Forslund v. Forslund

jeet at hand is that “The exact whereabouts of the plaintiff and the minors is unlmown. His mailing address is P.O. Box 725, Burlington, Vermont.” Such a statement, in our opinion, is insufficient to establish the residence or domicile of said children. Suffice it to say, however, the California court would have jurisdiction to modify the custody award, notwithstanding the children’s physical presence and domicile in Vermont, at the time the subject motion to modify was filed and acted upon. Section 138 of the Civil Code provides that “In actions for divorce or for separate maintenance the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody of such minor children as may seem necessary or proper and may at any time modify or vacate the same. ’ ’ This section has been held to expressly reserve to the California divorce court jurisdiction to modify its custody awards even though the children later become domiciled in another jurisdiction. (Davis v. Davis, 177 Cal.App.2d 75 , 77 [ 1 Cal.Rptr. 923 ] ; Dolgoff v. Dolgoff, 81 Cal.App.2d 146 , 148 [ 183 P.2d 380 ]; Marts v. Marts, 15 Cal.App.2d 224 , 225 [ 59 P.2d 170 ]; In re Kolb, 60 Cal.App. 198 , 200-201 [ 212 P. 645 ]; Maloney v. Maloney, 67 Cal.App.2d 278 , 280 [ 154 P.2d 426 ]; Rude v. Rude, 148 Cal.App.2d 793 , 797-798 [ 307 P.2d 679 ] ; Leverett v. Superior Court, 222 Cal.App.2d 126 , 132 [ 34 Cal.Rptr. 784 ].) This holding is in accord with that of a majority of the jurisdictions of this country, and is predicated upon the rule that a divorce court, which at the time of entry of its original decree had jurisdiction to make a custody award, retains continuing jurisdiction to modify such custody even though the children are domiciled and actually present in another jurisdiction. (See Davis v. Davis, supra, at p. 77; Dolgoff v. Dolgoff, supra, at p. 148; and see Sampsell v. Superior Court, 32 Cal.2d 763 , 778 [ 197 P.2d 739 ].)

Jurisdiction of the Person

Plaintiff asserts that the trial court did not acquire jurisdiction over him or the children because neither he nor they were served with a copy of the subject order to show cause. As hereinbefore narrated, the order to show cause was sent by mail to plaintiff’s attorney of record, to the county clerk, and to plaintiff at an address in Palo Alto, California. The notice required to be given to the respondent of an application for an order modifying the provisions of an order for child custody or support in a divorce action is that

instead of the party, except service of subpenas, of writs, and other process issued in the suit, and of papers to bring him into contempt.” This statutory provision for giving notice has been held to be constitutional, the rationale being that once the court has jurisdiction over the subject matter of the proceeding and over the person of the party affected, it may bind such person by orders made after he has left the state. (Reynolds v. Reynolds, supra, at p. 583.) Accordingly, since California had continuing jurisdiction to modify the subject custody order, plaintiff cannot avoid such jurisdiction by reason of his having left the state. (Leverett v. Superior Court, supra, 222 Cal.App.2d 126 , 134; Reynolds v. Reynolds, supra, at p. 583.) Jurisdiction over his person in subsequent modification proceedings relative to such custody order could, therefore, be obtained under section 1015 by service of notice upon his attorney of record. There is no requirement, where he has an attorney of record, that he be served personally when he resides out of the state. (See Conae v. Conae, 109 Cal.App.2d 696 , 697-698 [ 241 P.2d 266 ], where it was held that a provision in the order to show cause that the party be served personally was a nullity and void.)

