Clarke v. Clarke

In Clarke v. Clarke (1970) 4 Cal. App. 3d 583, a mother filed a motion to hold the father in contempt based on his failure to pay child support, and, although neither party raised the issue of child custody, the trial court dismissed the contempt matter and ordered the termination of child support payments contingent on the father's willingness to receive the children into his home and assume responsibility for their support. (Id. at pp. 586-587.) Noting that the order appealed from was a child custody order notwithstanding the fact that the trial court called it a support order, the Court of Appeal reversed the order on the ground that neither party had requested a change of custody in his or her pleadings, and no evidence was taken on the custody issue. (Id. at p. 588.)