Warshaw v. Ginsburg

• Decision Date: 10 October 1966
• Court: California Court of Appeals Court of Appeals
• Parties: Adline WARSHAW, formerly known as Adline Ginsburg, Plaintiff and Appellant, v. Sam H. GINSBURG, Defendant and Respondent. Civ. 28239.

Page 911

53 Cal.Rptr. 911

245 Cal.App.2d 513

Adline WARSHAW, formerly known as Adline Ginsburg, Plaintiff and Appellant, v. Sam H. GINSBURG, Defendant and Respondent.

Civ. 28239.

District Court of Appeal, Second District,

Division 4, California.

Oct. 10, 1966.

Mack, Berchin & Nast and Eugene C. Berchin, Los Angeles, for plaintiff and appellant.

Hirsch, Susman, Glushon & Gelfand and Alvin Hirsch, Beverly Hills, for defendant and respondent.

JEFFERSON, Justice.

This is an appeal by plaintiff, Adline Warshaw, from an order which terminated defendant's obligation, under an order previously made, to make payments for the support of the parties' minor children. Plaintiff contends the lower court abused its discretion in granting this relief to defendant.

Plaintiff was awarded a divorce from defendant in 1950 in Michigan and was given custody of their three minor children. Both plaintiff and defendant later moved to California. On September 30, 1958, by a stipulated judgment in the Superior Court of Los Angeles County, the Michigan divorce was established as a foreign judgment in full force and effect in California. As part of the stipulated judgment, defendant was ordered to pay monthly child support payments for the support of the three children. On June 24, 1959, the judgment was modified, allowing defendant certain visitation rights, and plaintiff was ordered not to use any surname for the children other than 'Ginsburg.'

On September 12, 1963, defendant filed an order to show cause in which he sought modification of his child support obligation under the September 30, 1958, judgment. Plaintiff countered with an order to show cause of her own also seeking modification of defendant's child support payments (upward), and in addition asked for attorney fees. On November 18, 1963, a hearing was held on both orders to show cause. By stipulation, affidavits introduced by both parties were deemed to be their testimony. The court thereafter made its order terminating (as of September 12, 1963), defendant's obligation to make further child support payments under the judgment theretofore in effect. Plaintiff's order to show cause was denied, and the parties were ordered to pay their own attorneys' fees.

In lieu of a reporter's transcript, the record on appeal has been augmented by the filing of an engrossed settled statement setting forth the evidence presented at the hearing of the respective orders to show cause.

Summarized, this evidence was as follows: According to the plaintiff there was no longer any relationship existing between himself and his children. He had not seen them in about a year. Prior to that he saw them only rarely. When, on various occasions, he came to visit with them, they were not at home, and he was advised by defendant that they were engaged in one type of activity or another. The last time he saw his two sons, Stewart and Mark (who were both 18 years of age), he told them to call him when they wanted to see him again. ¹ In 1959, defendant secured a court order to prevent plaintiff from calling the children by the surname 'Warshaw,' the name of plaintiff's present husband. Subsequently, however, a change of name petition was filed by the two sons through plaintiff as their guardian ad litem, seeking to change their legal names from 'Ginsburg' to 'Warshaw.' Notwithstanding defendant's objections, the court, on September 11, 1963, granted the petition. ² At the hearing on the petition the boys' stepfather Max Warshaw, stated that they were like sons to him and that they wanted to be like 'one happy family.' ³

Plaintiff's version was that, while she did not discourage the children from visiting with their father, she felt they were of sufficient maturity to decide when they wished to see him; if the children's relationship with defendant had become distant, it was because of defendant's lack of concern for them during their youth.

Stewart--one of the minor boys--testified that, as he and his brother had grown older, they had become more distant from their father. They had their own friends and activities and were not interested in the activities suggested by defendant when he visited them. If the court ordered him to do so, he would visit his father, but preferred to do so only if his own activities were not interrupted.

In its decision in the case of Dean v. Dean, 59 Cal.2d 655, 31 Cal.Rptr. 64, 381 P.2d 944, our Supreme Court stated certain well established principles of law which have application here: At page 657, 31 Cal.Rptr. at page 66, 381 P.2d at page 946, the court said': 'The general rule is that the trial court is without authority to order a reduction in the amount of alimony or support payments awarded in a decree of divorce in the absence of a showing that there has been a change in conditions subsequent to the entry of such decree; the court may, however, modify a support order because of changed circumstances (Civ.Code, § 139); whether the modification is warranted depends on the facts and circumstances of each case; the propriety of the modification rests in the first instance in the sound discretion of the trial court; and an appellate court will not interfere with the trial court's action unless, as a matter of law, an abuse of discretion is shown. (Citations.) Further, any conflicts in the evidence or in...