Sigesmund v. Sigesmund

• Decision Date: 29 January 1953
• Citation: 115 Cal.App.2d 628,252 P.2d 713
• Court: California Court of Appeals Court of Appeals
• Parties: SIGESMUND v. SIGESMUND. Civ. 19062.

Page 713

252 P.2d 713

115 Cal.App.2d 628

SIGESMUND v. SIGESMUND.

Civ. 19062.

District Court of Appeal, Second District, Division 2, California.

Jan. 29, 1953.

Rehearing Denied Feb. 24, 1953.

Burby & Broderick, William E. Burby, Los Angeles, for appellant.

Bautzer, Grant, Youngman & Silbert, Bernard M. Silbert, Ralph A. Fields, Beverly Hills, for respondent.

FOX, Justice.

The parties were married in March, 1937, and separated in March, 1950, after having lived together for 13 years. There are four children issue of the marriage, two girls and two boys. At the time of the separation the girls were respectively 8 and 12 years of age; the boys were 2 and 5. An interlocutory decree of divorce on the ground of extreme cruelty was granted to the plaintiff virtually without contest. There was, however, a bitter contest over the physical custody of the children, which was awarded to the defendant, it having been stipulated that the legal custody of the children be awarded to the parties jointly.

Plaintiff's first contention is that the court abused its discretion in awarding physical custody of the children to the defendant. The court found that defendant 'is a fit and proper person to have the physical custody of the minor children; that the welfare, benefit, education and well-being of the children require that their physical custody be with the mother;' that 'said minor children are well behaved and well adjusted; and that they have a feeling of security;' that the showing of neglect of the children on the part of the mother was slight; that although defendant had been guilty of marital misconduct and indiscretions, such misconduct and indiscretions were not committed in the presence of the children.

Plaintiff argues that the evidence establishes defendant is morally unfit to have the children's custody. He bases this largely upon alleged admissions of defendant in recorded conversations between him and his wife in their home and between her and a domestic employee. Defendant testified her recorded statements were not true and that those made to her husband were for the purpose of tormenting him and making him jealous. No specific findings were made on these matters.

It was, of course, for the trial court to determine the credibility of the witnesses, and to resolve the inconsistencies as well as the conflicts between defendant's out-of-court, recorded statements and her testimony. Peterson v. Peterson, 74 Cal.App.2d 312, 319, 168 P.2d 474; Hansen v. Bear Film Co., 28 Cal.2d 154, 184, 168 P.2d 946; People v. Frankfort, 114 Cal.App.2d 680, 251 P.2d 401.

Inasmuch as the court found that defendant was a fit and proper person to have the physical care and custody of the children, and since we must view the evidence in the light most favorable to such determination Estate of Isenberg, 63 Cal.App.2d 214, 216, 146 P.2d 424, and since the alleged admissions of defendant, if true, would seriously militate against her fitness, we must infer that the trial court did not find the alleged admissions to be true.

Other testimony (some of which is denied) to which plaintiff directs our attention, while justifying criticism of defendant's conduct, did not require a finding adverse to her on the question of her fitness to have the physical custody of the children.

The evidence shows that defendant is devoted to her children and their welfare; took great interest in their schooling, including special instruction in music, swimming, and tennis for the older children; regularly took them to Sunday school; painstakingly provided for their medical and dental needs; and gave consideration to their dietary requirements.

After visiting with the children in chambers, the trial judge commented that they were 'well behaved, alert, healthy, and apparently well adjusted' and that 'they had a high degree of affection for both parents * * *'

In custody matters the paramount interest of the court is the welfare of the children. In passing on charges and proof of conduct on the part of a parent a very broad discretion is vested in the trial court to determine the effect on the children of established behavior. It is only when a clear abuse of such discretion is made to appear that a reviewing court will interfere with the determination of the court below. Civil Code, sec. 138; Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295; Taber v. Taber, 209 Cal. 755, 290 P. 36. Applying these principles and bearing in mind the ages of the children and the undesirability of separating them, it cannot be said as a matter of law that the trial court abused its discretion in awarding defendant their physical care and custody subject to the further order of the court.

Plaintiff's contention that the trial court abused its discretion in awarding $900 per month for the support of the children cannot be sustained. The parties...