Jurisdiction of the California court could not be avoided, moreover, by plaintiff’s leaving the state and discharging his California attorney. Assuming that plaintiff had discharged his attorney, as contended by him, he was still amenable to the jurisdiction of this state under section 1015. As we noted in Leverett, “Section 1015 informs parties who have appeared in an action or proceeding in this state that if they have no attorney of record the clerk of the court becomes their agent for the purpose of service. Accordingly, the burden is upon said parties to keep an attorney of record or to make such arrangements for notice with the clerk as they shall deem advisable.” (Pp. 134-135.) In the instant case the record shows that pursuant to a certificate of mailing, identical to that made with respect to plaintiff and his attorney, service by mail of the subject papers was made on May 7, 1962 upon “Jack G. Blue, County Clerk, at his office (residence) address Alameda County Courthouse, 1225 Fallon Street, Oakland 12, California.” Under the applicable principles hereinabove discussed relative to service by mail, such notice sufficed, in the event plaintiff had no attorney in the instant proceedings, to give him notice thereof and to give the court below jurisdiction over his person.

Plaintiff makes the further contention that since no

tice of the hearing in question was not given to the two minor children involved, the court erred in not affording them an opportunity to be heard. He cites, in support of his contention, the following statement from Witkin : “A custody proceeding is in personam, not in rem; hence the process requirements of personal actions apply, and notice of the proceedings must be given both to the child and the parents.” (1 Cal. Procedure, § 111, p. 376.) Witkin cites In re Saunders, supra, 76 Cal.App.2d 635 , 637 [ 173 P.2d 818 ], as authority for this proposition. Turning to the Saunders case we find that it does not furnish authority in support of plaintiff’s position, but that it is merely declarative of the general rule that a change of custody made without notice to the custodial parent is void. No mention is made therein of the necessity of giving notice to the child. We apprehend the California rule to be that proper notice to the custodial parent suffices to give the court jurisdiction to pass upon such child’s custody. In Dolgoff v. Dolgoff, supra, 81 Cal.App.2d 146 , the appellate court held that where the court had acquired jurisdiction of the parties to a divorce suit, and thus retained ancillary jurisdiction to modify the decree of divorce by awarding to either spouse the custody or necessary maintenance of their minor child, the court had authority to make such modification upon application of one spouse,upon due notice to the other, notwithstanding that the latter had acquired residence with the child in another state and the child was absent from this state. In Dolgoff the court stated that “the absence of the minor child from this state during the trial and subsequent proceeding for maintenance is immaterial. ” (P. 150.) The rationale of Dolgoff is that while the child is not formally a party to the divorce action between its parents, the child appears before the court because the court has jurisdiction over the parents who submit to it the determination of who, as between them, should have the custody or control of the child, and who should support it. (See Leverett v. Superior Court, supra, at p. 132; and In re Kolb, supra, 60 Cal.App. 198 , 200.)

The Trial Court’s Determination

Plaintiff contends that there is no substantial evidence supporting the trial court’s order changing the custody of Sharon and Robert from himself to defendant, and that in making such order the court abused its discretion. “An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court,

and its discretion will not be disturbed on appeal unless the record presents a clear case o£ an abuse of that discretion.” (Foster v. Foster, 8 Cal.2d 719 , 730 [ 68 P.2d 719 ]; Munson v. Munson, 27 Cal.2d 659 , 666 [ 166 P.2d 268 ]; Goto v. Goto, 52 Cal.2d 118 , 123 [ 338 P.2d 450 ]; Sanchez v. Sanchez, 55 Cal.2d 118 , 121 [ 10 Cal.Rptr. 261 , 358 P.2d 533 ].) The appellate court's function is fully performed when it finds in the record substantial evidence which supports the essential findings of the trial court. (Sanchez v. Sanchez, supra, at p. 126; Urquhart v. Urquhart, 196 Cal.App.2d 297 , 300 [ 16 Cal.Rptr. 469 ].) Accordingly, every presumption is in favor of the reasonableness of the order of modification, (Gudelj v. Gudelj, 41 Cal.2d 202 , 209 [ 259 P.2d 656 ] ; Gantner v. Gantner, 39 Cal.2d 272 , 275 [ 246 P.2d 923 ] ; Sanchez v. Sanchez, supra, at p. 121.)

