Ward v. Ward
| Citation | 309 P.2d 965,150 Cal.App.2d 438 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 24 April 1957 |
| Parties | Carmela WARD, Plaintiff and Appellant, v. Rolland A. WARD, Defendant and Respondent. Civ. 9014. |
Wm. Wear Clark, Stockton, for appellant.
Airola & Airola, San Andreas, for respondent.
On January 26, 1955, in an uncontested action for divorce, plaintiff, Carmela Ward, was granted an interlocutory decree of divorce from defendant Rolland A. Ward. The provisions of a property settlement agreement were incorporated in the decree and provided as follows with reference to the custody of the two minor children of the parties:
'It is hereby agreed that the parties shall have joint custody of the said minor children during the minority of said children. So long as the wife is able and competent to do so, she shall have the care, custody, control and education of said minor children during their minority, without any interference whatsoever on the part of the husband, during the regular school terms. So long as the husband is able and competent to do so, he shall have the care, custody and control of the said minor children during periods of school vacations. 'School vacations' are those periods designated as such by the school authorities and do not include Saturdays and Sundays, except where such Saturday or Sunday shall follow or precede a regularly declared school holiday.
On October 6, 1955, defendant filed an affidavit for an order modifying the interlocutory decree with respect to the custody of the minor children, alleging in substance that plaintiff was becoming increasingly emotional and unstable of late, and that affiant believed that the plaintiff was proposing to have the children enter a passenger airplane to fly them to some place outside the jurisdiction of California, and that in such event affiant would be unable to visit them or have the custody as provided in the decree because of his business and occupation in Calaveras County. Defendant asked that he be given sole custody. Plaintiff filed a counter- motion asking for sole custody of the children and for the sum of $150 per month for their support, and for counsel fees, her supporting affidavit alleging in substance that the defendant was nervous and had a violent temperament and was attempting to influence the children against plaintiff, and that in the best interests of the children plaintiff should be given custody.
Upon stipulation of the parties a psychiatrist was appointed by the court and he reported that in his opinion the plaintiff had no mental symptoms that would interfere with her ability to care for and manage the children.
The hearing of the matter before the court occupied two full days and the court stated in its 'Rulings on Motions to Modify Interlocutory Decree' which appears in the clerk's transcript that 'The testimony may be characterized as charge and denial on behalf of both parties.' The court concluded its 'Rulings' as follows:
'Plaintiff's and Defendant's motions to modify the Interlocutory Decree will be denied, with the following exceptions:
'The children are not to be taken out of the jurisdiction of the court, the State of California.
'The children are not to be taken on a plane or boat.
'The children are to remain domiciled in Calaveras County.
'Counsel for plaintiff will be allowed the sum of $150 as an attorney fee, and It Is So Ordered.'
Plaintiff has appealed and her notice of appeal states that:
'The portions of said order which are hereby appealed from are as follows: (a) The portion thereof denying plaintiff's request for child support, (b) the portions of said order which provide as follows: 'The children are not to be taken out of the jurisdiction of the court, the State of California. The children are not to be taken on a plane or boat. The children are to remain domiciled in Calaveras County.''
The appeal is not taken upon any authenticated transcript of evidence or upon any bill of exceptions. The record here consists of a number of documents designated and requested by plaintiff's attorney to be copied and included in a clerk's transcript. A reporter's transcript was not requested.
Appellant first contends that 'the court had no authority to restrict or restrain the removal of the children from the State of California nor the removal of their domicile from Calaveras County, nor to restrain the parties from taking the children upon a plane or boat.'
Appellant argues that because the property settlement agreement and the interlocutory decree stated that appellant was awarded 'the care, custody, control and education of the minor children during their minority, without any interference whatsoever on the part of the husband (defendant), during the regular school terms,' she has the right to determine and to change their residence and domicile as she sees fit during those regular school terms, unless such change or removal would prejudice the rights or welfare of the children. She relies upon section 213 of the Civil Code which reads:
'A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper Court to restrain a removal which would prejudice the rights or welfare of the child.'
Appellant cites Heinz v. Heinz, 68 Cal.App.2d 713, at page 715, 157 P.2d 660, at page 662, in which the court, in reversing an order restraining a husband from removing his minor son from Los Angeles County, quoted said section 213 and said:
'In Luck v. Luck, 92 Cal. 653, 655, 28 P. 787, our Supreme Court states the rule thus: '* * * if he [the father] is entitled to the custody of the children at all, he has the right to name any reasonable place in which they shall abide with him. * * *'
'Applying the foregoing rule to the facts of the present case, since the trial court found that plaintiff was a fit and proper person to have the custody of his minor child and there was no finding that the child's rights or welfare would be prejudiced by his removal from ...
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Rosin v. Superior Court In and For Los Angeles County
...jurisdiction over the custody and support of the children (Gudelj v. Gudelj, supra, 41 Cal.2d 202, 209, 259 P.2d 656; Ward v. Ward, 150 Cal.App.2d 438, 442, 309 P.2d 965), and the order at bar is a continuing order authorizing the father to take charge of the children at specified intervals......
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...of its decrees, and the foreign court, on the basis of a change of circumstances, could impose other custodial orders. Ward v. Ward, 150 Cal.App.2d 438, 309 P.2d 965; Lerner v. Superior Court, 38 Cal.2d 676, 242 P.2d 321; Gantner v. Gantner, 38 Cal.2d 691, 242 P.2d The Supreme Court, in Ler......
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Jones v. Jones, 6625
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