The husband's questionnaire on the hearing recited that he desired custody in defendant reserving to him a definite right to visit the child at specific hours, and to take him home overnight at least one week-end each month and for one week in the summer.The wife's affidavit shows that she obtained a final decree of divorce in Nevada on October 3, 1953; that by power of attorney, her husband authorized a Nevada attorney to appear for him; that such power of attorney authorized him to consent to a decree awarding the care, custody and control of the minor to the mother, and that he agreed to pay $15 per week for the child's support; that a decree was so ordered; that plaintiff begrudgingly paid these payments when due; that the needs of the child are now greater and she seeks $100 per month for his support; that she has always permitted plaintiff to visit his son at all reasonable times, has frequently permitted him to visit with plaintiff over week-ends, and has never requested plaintiff to give up his religion; that since she recently found he was taking the child to religious meetings and requiring him to sell their publication from door to door she remonstrated; that she is raising her boy as a Catholic and believes, under her custodial rights, it would be antagonistic to have the child taught a belief contrary to those he is regularly taught, and that the child complained about spending his week-ends with his father under such conditions; that she curtailed his week-end visitations because plaintiff told her he did not want his child to grow up believing he should be taught to salute the flag of his country, that he owed it any allegiance or that he should defend it by going to war.For the best interests of the child she asked that if such teachings be not discontinued plaintiff's visitation rights should be abolished.

The trial court, after hearing the matter on the order to show cause, signed a written memorandum or order reciting that the parties did not there question the validity of the Nevada decree; that the custody of the child should be awarded to the mother pendente lite; that the father pay $15 per week for his support; and awarded plaintiff reasonable visitations which would include a two-hour visit each Tuesday evening and a similar visit on any other evening agreed upon, and that both ...