In the early Supreme Court case of Crater v. Crater (1902) 135 Cal. 633 , 634 [ 67 P. 1049 ], we find it stated that the correct rule in custodial proceedings is that: ‘ ‘ The court, in revising and modifying its decree, proceeds upon new facts considered in connection with the facts formerly established, the change of circumstances, the conduct of the parties, and the best interests of the child. ’ ’ (Accord: Prouty v. Prouty (1940) 16 Cal.2d 190 , 195 [ 105 P.2d 295 ] ; Holsinger v. Holsinger (1955) 44 Cal.2d 132 , 135 [ 279 P.2d 961 ] ; West v. West (1960) 185 Cal.App.2d 700 , 702 [ 8 Cal.Rptr. 559 ].) In Foster, the general rule warranting the modification of a custodial order is stated thusly: " [T]o justify a modification there must be a change of circumstances arising after the original decree is entered, or at least a showing that the facts were unknown to the party urging them at the time of the prior order, and could not with due diligence have been ascertained. ” (P. 727; accord: Munson v. Munson, supra (1946) at p. 666; Gantner v. Gantner, supra (1952) at p. 276; Davis v. Davis (1953) 41 Cal.2d 563 , 565 [ 261 P.2d 729 ].) In Gantner and Davis it was declared that in the application of this rule the trial court must, in determining whether circumstances have changed, necessarily consider the facts established in the former proceedings as a basis for comparison. More recently, in Goto (1959) the Supreme Court reiterated the rule that “A showing of changed circumstances is required to support an order changing custody. [Citations.]” (P. 122.) Goto, however, recognized that the “ ‘changed circumstance’ rule” is not absolutely ironclad, but subject to exception where the welfare of the child re

quires it, even where there is no change of circumstances. (P. 123.) The latest statement by the Supreme Court is in Sanchez (1961) wherein the court states: “The rule is, of course, that ‘In a divorce proceeding involving the custody of a minor, primary consideration must be given to the welfare of the child. ...’ ” (P. 121.) Sanchez makes no reference to “the change of circumstances rule.” In Stack v. Stack (1961) 189 Cal.App.2d 357 , 370 [ 11 Cal.Rptr. 177 ], and Urquhart (1961) at page 301, in each of which Sanchez is cited, the reviewing court states that the change of circumstances rule “is no longer a rule, if it ever was one.” Stack notes that this rule is “judge made” for the purpose of protecting “the court, the parties and the child from interminable and vexatious litigation.” (P. 369.) Urquhart, although recognizing that the question of changed circumstances is an important consideration, states that it “is but evidence that the court may consider in the exercise of its discretion. ...” (P. 301.) Both Stack and Urquhart, after noting that modifications have been made and sustained on appeal with and without a showing of changed circumstances, observe, with philosophical resignation, that “The only rule consistently applied is that the court may modify or vacate its order at any time.” (Pp. 370 and 301-302, respectively.)

Notwithstanding the ominous observation made by this court in Stack that the appellate courts “have almost completely abdicated in this field in favor of the trial courts” and that because of the wide discretion given trial courts “reversals will be rare indeed” (pp. 372-373), we have made an attempt to reconcile the authorities and to distill from them the guidelines to be followed in cases of this type. Accordingly, we are satisfied that, while the paramount consideration in the modification of custodial cases is the welfare of the minor, the factor of changed circumstances is of considerable importance and should be considered in each case. Indeed, a review of the authorities discloses that in most of the cases considered on the appellate level the question of changed circumstances was before the court to a lesser or greater degree.

