Winn v. Winn
| Decision Date | 17 July 1956 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Frances R. WINN, Plaintiff and Cross-Defendant, Appellant and Respondent, v. Paul F. WINN, Defendant and Cross-Complainant, Respondent and Appellant. Civ. 16772. |
C. Dan Lange, Clyde R. Rockwell, San Francisco, for appellant.
Bray, Baldwin & Ogden, Martinez, for respondent.
Plaintiff Frances R. Winn was awarded an interlocutory decree of divorce. She appeals from the following portions of the judgment: an award of joint custody of the two minor children; an award of $50 per month as child support for both minor children; an order terminating all alimony payments after 18 months; and an award of $200 for attorneys' fees for her present attorneys, plus the sum of $50 for costs advanced. Defendant Paul F. Winn appeals from the portion of the judgment awarding plaintiff 50 percent of the accounts receivable of his medical practice as of July 7, 1954, as collected.
The parties were married in Arizona in 1933. Plaintiff filed this action for divorce on the ground of extreme cruelty in August of 1953. Defendant filed a cross-complaint for divorce, also on the ground of extreme cruelty. The action was brought to trial in July of 1954. At that time it was stipulated that the minor children of the parties, twin boys then of the age of eight and one-half years, should be allowed to remain in a private school in Monrovia, California, for a period of at least a year from the coming fall semester. Defendant agreed to pay the tuition for the boys on condition that they remain in this school. The parties further stipulated as to the manner in which certain community property should be divided between them.
At the close of the testimony the court orally announced its decision granting plaintiff an interlocutory decree of divorce on the ground of defendant's extreme cruelty. Custody of the children to be awarded to both parties with the provision that they should remain in the private school in Monrovia for a period of two years. Attorneys for both parties stated that the division of the community property had already been agreed upon. Plaintiff's attorneys were granted $250 for additional attorneys' fees. Plaintiff was to receive $50 per month for the support and maintenance of the children for other things besides their tuition and the sum of $375 per month for a period of eighteen months as alimony. Findings were waived by both parties.
On August 24, 1954, plaintiff substituted her present attorneys in place of those who had previously represented her. The substituted attorneys filed a Motion to Vacate Waiver of Findings of Fact and Conclusions of Law and for Allowance of Attorney's Fees and Costs. They also filed a Motion to Set Aside Submission and to Reopen Cause. The motion to reopen was granted for the limited purpose of receiving evidence on the issue of the accounts receivable of the defendant.
A hearing for the purpose of receiving evidence on the question of defendant's accounts receivable from his medical practice was held on January 10, 1955. At that time the court decided to give plaintiff 50 percent of these accounts as of July 7, 1954, as and when collected by defendant. An order was also made in plaintiff's favor for an additional $200 attorneys' fees and $50 costs for her present attorneys.
Defendant Paul F. Winn sought to have plaintiff held in contempt of court because of her action in removing the minor children from the private school where they had been placed by order of the court. He filed a Motion in re Contempt for this purpose on December 15, 1954. This motion was also argued on January 10, 1955. It appeared that one of the children had become seriously ill while in the private school and plaintiff removed both children from that school so that she might care for them. For this purpose she rented a house in Arcadia, California, and sent both of the children to the public school there. The trial judge said that plaintiff technically had no right to take the children out of the private school but he seemed inclined to believe that under the circumstances she was compelled to act as she did and he declined to hold her in contempt for her act. The court further determined to give the actual physical custody of the children to plaintiff retaining joint legal custody in both parties and he refused to increase the previously allowed $50 per month for their support. The provisions of his final order were carried into the interlocutory decree.
The Wife's Appeal.
The interlocutory decree contains the following provisions with regard to the custody of the children:
'The Court being fully advised in the premises * * * modified its announcement with respect to the custody of * * * the minor children * * *, directing that joint custody of said minor children be awarded to the parties hereto with physical custody to remain with the plaintiff and cross-defendant until further order of the Court * * * [this by way of recital.]
'It is further ordered, adjudged and decreed that the care, custody and control of * * * the minor children of the parties hereto be awarded jointly to the parties hereto * * * [this by formal order.]
'It is further ordered, adjudged and decreed that the defendant shall pay to the plaintiff the sum of $50.00 each month * * * as and for the care, support and maintenance of * * * the minor children * * * until they shall attain the age of twenty-one (21) years or until further order of Court * * *'
It will thus be seen that the decree formally gives joint custody (without, except by recital, giving actual physical custody to the mother) and at the same time orders support payments made to the mother until age 21 or the further order of the court, thus indicating that the court intended the mother to have physical custody. The judge announced that he intended to leave the children where they were, and if that did not work out the matter could later be brought before the court for possible modification. As we read the record it was the intention of the trial judge to continue actual physical custody in the mother and the unequivocal order for continued support payments to the mother in the decree itself bears this out. To avoid any possible ambiguity in this respect the decree is ordered amended to add the words 'with physical custody to remain in the plaintiff' to the paragraph of the decree awarding joint custody of the minor children to the parties. As so amended to carry out the expressed intention of the trial court, we cannot regard the custody award as unreasonable. The court's main concern in making a custody award is the best interest of the children and the court has a wide discretion in this matter. Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295.
The court awarded the...
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