Lerner v. Superior Court In and For San Mateo County

• Decision Date: 25 March 1952
• Citation: 38 Cal.2d 676,242 P.2d 321
• Court: California Supreme Court
• Parties: . S. F. 18448. Supreme Court of California, in Bank

Page 321

242 P.2d 321

38 Cal.2d 676

LERNER v. SUPERIOR COURT IN AND FOR SAN MATEO COUNTY et al.

S. F. 18448.

Supreme Court of California, in Bank.

March 25, 1952.

Marvin E. Lewis, Goldstein, Lewis & Barceloux, San Francisco, for petitioner.

Cosgriff, Carr, McClellan & Ingersoll, Burlingame, and Frank V. Kington, Redwood City, for real party in interest and respondent.

TRAYNOR, Justice.

During their marriage, Clarence and Betty Lerner adopted two children, Gerald and Linda. The marriage failed, and a final decree of divorce was entered on May 10, 1948. The decree awarded legal custody of the children to Clarence and Betty jointly, and physical custody to Betty for the greater part of each year. No appeal was taken from the final decree. On May 25, 1950, both parties consented to an order modifying the custody provisions of the final divorce decree to allow Gerald to attend the Menlo School For Boys as a full-time student.

On March 9, 1951, after application by Clarence, the final decree was modified to award custody of Gerald to his father, subject to the condition that the boy 'be kept enrolled in school as at present.' Betty promptly appealed from the March 9th order and her appeal is presently pending before this court.

On July 16, 1951, Clarence served notice that he would seek an order from the trial court authorizing him to enter Gerald as a student in the Oxford Academy of Individual Education, Pleasantville, New Jersey. Court permission for removal of the boy was necessary because the March 9th order granting custody to Clarence was conditional on Gerald's attendance at the Menlo School. The motive for Clarence's action is in dispute. Clarence alleges that Gerald cannot adjust himself to class instruction and requires individual education, that the Menlo School refused to accept him for another term, ¹ that educational authorities and a child psychiatrist recommend enrollment in the Oxford Academy, and that it will cost Clarence approximately $10,000 annually to send the boy to the New Jersey school. Betty asserts, however, that Gerald is a bright normal boy, that educational authorities inform her that it is not only unnecessary but would be harmful for Gerald to attend the Oxford Academy, and that the real motive for the boy's removal to New Jersey is to transfer him 3,000 miles from Betty.

On July 23, 1951, at the hearing on Clarence's motion, Betty advised the trial court that the filing of the appeal from the March 9th custody order had deprived the trial court of jurisdiction to make further modifications of the custody provisions of the final divorce decree. Nevertheless, the trial court took the testimony of several witnesses in support of Clarence's motion. Betty then filed an application with this court for a writ of prohibition and, after transfer of the petition to the District Court of Appeal, the alternative writ issued on August 10th, and it is still in force.

Trial Court Jurisdiction Pending Appeal

The first question to be determined is whether the trial court had jurisdiction to enter any order allowing Gerald to leave the state pending appeal from the March 9th custody order.

Section 946 of the Code of Civil Procedure provides: 'Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein * * *.' It is therefore well established that an appeal from a custody order deprives the trial court of jurisdiction to change the custody status at the time of the appeal. Vosburg v. Vosburg, 137 Cal. 493, 495, 70 P. 473; Ex parte Queirolo, 119 Cal. 635, 636, 51 P. 956; Browne v. Browne, 60 Cal.App.2d 637, 642, 141 P.2d 428; Moon v. Superior Court, 59 Cal.App.2d 447, 449, 139 P.2d 84; In re Browning, 108 Cal.App. 503, 506, 291 P. 650; see 2 Cal.Jur. 416-418; 27 C.J.S., Divorce, § 324f. 'An appeal from a judgment or order would be futile, and this court would be deprived of jurisdiction, if, pending the appeal, the judgment or order appealed from could be modified or changed into something radically different by a subsequent order of the lower court.' Vosburg v. Vosburg, supra, 137 Cal. 493, 496, 70 P. 473, 474. The loss of jurisdiction is so complete that even the consent of the parties is ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal. Kinard v. Jordan, 175 Cal. 13, 16, 164 P. 894.

Clarence contends that the trial court may nevertheless allow 'temporary' removal to New Jersey pending appeal, relying upon the provision in section 946 that 'the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from.' Clarence points out that the 'order appealed from' is the order of March 9th modifying the final decree by transferring custody of Gerald from Betty to Clarence. He states that his application to enroll the boy in the New Jersey school 'has absolutely no relationship' to the custody order, but would merely change the locale of the boy's education from the Menlo School to New Jersey.

