Marriage of Dover, In re

• Citation: 15 Cal.App.3d 675,93 Cal.Rptr. 384
• Court: California Court of Appeals
• Decision Date: 26 February 1971
• Parties: In re the Marriage of Sandra Eileen DOVER, Respondent, v. Jimmy Lee DOVER, Appellant. Civ. 1437.

Page 384

93 Cal.Rptr. 384

15 Cal.App.3d 675

In re the Marriage of Sandra Eileen DOVER, Respondent, v. Jimmy Lee DOVER, Appellant.

Civ. 1437.

Court of Appeal, Fifth District, California.

Feb. 26, 1971.

As Modified March 26, 1971.

Terry L. Allen and Roland V. Howard, Merced, for appellant, Jimmy Lee dover.

Fishman & Moshenko, and D. M. Fishman, Buena Park, for respondent.

OPINION

GINSBURG, ^* Judge.

Petitioner, the husband, ¹ seeks a writ of supersedeas staying certain proceedings in superior courts and restraining the wife from proceeding further in actions in such courts pending the outcome of his appeal herein.

The application of the husband alleges that on January 23, 1970, the wife filed a petition in the County of Merced, asking for dissolution of her marriage with the husband pursuant to Civil Code section 4506, subdivision (1), and custody of the minor child of the parties. The husband filed a response asking for dissolution of the marriage, a determination of the property rights of the parties, and custody of the minor child, aged 4. The petition and response were in the forms prescribed by Rules 1281 and 1282, California Rules of Court. An order to show cause in re the custody of the minor child was issued at the request of the wife, and, by stipulation, the matter was referred to the probation officer for investigation and recommendation.

On May 8, 1970, the report of the Merced County Probation Department was filed; it recommended to the court that the husband or the grandparents, and not the wife, be granted custody of the minor child. Thereafter, and before the hearing re custody, the wife moved for a change of venue from Merced County to Orange County. Her motion was denied on July 2, 1970; the judge pointed out that to grant it would permit 'forum shopping.'

On the date set for hearing the order to show cause re custody, the wife filed a request for dismissal under the provisions of section 581 of the Code of Civil Procedure. ²

On September 8, 1970, the request was granted by the judge, over the objections of the husband made in open court, upon the ground that he had requested affirmative relief in the response. Prior to filing the request for dismissal of the Merced County proceeding, the wife filed a new proceeding for dissolution of marriage in Orange County (Orange County Proceeding No. D--40214 (Santa Ana)).

The husband filed timely notice of appeal from the judgment of dismissal in the Merced County proceeding, and his appeal is now pending in this court. The issue presented on the appeal is whether under the provisions of the Family Law Act (Civ.Code §§ 4000--5138) and the California Rules of Court promulgated by the Judicial Council pursuant thereto, ³ a matter may be voluntarily dismissed by the petitioner before the entry of the interlocutory judgment and after a response requesting a dissolution and other relief has been filed.

Appellant husband in the proceeding now before us asks for a writ of supersedeas to prevent the wife from proceeding in the Orange County action, and for such other and further relief as may be necessary to preserve his rights pending determination of this appeal. No reply has been filed or appearance made by the wife in opposition to the application.

We recognize that the rules governing such writs do not encompass a decision on the merits of the appeal.

'An application for a writ of supersedeas * * * is an auxilliary process in aid of (the court's) appellate jurisdiction to stay proceedings on the order or judgment from which the appeal is taken (citations omitted). It is not the function of such a writ to reverse, supersede, or impair the force of, or pass on the merits of the judgment or order from which the appeal is taken; the validity of such judgment or order is to be reviewed on the appeal therefrom. * * *' (Smith v. Smith, 18 Cal.2d 462, 464--465, 116 P.2d 3, 5.)

Nonetheless, we are constrained to note that upon the basis of the record before us, and assuming that the totality of the pertinent proceedings before the trial court are included therein, the judgment of dismissal will necessarily be reversed on this appeal. ⁴

In his application for writ and argument in support thereof, the husband alleges that the Superior Court of Orange County has denied his motion to quash and has set a hearing on an order to show cause in re custody of the minor child; this would give rise to two courts assuming concurrent jurisdiction if he prevails on this appeal. He further points out that he cannot ask for orders with regard to custody, support, and visitation rights in the Orange County Superior Court, and at the same time contest its right to proceed. Since the Superior Court of Merced County now regards the action there as dismissed, there is no forum to which the husband can apply for appropriate orders Pendente lite; without such a forum he cannot litigate custody or even obtain enforceable visitation rights.

The rule governing the circumstances under which supersedeas will issue has been recently stated in People ex rel. S. F. Bay, etc., Com. v. Town of Emeryville, 69 Cal.2d 533, at page 537, 72 Cal.Rptr. 790, at page 792, 446 P.2d 790, at page 792:

'So, too, the rule now is that in aid of their appellate jurisdiction the courts will grant supersedeas in appeals where to deny a stay would deprive the appellant of the benefit of a reversal of the judgment against him, provided, of course, that a proper showing is made. On principle, it would be a terrible situation if in a proper case an appellate court were powerless to prevent a judgment from taking effect during appeal, if the result would be a denial of the appellant's rights if his appeal were successful.'

Should the husband prevail on this appeal and the judgment of dismissal of the Merced County Superior Court be set aside, he would be entitled to a writ of prohibition to prevent the Superior Court of Orange County from proceeding further. (See Morrisette v. Superior Court, 236 Cal.App.2d 597, 603, 46 Cal.Rptr. 153, and Stearns v. L.A. City School Dist., 244 Cal.App.2d 696, 708, 53 Cal.Rptr. 482.) It would seem clear that in order to prevent a judgment of another court issued during the pendency of this appeal from depriving the appellant herein of the benefit of a reversal, a writ should now issue prohibiting the Orange County Court from proceeding further. But, as pointed out by the husband, if the Superior Court of Orange County is prohibited from proceeding, there will then be no court in which matters concerning the custody of the minor child of the parties Pendente lite can be litigated, absent further orders of this court. Code of Civil Procedure section 917.7 provides for the continuance in effect of certain orders concerning custody and visitation of minor children while an appeal is pending; there is no provision for the making of such orders pending an appeal from a dismissal. No citation of authority is necessary for the proposition that the welfare of a minor child of the parties is paramount to all other considerations in a dissolution matter pending before an appellate court as well as in one pending before a trial court; it would be an unthinkable result if the issuance of an order of this court resulted in there being no forum which could act to protect the interests of the child during the pendency of the appeal.

Section 923 of the Code of Civil Procedure in effect affirms the inherent power of a reviewing court to make such orders as may be necessary 'to preserve the status quo' during the pendency of an appeal. ⁵ In People ex rel. S. F. Bay, etc., Com. v. Town of Emeryville, Supra, 69 Cal.2d 533, 72 Cal.Rptr. 790, 446 P.2d 790, the Supreme Court issued a writ to prevent the defendant from conducting fill activities in San Francisco Bay during the pendency of the appeal; an injunction to this effect had ben dissolved by the trial court in the judgment appealed from. The court noted that had the defendant been permitted to resume its fill activities, it would have been able, as a practical matter, to render the appeal moot and the fruits of a reversal would be irrevocably lost.

Likewise, in the instant case, an inability on the part of the husband to be with the four-year-old child, coupled with...