Milne v. Goldstein

• Citation: 202 Cal.App.2d 582,20 Cal.Rptr. 903
• Court: California Court of Appeals
• Decision Date: 19 April 1962
• Parties: Joel Michael MILNE, Plaintiff and Respondent, v. Geraldine Milne GOLDSTEIN, Defendant and Appellant. Civ. 25629.

Page 903

20 Cal.Rptr. 903

202 Cal.App.2d 582

Joel Michael MILNE, Plaintiff and Respondent, v. Geraldine Milne GOLDSTEIN, Defendant and Appellant.

Civ. 25629.

District Court of Appeal, Second District, Division 3, California.

April 19, 1962.

As Modified April 23, 1962.

Hearing Denied June 13, 1962.

Hahn, Ross & Saunders, Los Angeles, for appellant.

Bernard B. Cohen, Beverly Hills, for respondent.

SHINN, Presiding Justice.

Plaintiff and defendant are the divorced parents of two young girls who reside with their mother in Burbank. Plaintiff, who is a resident of the City of Johannesburg, Union of South Africa, instituted the present action seeking a judgment that the daughters visit him in Johannesburg for six weeks of each summer school vacation. Defendant answered and filed a cross-complaint by which she sought judgment that the daughters should remain with her and that plaintiff be enjoined from removing them from the County of Los Angeles. Pursuant to the requests of the parties, the judgment affirmed and declared valid a decree of divorce granted to defendant by the courts of Nevada September 9, 1954, by which decree defendant was awarded custody of the daughters.

The present judgment grants plaintiff the right to have the children visit with him for six weeks during each summer vacation, orders defendant to make necessary arrangements for the children to travel by plane to New York when plaintiff has completed arrangements for their transportation from Burbank to Johannesburg and orders plaintiff to have them returned to the home in Burbank at the end of the visiting periods. It also orders plaintiff to pay certain sums for the support of the children and certain legal expenses. Defendant appeals only from those provisions of the judgment which require that the children visit with plaintiff in Johannesburg.

Plaintiff is 38 years of age and has always been a citizen of Johannesburg. The parties were married in New York July 1, 1947 and soon thereafter took up residence in Johannesburg. The daughters are Linda Cheryl Milne, born July 28, 1948, and Candice Colleen Milne, born October 18, 1950. In 1953, defendant and the children came to California, where they have since resided. In 1954, defendant instituted an action in Los Angeles County seeking support for herself and the children. Plaintiff appeared in the action, which was dismissed. In September 1954, defendant was awarded a divorce and custody of the daughters by a Nevada court. On November 1, 1954, in Johannesburg, plaintiff was awarded a decree of divorce and custody of the daughters. December 8, 1959, defendant married Al Goldstein, and the family consisting of defendant and her husband, her two daughters and a daughter of her husband's by a former marriage, has continued to live in Burbank.

In 1956, 1957, 1958 and 1960, plaintiff visited with the children in Burbank for periods of about six weeks. June 14, 1960, after unsuccessful attempts to reach an agreement with defendant for the children to visit him in Johannesburg, plaintiff instituted the present action.

June 14, 1960, plaintiff obtained an order that defendant show cause why the children should not be allowed to visit him in South Africa for six weeks of every summer vacation. June 22, 1960, defendant obtained an order that plaintiff show cause why he should not be restrained from removing the children from Los Angeles County and from taking them to South Africa. July 7 and 8, 1960, a hearing was had upon the orders to show cause before Court Commissioner Raymond R. Roberts, sitting as judge pro tempore. In a two day hearing, testimony was given by plaintiff, defendant and defendant's husband. In connection with this hearing plaintiff proposed that he would petition the Supreme Court in Johannesburg for a modification of the decree that had been awarded to him so as to provide that the custody of the children be awarded to defendant and that they be permitted to visit plaintiff in Johannesburg for periods of six weeks during summer vacations. Plaintiff proposed that he would deposit with an escrow holder in Johannesburg 50,000 shares of stock of the Harmony Gold Mining Company, valued at $175,000, the same to be delivered to defendant if the daughters visited with plaintiff in Johannesburg and were not returned at the end of any six weeks period, and to be returned to plaintiff if the daughters did not so visit with him. Plaintiff also prepared the draft of a petition to the Supreme Court in Johannesburg for modification of the decree, as aforesaid, and which provided that he would not make any application to the court to award him custody of the children if he failed in his agreement to return them to California at the end of each visiting period. Plaintiff proposed and later did prepare an agreement under which the children would visit with him each summer; plaintiff would make all arrangements and pay the expenses of their transportation and defendant would do whatever was necessary for their trips to Johannesburg; plaintiff would deposit the 50,000 shares of stock with a trust company as security for the return of the children and would procure the modification of his divorce decree. In February 1961, in a further hearing, Judge Roberts approved the agreement and the form of all other documents.

