Denham v. Martina

• Decision Date: 24 July 1962
• Citation: 206 Cal.App.2d 30,23 Cal.Rptr. 757
• Court: California Court of Appeals Court of Appeals
• Parties: Rober Alfred DENHAM, Plaintiff and Appellant, v. Genevieve Blanche Denham (MARTINA), Defendant and Respondent. Civ. 166.

Page 757

23 Cal.Rptr. 757

206 Cal.App.2d 30

Rober Alfred DENHAM, Plaintiff and Appellant, v. Genevieve Blanche Denham (MARTINA), Defendant and Respondent.

Civ. 166.

District Court of Appeal, Fifth District, California.

July 24, 1962.

Barreiro & Dilling, James R. Dilling, Hanford, for plaintiff, appellant and petitioner.

Walch, Griswold, Braden & Dittmar, S. C. Dittmar, Jr., Hanford, for defendant and respondent.

CONLEY, Presiding Justice.

Rober Alfred Denham, plaintiff and appellant, petitions the court for a writ of supersedeas on his appeal from an order awarding a change of custody of his two minor children to the defendant and respondent. On May 23, 1955, an interlocutory decree of divorce was granted to him by the Superior Court of Kings County; the final decree was entered on June 4, 1956. By the decrees the custody of the minor children, Roger Gary Denham and Penny Denise Denham, was awarded to neither party but to plaintiff's parents, Ivo C. Denham and Vera Denham, subject to the defendant's right of reasonable visitation. During most of the invervening period the father of the children has lived with them in the home of his parents. The defendant is remarried and resides in the State of Illinois.

On June 18, 1962, the Superior Court of Kings County made an order requiring plaintiff to show cause why the decree of divorce should not be modified by awarding the custody of the children to defendant and respondent. Plaintiff thereupon filed a motion for modification of the decree to give him custody of the children. The order to show cause and the motion for modification were consolidated, and a hearing was held on July 3, 1962, resulting in an order that custody of the children be awarded to defendant with reasonable rights of visitation reserved to the plaintiff.

As a result of this order, unless a writ of supersedeas is issued as requested by appellant, the mother, after the expiration of the statutory stay (Code Civ.Proc. § 949a) will remove the children to her own home in Illinois, thus changing their place of residence from California to Illinois.

On July 5, 1962, appellant filed a notice of appeal. The decision of this application for supersedeas involves a construction and application of section 949a of the Code of Civil Procedure as amended in 1957. By its terms that section stays the enforcement of the order for a period of 30 days from its entry; the section provides that a further stay may be granted by the superior court or that a stay by writ of supersedeas or other writ or order may be effected by this court to protect the appellate jurisdiction. Section 949a of the Code of Civil Procedure reads as follows:

'An appeal does not stay proceedings as to those provisions of an order or judgment which award, change or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, action filed under the Juvenile Court Law, or special proceeding nor the provisions of an order or judgment for the temporary exclusion of a party from a family dwelling or the dwelling of the other, as provided in Section 157 of the Civil Code; provided, the trial court may in its discretion, stay execution of such provisions pending review on appeal or for such other period or periods as to it may appear appropriate; provided further, that in the absence of a writ or order of an appellate court providing otherwise, the provisions of such an order or judgment allowing, or eliminating restrictions against, removal of the minor child from the State are stayed by operation of law for a period of 30 days from entry of the order or judgment and are subject to any further stays ordered by the trial court, as herein provided. The appellate court shall have the power to issue a writ of supersedeas, injunction, or other appropriate writ or order in such proceedings as may be proper in aid of its jurisdiction.'

It is an important right and duty of the courts of this state to preserve their effective jurisdiction and control over cases which are heard by them until final judgment. If the order should be reversed on appeal and the children are then no longer within the territorial limits of the State of California, it would be impossible in the absence of wholly voluntary cooperation on the part of the defendant to enforce any change of the order for custody at that time. This basic fact was repeatedly recognized by our courts prior to the enactment of section 949a of the Code of Civil Procedure in its present form. At that time the courts of this state laid down an inflexible rule that they would not permit the execution of an appealed order of a trial court which would have the effect of making it impossible for them later to enforce their own decrees because of the absence of the children from this state.

In Lerner v. Superior Court, 38 Cal.2d 676, 684, 242 P.2d 321, 325, it is said:

'An order which so disturbs the custody of the child as to permit him to be taken out of this state, pending final determination of the appeal, would be an act in excess of the jurisdiction of the trial court.'

(See also Gantner v. Gantner, 38 Cal.2d 691, 242 P.2d 329; Gantner v. Superior Court, 38 Cal.2d 688, 242 P.2d 328; Foster v. Superior Court, 4 Cal.2d 125, 127, 47 P.2d 701; Milne v. Goldstein, 194 Cal.App.2d 552, 557, 15 Cal.Rptr. 243; Ward v. Ward, 150 Cal.App.2d 438, 309 P.2d 965.)

Section 949a of the Code of Civil Procedure, by ite terms, recognizes the right of the appellate court to issue a writ of supersedeas or other appropriate writ or order in aid of its jurisdiction, and the basic reasons for the earlier decisions of the upper courts of the state still persist. In this connection, the intervening opinions of our courts since the enactment of section 949a in its present form should be read with the clear distinction in mind between cases in which the children will remain in California due to the...