APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Messrs. Baker & Whitney, Mr. Lawrence L. Howe, and Mr. H. S. McCluskey, for Appellant.
Mr. Amos A. Betts and Mr. Herman Lewkowitz, for Appellee.
[39 Ariz. 272] LOCKWOOD, J.
Phyllis Gilman Long, hereinafter called plaintiff, was married to defendant John R. C. Long, Jr., hereinafter called defendant, on March 27, 1928. On June 21, 1929, a daughter, Lenore Long, was born to the parties, and on May 20, 1930, plaintiff filed a complaint for a divorce in the superior court of Maricopa county. On June 9th, the decree was granted, and plaintiff awarded the custody of the child, together with $25 per month for its support and maintenance, subject to rights of visitation twice a week during reasonable hours by defendant. No request was made by plaintiff for either permanent or temporary alimony, except for her care during an existing pregnancy and probable accouchement, and no order was made allowing her alimony in any amount.
Some two weeks after the divorce was granted, plaintiff went with her mother to
Los Angeles, California, for the summer, as had been her custom for some years. On December 5, 1930, a second daughter, Liane Long, was born, and in February, 1931, plaintiff returned to Phoenix with her mother and the two children. Defendant was informed of the birth of the second child shortly after it occurred, and, after plaintiff returned to Phoenix, he saw both her and the children once, but separately.
On February 20, 1931, defendant filed a petition in the divorce proceedings, praying that plaintiff be prohibited from removing the minor children from the jurisdiction of the court except for the summer months, and not to exceed a reasonable distance from [39 Ariz. 273] Arizona, and in no case beyond the United States. Plaintiff filed a cross-petition, praying for alimony for herself in the sum of $125 per month, for $75 per month for the support of the minor children, and for $374.15, being the physician and hospital expenses incurred in the birth of the second child, with a reasonable attorney's fee. The matter was heard and findings of fact made which read, so far as is pertinent, as follows:
"That soon after the granting of said decree, said plaintiff, Phyllis Long, removed the said Lenore Long without the jurisdiction of this Court, to-wit, to the State of California, and continued to remain with said child therein for a period of approximately seven months; during which time said second child was born; and that the plaintiff thereby prohibited said defendant, John R. C. Long, Jr., from exercising said visitorial rights; that the said Phyllis Long is contemplating again removing each of said children from the jurisdiction of this court; and the Court further finds that it will not be injurious to the welfare of said children to permit the defendant, John R. C. Long, Jr., to have and exercise visitorial rights, and that said John R. C. Long, Jr., is a fit and proper person to have the custody of said children at reasonable and seasonable hours; and the Court further finds that said decree contained no provision for the support and maintenance of the plaintiff, Phyllis Long; and the Court further finds that said decree contained no provision for the support and maintenance of said last born child, and that the defendant has voluntarily contributed to its support the sum of Fifteen Dollars per month since the time of its birth; and that the defendant has voluntarily procured life insurance in the sum of Twenty-Seven Thousand Dollars, payable to said children, and the Court further finds that it is to the best interest and welfare of said children that they be retained within the jurisdiction of this Court; and the Court further finds that by reason of the action of the plaintiff, Phyllis Long, to-wit, in the removal of said child, Lenore Long, from the jurisdiction of this Court, and by her further [39 Ariz. 274] acts in keeping said child out of the jurisdiction of this Court for a period of approximately seven months she caused the defendant, John R. C. Long, Jr., to file in this Court his petition for an order to show cause. . . ."
Upon such findings, the court ordered that the decree be amended, requiring defendant to pay $50 per month for the support of the children, and that he be given visitorial rights and permitted to take them into his custody each Sunday afternoon during certain hours, and that the plaintiff be required to keep the children within the jurisdiction of the court and not to remove them without further order of the court. From said order, plaintiff has appealed.
There are some eight assignments of error, which may be summed up in two legal propositions: (1) That the court was without jurisdiction to make the order; and (2) that it was an abuse of discretion. We consider these two legal propositions in their order.
So far as jurisdiction is concerned, we think the matter is covered by section 2188, Revised Code of 1928, which reads as follows:
"The court may from time to time after the entry of final decree, on petition of either party, amend, revise and alter such portions of the decree as relate to the payment of money for the support and maintenance of the wife or the expenses of the proceedings, as may be just, and amend, change or alter any provision therein respecting the care, custody or maintenance of the children of ...