The contention that the removal proceeding is not upon a matter embraced within the custody appeal disregards the factual setting of this action. At the time Betty perfected her appeal from the modification order of March 9th, the parents had joint legal custody and Gerald was enrolled full-time at Menlo School, where Betty wished him to be educated, where she could visit him, and where she could invoke the protection of California courts to enforce the provisions of the final divorce decree. The essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion. See Roche v. Roche, 25 Cal.2d 141, 144, 152 P.2d 999. If the child could be removed 3,000 miles to a school in New Jersey, chosen by Clarence against Betty's will, the provisions of the custody decree favorable to Betty would be vitiated. The proposed New Jersey order, in fact, would be more severe from Betty's viewpoint than the order appealed from. Under the March 9th order Betty lost legal custody, but the court at least ordered that the boy remain at a California school where Betty could visit him. The New Jersey order, by contrast, would effectively end visitation rights. Although the removal is labelled 'temporary,' it would substantially destroy the custody status at the time the appeal was taken, in clear violation of the provisions of section 946. Vosburg v. Vosburg, supra, 137 Cal. 493, 495, 70 P. 473.

Moreover, an examination of the recognition given custody decrees in other states demonstrates that the phrase in section 946, 'all further proceedings in the court below upon the judgment or order appealed from,' must be interpreted to include action by a trial court giving 'temporary' permission to take a child from the state pending appeal from a custody order. Although it may be assumed that the California decree would receive the same respect in other states that foreign custody decrees receive in our courts, see Sampsell v. Superior Court, 32 Cal.2d 763, 779, 197 P.2d 739, the physical presence of the child would give the foreign state jurisdiction to decide for itself what action would be in his best interests. Sampsell v. Superior Court, supra, 32 Cal.2d 763, 779, 197 P.2d 739; Foster v. Foster, 8 Cal.2d 719, 726, 68 P.2d 719; Titcomb v. Superior Court, 220 Cal. 34, 39, 29 P.2d 206; see In re B's Settlement, 1 Ch. 54 (1940); 160 A.L.R. 408; 17 Am.Jur. 521. Custody decrees are universally subject to modification upon a showing of facts that require a change in the order to protect what the foreign court considers the welfare of the child. Even if the foreign forum eventually follows the California decision, protracted litigation is meanwhile inevitable. Thus, in the Foster proceedings the South Dakota decree was eventually enforced in this state, but only after the parent disobeying the South Dakota decree kept the children in this state for three years of trial and appellate litigation. See Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719; Foster v. Foster, 5 Cal.2d 669, 55 P.2d 1175; Foster v. Superior Court, 4 Cal.2d 125, 47 P.2d 701; Foster v. Superior Court, 4 Cal.App.2d 466, 41 P.2d 187. Again, in Langan v. Langan, 80 U.S.App.D.C. 189, 150 F.2d 979, the father disregarded the provisions of a California decree and fled with the child to Maryland. The mother followed him and was awarded custody by the Maryland court but the father moved on to the District of Columbia before the mother could obtain physical custody of the child. Despite the conduct of the father, the District of Columbia court awarded custody to the father on the ground of changed circumstances. The father thus shopped from state to state until he found a court willing to award him custody. There are many other instances where parents violated court orders forbidding removal of a minor from the state with impunity. See In re Memmi, 80 Cal.App.2d 295, 300, 181 P.2d 885; Cook v. Cook, 77 U.S.App.D.C. 388, 135 F.2d 945, 946; Gaunt v. Gaunt, 160 Okl. 195, 196, 16 P.2d 579; Crowell v. Crowell, 184 Or. 467, 472, 198 P.2d 992; Haynie v. Hudgins, 122 Miss. 838, 853, 85 So. 99; White v. White, 77 N.H. 26, 30, 86 A. ,353; Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 423, 148 A. 524; Goldsmith v. Salkey, 131 Tex. 139, 146, 112 S.W.2d 165, 116 A.L.R. 1293; Jones v. Bowman, 13 Wyo. 79, 89, 77 P. 439, 67 L.R.A. 860; People ex rel. Wagner v. Torrnce, 97 Colo. 47, 51, 27 P.2d 1038; Helton v. Crawley, 241 Iowa 296, 41 N.W.2d 60; Ex parte Peddicord, 269 Mich. 142, 145, 256 N.W. 833. We do not mean to imply that the foregoing decisions were incorrectly decided. They are cited only to demonstrate that Betty cannot be adequately protected during her appeal if the trial court may enter orders allowing her child to be taken from the state....