In Foster, the Supreme Court noted that “[i]t is perhaps possible to conceive of a case in which, despite the fact that there was apparently no change of circumstances, nevertheless, the welfare of the child might require that the previous order of custody be changed.” (P. 728; reiterated in: Goto v. Goto, supra, at p. 123.) It is apparent, therefore, that our Supreme Court contemplates that the power to change custody

without a showing of changed circumstances should be exercised with reluctance and only where imperative reasons require it. To hold otherwise would lay a foundation for interminable and vexatious litigation, as the dissatisfied party could keep the courts continually occupied with suits seeking to change the former order of the court in the hope that some other court might deem such change to be for the child’s welfare, even though the circumstances were no different than at the time of the making of the previous order. This danger was recognized in Connolly v. Connolly (1963) 214 Cal.App.2d 433 [ 29 Cal.Rptr. 616 ], wherein it was said that “repeated applications for change of custody without subsequent change of conditions should not be encouraged and may be a ground for denying change. ...” (P. 437.) We conclude, therefore, that, except in the rare occasions where the welfare of the child requires it, there should be a showing of changed circumstances to support an order changing custody, and that in each instance the court should be guided by the considerations specified in section 138 of the Civil Code relative to making, modifying and vacating custodial orders, to wit: “(1) By what appears to be for the best interests of the child and if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question; (2) As between parents adversely claiming the custody, neither parent is entitled to it as of right; but other things being equal, if the child is of tender years, custody should be given to the mother; if the child is of an age to require education and preparation for labor or business, then custody should be given to the father.” (See Goto v. Goto, supra, at pp. 122-123.)

Turning to the case at bench, in the light of the foregoing applicable principles, we find that the trial court’s determination was predicated upon defendant’s testimony and the report of the probation officer. Accordingly, we must view the evidential character of such testimony and report in order to determine whether there is substantial evidence in the record which supports the essential findings of the trial court. The sum and substance of defendant’s testimony is that plaintiff did not pay child support for the child in her custody, and that he left his last known place of residence without notifying her of his or the children’s whereabouts. Not only is there an absence of a showing of changed circumstances, but neither of these occurrences, in and of themselves, shows that the welfare or interests of Sharon and

those of domestic relations investigators may be considered as evidence by the court, and then may constitute competent evidence as to matters contained therein. (Code Civ. Proc., § 263; Well & Inst. Code, § 582; Fewel v. Fewel, 23 Cal.2d 431 , 433-436 [ 144 P.2d 592 ] ; Sanchez v. Sanchez, supra, 55 Cal.2d 118 , 125.) Such reports should be presented in affidavit form or otherwise under oath, and, upon timely demand, the. reporting -officer or investigator should be required to testify as any other witness, subject to the right of cross-examination. (Fewel v. Fewel, supra, at p. 436; Wilkinson v. Wilkinson, 105 Cal.App.2d 392 , 399-400 [ 233 P.2d 639 ].) It is convenient to note here that in Sanchez the reviewing court approved the use of the county probation officer’s report as evidence by the Alameda County Superior Court. Although the opinion does not disclose whether such report was verified, Sanchez is distinguishable on the basis that it was received in evidence pursuant to a reference to such officer upon the stipulation of the parties.

The report in the instant case was unverified; the reporting officer did not testify under oath; and the report was not received in evidence pursuant to stipulation. Accordingly, under the rule declared in Fewel such report was incompetent and inadmissible, and therefore was subject to a proper objection. In the present ease, however, no objection was interposed. Plaintiff cannot be heard to complain that he was not present to object. Defendant was entitled to proceed with the hearing in his absence when he failed to appear because, as we have hereinbefore pointed out, the court had jurisdiction over both the subject matter and plaintiff’s person. (§ 594; Clune v. Quitzow, 125 Cal. 213 , 214 [ 57 P. 886 ] ; McGuire v. Drew, 83 Cal. 225 , 230 [ 23 P. 312 ].) We are thus confronted with the well-established principle “that material and relevant evidence which is technically incompetent and inadmissible under the exclusionary rules, if offered and received without a proper objection or motion to strike, may be considered in support of the judgment.” (Witkin, Cal. Evidence, § 723, p. 751, and cases cited ; see McCormick. Evidence, § 54, p. 126 ; and see Estate of Fraysher, 47 Cal.2d 131 , 135 [ 301 P.2d 848 ] ; Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d 157 , 161 [ 195 P.2d 416 ].) Objection may not be raised for the first time on the appellate level. (Estate of Fraysher, supra, at p. 135; Soares v. Ghisletta, 1 Cal.App.2d 402 , 404-405 [ 36 P.2d 668 ].) Such incompetent and inadmissible evidence received

