Allison v. Chatwin
Decision Date | 28 October 1965 |
Docket Number | No. 8687,8687 |
Parties | Chyrl ALLISON, Petitioner, v. Hon. Kenneth CHATWIN, Judge of Superior Court, County of Maricopa, Arizona, and James Ovens, Jr., Real Party in Interest, Respondents. |
Court | Arizona Supreme Court |
Lewis, Roca, Scoville, Beauchamp & Linton, by John J. Flynn and James Moeller, John J. Dickinson, Phoenix, for petitioner.
Robert K. Corbin, County Atty., for respondent Judge.
Charles Brewer, Herbert Mallamo, Phoenix, for respondent Ovens.
This is a petition for a writ of certiorari to review a decision of the Honorable Kenneth Chatwin wherein in fixed a supersedeas bond in the amount of $50,000 in a child-custody proceeding. Petitioner and James M. Ovens, Jr., were divorced in Maricopa County in 1958, at which time petitioner, Chyrl Allison, was awarded custody of the ten minor children, who were the progeny of that marriage. The proceedings involved in this application for the writ of certiorari concern only three of the children--viz., Kevin, James Bryan, and Terrence. Upon a petition for a change of custody, respondent court, Honorable Kenneth Chatwin, entered an order dated August 27, 1965, which was later reduced to formal judgment on September 13, 1965, transferring custody of these children from the petitioner-mother to the respondent-father, James M. Ovens, Jr. The order of August 27, 1965, provided that custody of the children was to be surrendered August 31, 1965.
Counsel for petitioner immediately filed a notice of appeal and petition to fix supersedeas bond, and was advised by the respondent court that counsel would be informed as to whether or not there would be a hearing on the supersedeas bond setting. Counsel for petitioner offered to post an appeal bond immediately, which was refused. Counsel for petitioner immediately applied to the Court of Appeals, Division One, for writ of mandamus and writ of prohibition. The Chief Judge of the Court of Appeals entered an order staying all further proceedings in the cause below until such time as the Court of Appeals had an informal hearing, which was set for September 22, 1965, or until such time as the trial court fixed supersedeas bond in a reasonable amount.
During this time counsel for respondent Ovens was proceeding by habeas corpus to secure custody of the children. On September 14, 1965, respondent Judge Chatwin conducted a hearing, and thereupon set sepersedeas bond in the sum of $50,000.
Petitioner filed this writ of certiorari to review the proceedings, in which the $50,000 bond was set, alleging that the same was unreasonable and an abuse of discretion on the part of the respondent court.
In Bailey v. Superior Court, 97 Ariz. 293, 399 P.2d 907, the lower court had granted a change of custody for a minor child. In discussing the proceedings in the lower court, in regard to the granting of a supersedeas bond, we said:
97 Ariz. at 294, 399 P.2d at 908.
In ruling upon the case, we stated:
'In Application of Lavis, 96 Ariz. 316, 394 P.2d 655, we again held that the signing of supersedeas bond stayed the execution in regard to custody of children:
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