Allison v. Ovens

• Decision Date: 22 November 1967
• Docket Number: No. 8941-PR,8941-PR
• Citation: 102 Ariz. 520,433 P.2d 968
• Parties: Chyrl Merth (Ovens) ALLISON, Appellant, v. James M. OVENS, Jr., Appellee.
• Court: Arizona Supreme Court

Page 968

433 P.2d 968

102 Ariz. 520

Chyrl Merth (Ovens) ALLISON, Appellant, v. James M. OVENS, Jr., Appellee.

No. 8941-PR.

Supreme Court of Arizona, In Banc.

Nov. 22, 1967.

Rehearing Denied Jan. 9, 1968.

John J. Dickinson, Phoenix, for appellant.

Charles M. Brewer, Jerry H. Glenn, Phoenix, for appellee.

JOHN P. COLLINS, Judge, Superior Court.

This matter is before us by a petition to review the decision of the Court of Appeals reported in 4 Ariz.App. 496, 421 P.2d 929. We granted the petition for the limited purpose of reviewing the jurisdiction of the trial court to make temporary custody awards of children pending appeal.

The trial court entered judgment modifying a previous decree of divorce relating to the custody of three minor children. The three children were awarded to the father, Dr. James M. Ovens, Jr., and the mother, Chyrl Merth (Ovens) Allison, appealed as to the change of custody relating to two only of the three children.

This case was before us previously (Allison v. Chatwin, 99 Ariz. 99, 407 P.2d 69) pending the appeal thereof in the Court of Appeals. There, the mother of said children sought a review of the decision of the trial court, wherein it fixed a supersedeas bond in the amount of $50,000, which amount was by this court held to be unreasonable and reduced to $4,000.

The trial court, anticipating the appellant might appeal the decision changing custody of the three children, held:

'IT IS FURTHER ORDERED, ADJUDGED and DECREED that pending any appeal that may be filed, that the care, custody and control of the minor children, Terrance, James Brian, and Kevin, be awarded to the defendant father, in furtherance of any appeal that might be taken herefrom, in order to guard the health, safety and welfare of the heretofore mentioned children, until a final determination may be made.'

This holding of the court is contrary to the previous decisions of this court.

Apparently the trial court misinterpreted our previous decisions on this subject, as was suggested by petitioner in the request for review. We were of the opinion that this court had made the rules clear in regard to custody of children on appeal, commencing with Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837, on rehearing 37 Ariz. 413, 294 P. 837, and the most recent of which was, of course, Allison v. Chatwin, supra.

Appropos the situation in granting this review was the following statement made on rehearing of the Gotthelf case, supra:

'* * * Ordinarily we do not write opinions on such motions (for rehearing), but, since respondent has suggested our original opinion is in some points confusing to the bar of the state on an important point of practice, we depart from our usual custom.' (Emphasis supplied.) 37 Ariz. at 414, 294 P. at 840.

In our recent decision on Hackin v. Superior Court, 102 Ariz. 93, 425 P.2d 420, we had an opportunity to review Allison v Chatwin, supra, and stated there in this regard as follows:

'In Allison v. Chatwin, 99 Ariz. 99, 103, 407 P.2d 69, this Court made clear its view of both the purpose of a supersedeas bond and a lower court's duty with regard thereto:

"The purpose of the supersedeas bond is to afford the party appealing from a lower court order to stay any further proceedings in the cause being appealed until such time as the appeal has been ruled upon by the reviewing court. Therefore, The lower court, upon notice of appeal, should determine as quickly as possible the amount of the supersedeas bond, stay execution for a reasonable time to permit the party appealing to post the bond, and thereby stay and preserve the status quo. Otherwise the effect might be to render nugatory the purpose of the supersedeas bond.' (Emphasis added.) * * *' 102 Ariz. at 94, 425 P.2d at 421.

Since, unlike Hackin, supra, the instant case does involve the custody of children, it would be appropriate to set out here the balance of the paragraph appearing in Allison v. Chatwin, supra, which was omitted in the Hackin opinion. It is as follows:

'* * * Any other procedure would mean that the whole living conditions and routine of the children would be disturbed by such a transfer in the event the court reversed the lower court's ruling in regard to the custody of the children.' 99 Ariz. at 103, 407 P.2d at 71.

It seems patently clear to us that insofar as supersedeas is concerned, there is no reason for a distinction between two appeals, the one involving an ordinary change of custody of minor children (Bailey v. Superior Court, 97 Ariz. 293, 399 P.2d 907), and the other case involving a civil appeal not involving change of custody (Hackin v. Superior Court, supra).

The precise question relating to supersedeas, which is presented to us on this review, is whether there is a logical reason for a distinction between two appeals, the one involving an ordinary change of custody of minor children (Bailey v. Superior Court, supra), and the other case being an appeal involving specific findings and order of the trial court relating to the necessity of a temporary change of custody, Pending any appeal, in order to safeguard the safety, welfare, and care of the minor childen (Allison v. Chatwin, supra).

Thus, in the instant case, the trial judge made express findings and an order relating to such temporary custody pending appeal. This court took note of such findings and order in our opinion in Allison v. Chatwin, supra, as follows:

"That it is absolutely essential, in order to guard the safety, welfare and care of the minor children, TERRENCE, JAMES BRYAN, and KEVIN, in the event of an appeal, that they be temporarily awarded to the custody of the defendant father herein, pending said appeal, and in furtherance thereof, until the final determination be made." 99 Ariz. at 102, 407 P.2d at 71.

Notwithstanding the aforesaid specific findings by the trial court, in Allison v. Chatwin, supra, we stated:

'It is not within the power of the lower court to award custody of children temporarily pending appeal. This court has held that in the filing of a supersedeas bond, the case shall merely by held in status quo, and the bond shall have no retroactive effect so as to undo or invalidate any act already done. In Application of Lavis, 96 Ariz. 316, 394 P.2d 655; Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837, on rehearing, 37 Ariz. 413, 294 P. 837.' 99 Ariz. at 102, 407 P.2d at 71.

If the rule were otherwise in the instant case, it would necessarily mean that the trial court, by its own act, could enlarge its jurisdiction into a field where it has no jurisdiction, Except to do acts in furtherance of the appeal. This was never contemplated by the legislature, nor by this court.

In Gotthelf v. Fickett, supra, this court reaffirmed its prior holdings that:

"When the Supreme Court has taken jurisdiction of a case on an appeal no inferior tribunal has any jurisdiction thereof, Except to perform the necessary acts in furtherance of the appeal." 37 Ariz. at 416, 294 P. at 840.

See also Sam v. State, 33 Ariz. 421, 265 P. 622, and Navajo Realty Co. v. County National...