plaintiff’s creditors have contacted the probation department in their attempts to locate plaintiff in order to collect delinquent accounts. Included in the report is information received from Antone Montana, plaintiff’s former landlord, that plaintiff was indebted to him for rent and certain personal property amounting to $1,300; that plaintiff moved out during the night without his knowledge; that the house was left in a “very bad condition”; and that the older Forslund children kept themselves clean, but the younger children were “ ‘filthy.’ ” A Mrs. Bacon is alleged in said report to have stated that plaintiff, who was employed by her husband, obtained some appliances in her husband’s name without the latter's knowledge, sold the same and pocketed the money; that she furnished plaintiff’s home including carpeting costing $300 to $400, which amount plaintiff promised to pay but never did; that when plaintiff moved he took most of the furniture with him, leaving only that in poor condition; that she went to the house after plaintiff and his family had vacated it, and that it was “filthy”; that during the last few months plaintiff and his family lived in Palo Alto she fed them; that plaintiff and his present wife “should have been more concerned as to whether the children had any food to eat, rather than letting them find their own”; that she had been to the home a number of times and had never seen plaintiff correct his children; that the housework, child care and cooking were left up to the older children; “that some of the younger children hardly ever wore any clothing and one of the children never seemed to wear any panties”; that the plumbing in the house was poor; and that ‘ ‘ [h] er husband told her that the family had been using the bathtub when the toilet became plugged.” Mrs. Bacon is reported to have stated, however, “that the children were not behavior problems and were very likeable youngsters.” The report also shows that defendant’s employer states that defendant, although easily excitable, is a good worker and that she is interested in and anxious to have all three of her children together.

The balance of the report contains.the officer’s evaluation, summarizing the foregoing statements, and concludes with the following statement: “Inasmuch as the plaintiff's address was just recently obtained, there has been insufficient time to notify him of this hearing or to ascertain his present home situation. Due to this, we are unable to make a recommendation as to the custody of Sharon and Robert Forslund.”

Dyer v. Knue, 186 Cal.App.2d 348 , 351 [ 8 Cal.Rptr. 753 ]; Estate of Bishop, 209 Cal.App.2d 48 , 53 [ 25 Cal.Rptr. 763 ].)

In the instant case the court grounded its order upon the basis that plaintiff is subjecting the children “to a rather irregular and poorly controlled living condition.” The record does not disclose, however, whether the order is predicated upon a change of circumstances. An examination of the record on the whole fails to disclose that there is substantial evidence to support a finding on the essentials which this type of controversy requires. Not only is there a lack of evidence upon the paramount issue of the welfare and best interests of the children in question, but the record is wholly devoid of any evidence on the important consideration of whether the circumstances or conditions have changed so as to justify defendant’s request for a modification of the custody order. There is nothing in the record to show what the children’s living conditions were at the time of the hearing, the suitability of the home and the environment in which they were then living, or of personal behavior or characteristics of plaintiff insofar as they relate to the welfare of the children. The report of the probation officer concedes that, although he had ascertained the residence address of plaintiff in Vermont, he had not had the opportunity to ascertain the present “home situation.” It might well be that at that time the children were living under the most desirable of living conditions meeting the optimum requirements of their emotional and physical needs. It is noteworthy that while defendant was available to the probation officer’s investigation, the report is silent as to the condition and nature of her present home, nor is there any reference therein to defendant’s then personal behavior and characteristics. These circumstances were important considerations at the time of the making of the original custody order.