By order of March 10, entered nunc pro tunc as of February 24, Judge Roberts granted the application of plaintiff and required the parties to execute and comply with the terms of the agreement. Plaintiff executed the agreement, but defendant refused to execute it. The judgment in the present action ordered the parties to execute the agreement and to comply with the same. After the judgment was entered and defendant's motion for new trial had been denied, plaintiff's petition was presented to the Supreme Court of South Africa (Transvaal Provisional Division) and it was granted June 20, 1961. Plaintiff also deposited with a trust company in Johannesburg the 50,000 shares of stock under appropriate escrow instructions. June 7, 1961, plaintiff filed with the American Consul General at Johannesburg a written consent that the daughters leave South Africa at the end of each six weeks visiting period and he arranged with the American Airlines for the outward and return transportation of the children. Plaintiff fully complied with the terms of the judgment. An application of defendant for stay of execution of the judgment was made to this court and was granted. (Milne v. Goldstein, 194 A.C.A. 579, 15 Cal.Rptr. 243.)

Although plaintiff testified at the hearing of the orders to show cause, he returned to Johannesburg shortly thereafter. He was not present at the trial, in which his testimony previously given was received. The trial lasted through eight days. The record on appeal consists of the clerk's transcript of 296 pages and a reporter's transcript of 807 pages, with numerous exhibits. The briefs on the appeal comprise 297 pages.

The ultimate issue that was tried and determined was whether it was in the best interests and for the welfare of the children that they be permitted to visit with their father for six weeks of each summer vacation. The evidence was directed to the questions whether it would be safe for them to visit in Johannesburg, and whether a doubt existed that plaintiff would cause them to be returned to their home in California. In reply to a criticism that one of the findings of probative facts was unsupported, plaintiff correctly says: 'At bar, the paramount ultimate issue is whether the interests and welfare of the children will best be served by permitting them to visit their father in South Africa. In the finding above the court found favorably to plaintiff on that paramount issue, which in itself disposes of the case and supports the judgment. It follows that the finding under attack which relates only to probative facts is unnecessary, and defendant's contention that the probative finding is contrary to the evidence is unavailing.' Notwithstanding counsel's admitted understanding of the functions of findings, we have in the record 23 findings of evidentiary facts covering 12 pages and 13 conclusions of law covering 6 pages of the clerk's transcript. The conclusions of law, as well as the judgment, make detailed provision for the transportation of the children to and from Johannesburg and prescribe the duties of the respective parties respecting the same.

The contentions on the appeal are that the judgment constitutes an abuse of discretion for the reason that the evidence established that the daughters would not be returned to California once they were in Johannesburg, and that it would be unsafe for them to visit their father. It is asserted that the trial court committed error in refusing to admit into evidence 'current newspaper clippings, newspaper photographs, a radio broadcast teletype for the purpose of taking judicial notice of current history.' It is urged that the trial judge prejudged the case and was biased against defendant, that the court committed error in the exclusion of other evidence offered by defendant, and it is further urged that certain of the findings are irreconcilably inconsistent.

In support of the first point, it is argued that if the children went to Johannesburg plaintiff would petition the court to again modify its decree so as to award him the exclusive custody of the children. This is merely an assertion of the fear of defendant and her counsel, for which the record furnishes no justification. Although plaintiff sought and was awarded the custody of the daughters in the action he instituted in 1954, in the present action he acquiesced in the affirmance and establishment of defendant's Nevada decree as a judgment of the California court. His petition to the Supreme Court of South Africa contained a full disclosure of the proceedings in the present action, from which it would appear that he prevailed solely upon the...