Walker v. Superior Court

Dorothy Walker, petitioner, is the defendant and cross-complainant in an action for divorce commenced in March 1965 by Charles Walker, the real party in interest, in the Superior Court for Ventura County.

Petitioner challenges the validity of the orders of the respondent court of September 7 and 8, 1966, that Charles Walker, one of the minor children of the parties, shall remain in the custody of the father, and that he shall be permitted to take the child with him to Canada to reside with him there during the period of his employment in Canada, upon the posting of security, notwithstanding her appeal from that order. We granted the petition for review because of the petitioner ’s contention that the court had no jurisdiction to make the order in question.

The facts essential to our determination of the question of jurisdiction appear in the record of the proceedings in the trial court filed in response to our writ. At the time the parties were married in December 1959 petitioner, here referred to for convenience as the mother, was the mother of two minor children by a former marriage, namely, Richard, born in November 1947, and Jane, born in February 1949. After the marriage the real party in interest, here referred to for convenience as the father, adopted these two children. Charles Walker, who is the pawn in the present dispute, was born May 4, 1963. As the trial court found, in its memorandum of decision of August 31, 1966, the mother voluntarily surrendered the physical custody of all three children to the father shortly after his complaint was filed without any order of the court “and without a fight in court, in spite of the fact that she had the aid of counsel, and in spite of the fact that she had ample funds for litigation, and . . . allowed this situation to continue for just about a year before she finally sought to raise the custody question before the court.” Ever since then all three children have been and now are in their father’s custody. Richard and Jane, who are not involved here, have expressed a strong desire to remain with their father. The mother does not seek to regain their custody.

On August 31, 1966, the court filed the memorandum of decision to which we have already referred. After commenting on some of the facts and noting that his order of April 22 had been made “upon considerably less evidence and without the aid of a report from the probation office,” the court said: “I feel that after the mother left the home a new family unit was constructed and I dislike disturbing it by a new temporary custody order. I feel like leaving the new family unit intact, at least until the divorce trial. ’ ’

Although it is not clear from the record how the matter came to the court’s attention, we must assume from the further comments of the court in its memorandum of decision that at the hearing on August 18, 1966, the father testified that he was planning to move to Canada at the direction of his employer, and planned to move the children to Canada. “I am concerned,” said the court, “that the father now plans to move the family to Canada. This plan, were it to become permanent, would greatly diminish the mother’s opportunities for visitation. I think the husband, by making a decision to go to Canada before securing a final decision on the custody question, has made the question more difficult. However, the planned living accommodations in Canada seem to be very good, and I am disposed to allow the father to take the child to Canada with the rest of the children upon the conditions which I will set forth below. ’ ’

The conditions referred to in the memorandum of decision are reflected in the court’s order of September 7, which is the subject of this proceeding. So far as is pertinent here, that order reads as follows: “It is hereby ordered that the custody of the minor child, Charles Walker, shall remain in the custody of the plaintiff. The existing custody order is therefore not modified except as follows: That plaintiff may take minor child to Canada to reside with him there or near his place of employment during such period as he shall continue

The order of September 7 was filed September 8, together

In the proceeding now before us the mother seeks an annulment of the order of September 7 with respect to the custody of the child and of the order of September 8 approving the bond, on the sole ground that the court acted in excess of its jurisdiction in making those orders. Our only concern is with the narrow question thus raised. We are not concerned with the question of whether the order of September 7 is an appeal-able order, or with the merits of the case. Those matters can be settled when the record on appeal is filed.

In our opinion the trial court had jurisdiction to make the order complained of. As the court said in Stack v. Stack, 189 Cal.App.2d 357 , at page 366 [ 11 Cal.Rptr. 177 ]: “Civil Code, section 213, gives a parent entitled to the custody of a child the right to change its residence, but subject to the power of the court to restrain a removal which would prejudice the rights or welfare of the child. There is no doubt that a California court can permit a parent who has custody of a child to remove the child from the state, either to a sister state (Shea v. Shea, 100 Cal.App.2d 60 , 63 [ 223 P.2d 32 ]), or to a foreign country (Gantner v. Gantner, supra, 39 Cal.2d 272 , 280 [ 246 P.2d 923 ]).’’

In Shea v. Shea, 100 Cal.App.2d 60 , the court said (pp. 63-64 [ 223 P.2d 32 ]) : “Taking the order [appealed from] at its face as merely one prohibiting the father who had custody, from removing the children from the state, the court had no power to make such an order. Plaintiff has cited no authority, and we have found none, for her contention. While there are no eases in California on the question of taking the children out of the state, it has been held that a court, in the absence of a finding that the child's removal would prejudice its rights or welfare, has no power to prohibit the parent having custody from taking the child out of a particular county. Thus, in Heinz v. Heinz, 68 Cal.App.2d 713 [ 157 P.2d 660 ], it was held that the court exceeded its authority in prohibiting the father to whom it gave the custody of his minor son, from removing him from Los Angeles County. After quoting 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’ the opinion

The rule also finds support in Milne v. Goldstein, 194 Cal.App.2d 552 , where the court said (pp. 556-557 [ 15 Cal. Rptr. 243 ]) : “A parent who has been awarded either sole or joint custody and right of physical possession of children may, under certain circumstances, remove them from the state. (Civ. Code, § 213; Shea v. Shea, 100 Cal.App.2d 60 , 63 [ 223 P.2d 32 ]; Gantner v. Gantner, 39 Cal.2d 272 , 280 [ 246 P.2d 923 ].) The permissive circumstances are usually a showing that the best interests of the children would be promoted by their removal (Gantner v. Gantner, supra), and the absence of specific prohibition against removal in the custody order. (In re Bauman, 82 Cal.App.2d 359 [ 186 P.2d 154 ]; In re Dehn ing, 135 Cal.App.2d 635 [ 287 P.2d 782 ]; In re Memmi, 80 Cal.App.2d 295 [ 181 P.2d 885 ].) The fact that the resident parent may be deprived of visitation rights is generally not alone sufficient to justify restraint on the other parent’s free movement unless the latter is inconsistent with the welfare of the child. (Dozier v. Dozier, 167 Cal.App.2d 714 , 719 [ 334

Here, as we have seen, the petitioner had voluntarily surrendered the custody of the three children to their father shortly after he filed his action for divorce in March 1965. When their mother sought to regain custody of the youngest child, Charles, the court awarded his custody pendente lite to the father. Consequently, the order of September 7 permitting the father to take the child with him to Canada, together with the two older children, did not deprive the mother of any custodial rights. The fact that the mother might thereby be deprived of some visitation rights did not affect the jurisdiction of the court to modify the previous custody order as it did.

The case of Lerner v. Superior Court, 38 Cal.2d 676 [ 242 P.2d 321 ] relied on by petitioner is not controlling here. There the mother had appealed from an order awarding to the father sole custody of one of the minor children whose custody had been awarded to both parents jointly by the final decree. The court held that by reason of section 946, Code of Civil Procedure as it then read, the trial court had no jurisdiction pending appeal to modify the order appealed from so as to permit the father to take the child out of the state. In the ease before us no appeal from the order of April 22, 1966, was pending when that order was modified by the order of September 7. It should also be noted that both Lerner and Gantner v. Gantner, 38 Cal.2d 691 [ 242 P.2d 329 ] were decided in 1952, before the 1955 amendment to section 946 and the enactment of section 949a of the Code of Civil Procedure.

The other points urged by petitioner do not relate to the jurisdiction of the trial court to make the order here in question, and call for no consideration by us.

Fourt, Acting P. J., and Lillie, J., concurred.