In sum, there is no showing of changed circumstances. While there has been a “change” in the sense that the children have been removed, presumably from this state to another, this move per se is not, as we have hereinabove pointed out, a “change of circumstance.” (See In re Bauman, supra, 82 Cal.App.2d 359 , 364.) Any suggestion that such a move is an aimless and nomadic peregrination is without foundation. At best, the record shows a change of residence from California to Vermont against which no restraint had been imposed. We do not approve or condone plaintiff’s move without advising defendant of his and the children’s whereabouts. Defendant, as the mother of the children, is entitled

to know where they are residing. It may well be that the move was made with the motive of frustrating defendant’s visitation rights. Such a deprivation, if it affects the welfare of the children, can be the basis for the transfer of custody. (See Stack v. Stack, supra, 189 Cal.App.2d 357 , 370; and Shea v. Shea, 100 Cal.App.2d 60 , 63 [ 223 P.2d 32 ].) However, in the instant case there is an absence of a showing that such removal is inconsistent with the welfare of the children. The burden of proving that the welfare of the child requires a change of custody, or that the circumstances and conditions have so changed as to justify such change, is upon the party requesting the modification. (Prouty v. Prouty, supra, 16 Cal.2d 190 , 193; Johnson v. Johnson, 72 Cal.App.2d 721 , 724 [ 165 P.2d 552 ].) It should be here noted, moreover, that in the September 5, 1961, report there was evidence submitted by defendant for the court’s consideration at the original custody hearing that plaintiff could not “offer a stable environment for the children” and that he has “moved frequently disrupting the children’s schooling. . . .”

Similarly, with regard to plaintiff’s failure to pay child support for Lawrence, and his difficulties with his creditors, it cannot be said, in the absence of a showing that such conduct affects the children’s welfare, that such conduct is a basis for a change of custody. Plaintiff’s poor credit record and his failure to pay his bills regularly were matters contained in the first probation report and, as such, were evidentiary factors considered by the trial court at the time it made its original custody order.

We are thus left with the hearsay and conclusionary evidence, admissible under the circumstances of this case, concerning the “filthy condition of plaintiff's home,” the doing of housework and cooking by the children, and Mrs. Bacon’s statement that she fed the children. Certainly the fact that children may perform housework and domestic duties does not indicate a condition detrimental to their welfare. It is significant to note that the circumstance of strict discipline on the part of plaintiff as contrasted with defendant’s laxity in this respect was also before the trial court when it made its first custody order. The fact that Mrs. Bacon fed the children, and her gratuitous statement that plaintiff and his present wife “should have been more concerned as to whether the children had any food to eat, rather than letting them find their own,” does not warrant the inference that the children were not fed by plaintiff or that they were neg

lected. With respect to the “filthy condition” of the home, we have such an appraisal on the part of the defendant without detail or elaboration and without regard to the time and frequency of such observation. This same charge was made by defendant in the first probation report wherein the probation officer noted that while the physical condition of plaintiff’s home “was not particularly neat” it was “not dirty or unsanitary.” The landlord's reference was to the condition in which the house was left when it was vacated and not to the living conditions while occupied. His remark that the younger children were “filthy” has no reference to Sharon and Robert who he acknowledged “kept themselves clean. ...” The reference by Mrs. Bacon to her husband’s statement as to the use of the bathtub is not only double hearsay, but it does not indicate how long and to what extent this purported condition existed or whether Sharon and Robert made such use of the facilities or whether they were in any way affected by such condition. While these circumstances constituted some evidence on the question before the court, they do not add up to the essential evidence of ponderable legal significance warranting a change of custody. Moreover, as noted by Justice Duniway in Stack, there can be an abuse of discretion even though there is some evidence to support the court’s decision. In the case at bench we do not have the essential probative facts showing a change of circumstances; much less do we have a showing of imperative reasons which would require a change of custody without changed circumstances. Accordingly, we are constrained to hold that there was an abuse of discretion.

In view of the conclusion herein reached, we need not discuss plaintiff’s assertion of error on the part of the trial court in refusing to consider the affidavits of Sharon and Robert submitted in connection with plaintiff’s motion for a stay of execution. Suffice it to say, these affidavits were not before the court when it made the order under attack and therefore would not be proper subjects of review on this appeal.

The order is reversed.

Bray, P. J., and Sullivan, J., concurred.