Reynolds v. Reynolds

• Decision Date: 25 March 1957
• Citation: 308 P.2d 921,149 Cal.App.2d 409
• Court: California Court of Appeals Court of Appeals
• Parties: Frank Gideon REYNOLDS, Plaintiff, Cross-Defendant and Respondent, v. Marguerite Evelyn REYNOLDS, Defendant, Cross-Complainant and Appellant. Civ. 9020.

Page 921

308 P.2d 921

149 Cal.App.2d 409

Frank Gideon REYNOLDS, Plaintiff, Cross-Defendant and Respondent, v. Marguerite Evelyn REYNOLDS, Defendant, Cross-Complainant and Appellant.

Civ. 9020.

District Court of Appeal, Third District, California.

March 25, 1957.

Hearing Denied May 22, 1957.

McAllister & Johnson, Sacramento, for appellant.

Ira B. Langdon, Stockton, and Miller, Kroloff, Brown & Belcher, Stockton, for respondent.

SCHOTTKY, Justice.

This is an appeal from a judgment in which the plaintiff and cross-defendant, Frank Reynolds, was granted a divorce from the defendant and cross-complainant, Marguerite Reynolds, and was awarded custody and control of the parties' seven-year-old son, Bruce, the real property and automobile, and a part of the household goods and furniture. Marguerite received the sum of $500 as her share of the real property and the automobile, and the right of visitation of the child. Although Marguerite has appealed from the whole of the judgment, she states in her brief that 'The sole question involved in this appeal concerns the custody of the minor child of the parties, a boy of seven.'

It appears from the record that the parties had been married since 1933. In 1953 the respondent obtained employment in the Sacramento area, and brought his wife and child to West Sacramento to reside. A few months later respondent hired one Woodrow Buratti and he brought him home where he introduced him to appellant and the child. A short time thereafter respondent went to the hospital with a back injury, and Buratti called upon him frequently at the hospital and later at respondent's home.

In February, 1954, respondent and appellant separated. The respondent moved to Stockton and the appellant took a job in Sacramento. The appellant continued to see Buratti in Sacramento.

In October, 1954, the parties became reconciled, and appellant returned to Stockton. At this time Buratti was in the county jail in Sacramento serving a sentence for petit theft, and the appellant handled Buratti's business affairs for him, drove his car and visited him in the jail.

The reconciliation failed, and the parties separated for the last time in January, 1955. The appellant moved out of the family home and took the child with her. The action for divorce followed.

Buratti, who was a witness at the trial, admitted arrests and convictions for burglaries, petit theft, vagrancy and disturbing the peace in Yolo County, in Sacramento, Petaluma, San Rafael and Salinas. His record covers a period from 1937 to 1954 and much of this time he spent in prison, including a four-year term in San Quentin.

The record shows that the association of appellant with Buratti began prior to the separation of appellant and respondent and continued up to the date of the trial. This association included regular visits by Buratti at the parties' home while respondent was in the hospital, the exchange of suspicious letters between Buartti and appellant while Buratti was in jail in which Buratti expressed his love for appellant and asked her to marry him and made other rather frank statements which tended to show that appellant and Buratti were on very friendly terms. Buratti made regular visits to appellant's apartment during the separation of the parties. The impact of Buratti upon the appellant's life is described by her in these words: '* * * I hold him in deep respect, as far as what he has been to me, to my son, to Frank when he needed him, to our friends, but as far as any marital condition, no, there is nothing.' In answer to the question: 'What are your feelings toward Mr. Buratti today?', appellant replied: 'The same.' On cross-examination of appellant the following occurred: 'Q. And at that time, didn't you say in effect to your husband, regarding Buratti, 'there hasn't been near as much sex as you think there has'? A. Definitely.' There is testimony in the transcript indicating that the parties had no serious domestic problems prior to Buratti's appearance on the scene.

There is also evidence in the record from which it could fairly be inferred that there were drinking parties in appellant's apartment.

Appellant first attacks the finding of the trial court that she was not a fit and proper person to have the custody of said minor child. She argues that there was no evidence to support this finding and also argues that because of a statement made by respondent's counsel at the trial respondent cannot now claim that appellant is not a fit and proper person to have the custody of the child. Appellant quotes the following from the record:

'Mr. Langdon [counsel for respondent]: Well, we will submit she acts as a mother toward Bruce. Our only objection to her on Bruce is the fact that the man she keeps company with, that is our only objection. I don't think we need take the Court's time trying to prove she has been a good mother.

'Mr. Clark: If you will stipulate.

'Mr. Langdon: I am not stipulating, we are raising no issue on it.'

We do not regard the foregoing statements of counsel for respondent...