Pike v. Pike

• Decision Date: 21 March 1946
• Docket Number: 29862.
• Citation: 167 P.2d 401,24 Wn.2d 735
• Parties: PIKE v. PIKE.
• Court: Washington Supreme Court

167 P.2d 401

24 Wn.2d 735

PIKE v. PIKE.

No. 29862.

Supreme Court of Washington

March 21, 1946

Department 1

Action by Virginia M. Pike against Randyl L. Pike, wherein defendant was granted an interlocutory decree of divorce and the custody of children, and plaintiff appeals. On motion filed in Supreme Court by respondent for an order compelling appellant to show cause why she should not deliver to respondent the children in accordance with the order of the court, or for an order punishing appellant for contempt and dismissing her appeal in event of failure to comply with custody order.

Order dismissing appeal on appellant's failure to comply with interlocutory order

MALLERY J., dissenting.

Newman & Cook, of Seattle, for appellant.

Bassett & Geisness, of Seattle, for respondent.

SIMPSON Justice.

This case comes to us upon a motion filed in this court by respondent. The motion asked for an order compelling appellant to show cause why she should not deliver to respondent two children of appellant and respondent who had been awarded to respondent by the trial court in a divorce proceeding, and that in the event appellant did not so deliver the children she be punished for contempt and her appeal dismissed.

An order to show cause why the motion should not be granted was issued by the chief justice of this court. A copy of the order was served upon counsel for the appellant. Appellant appearing specially through her attorney, challenges the jurisdiction of this court to entertain the motion and then moves that the service of the order to show cause be quashed. Appellant then shows by affidavit that the respondent had threatened the appellant with grest bodily harm, is a dangerous person to have the custody of the children, and has repeatedly told appellant that if he secures the custody of the children he will remove them from the state of Washington.

Appellant's affidavit makes the additional showing that the children are well cared for in a good environment, and are receiving proper instruction and school training. Appellant has refused to disclose the present abode of herself and children.

The record on appeal discloses certain facts necessary to be related at this time. Respondent and appellant intermarried May 4, 1935. The parties have two children, one age nine, and the other age seven years. Appellant instituted suit for divorce. A trial was had, findings of fact and conclusions of law were made, and an interlocutory order of divorce was entered. By the terms of the order a divorce was granted respondent and he was given the care, custody, and control of the children, subject to the right of appellant to visit them and to have them in her care at certain times. The interlocutory decree was entered and notice of appeal to this court was given November 2, 1945. On November 5, 1945, $200 as cash bond on appeal was deposited with the county clerk. It was subsequent to that date that appellant removed the children from their home and placed them at a place unknown to either respondent or her attorney.

It is respondent's contention that this court has jurisdiction to and should compel obedience to the mandates of the trial court as reflected in the interlocutory order. Appellant on the other hand takes the position that this court is without jurisdiction. Her counsel gives two reasons for their contention: First, that the appellant was not personally served with the order to show cause issued out of this court and, second, that this court has only appellate jurisdiction and cannot pass upon motions relative to the enforcement of the judgment rendered in the superior court.

The relief sought in the present proceedings has to do with litigation that is not concluded and involves the enforcement of the original decree pending appeal.

Jurisdiction of the courts in divorce matters continues after the rendition of the decree, and the courts, subject of course to certain limitations, may at any time make orders concerning the subject matter of the action. Poland v. Poland, 63 Wash. 597, 116 P. 2; Dyer v. Dyer, 65 Wash. 535, 118 P. 634; Bedolfe v. Bedolfe, 71 Wash. 60, 127 P. 594; Harris v. Harris, 71 Wash. 307, 128 P. 673; Beers v. Beers, 74 Wash. 458, 133 P. 605; Croft v. Croft, 77 Wash. 620, 138 P. 6; State ex rel. Jones v. Superior Court for King County, 78 Wash. 372, 139 P. 42; Cooper v. Cooper, 83 Wash. 85, 145 P. 66.

Mr. Lee L. Newman of the Seattle bar has been acting for appellant since the inception of this litigation and it was upon Mr. Newman that serve of our show cause order was had. Service of process respecting active actions may be made upon attorneys of record in litigation that has not been finally concluded. Sturgiss v. Dart, 23 Wash. 244, 62 P. 858; Dane v. Daniel, 28 Wash. 155, 68 P. 446; In re Force, 113 Wash. 151, 193 P. 698; Harju v. Anderson, 125 Wash. 161, 215 P. 327.

It is true that the cases just cited refer to proceedings relative to the vacation of judgment. However, the principle is the same in this and cited cases, in that in each we find contentions relative to the case that has not been finally concluded. We hold that the service of the order to show cause issued out of this court upon counsel for appellant was proper and was in effect service upon appellant.

The next question for consideration is whether this or the superior court has jurisdiction to determine the question presented.

It is the rule in this state that after appeal has been perfected, the trial court loses all jurisdiction of the matters concerned in the case except those provided for in the law relating to appeals. Irving v. Irving, 26 Wash. 122, 66 P. 123; State ex rel. Davenport v. Poindexter, 45 Wash. 37, 87 [24 Wn.2d 739] P. 1069; Gust v. Gust, 71 Wash. 75, 127 P. 566; State ex rel. Clark v. Superior Court for King County, 90 Wash. 80, 155 P. 398; State ex rel. Wilkerson v. Superior Court for Yakima County, 108 Wash. 15, 183 P. 63.

The decision of this court in the Irving case is controlling here. In that case, disposition of the child was made in the divorce proceedings, and an appeal from the order of the superior court was taken to this court. Thereafter, one of the parties to the action petitioned the superior court to change the custody of the child. To that petition a plea in abatement was presented, setting up the matters relating to the appeal taken to this court. The trial court changed the custody of the child and an appeal was taken from that order. In passing upon the question this court stated [26 Wash. 122, 66 P. 124]: 'The appellants contend that the court erred in sustaining the demurrer to the plea in abatement, and in our opinion this contention must be sustained. The statute permits an appeal from orders and judgments of this character. The statute also provides section 6515, Ballinger's Ann.Codes & St.) that upon the taking of an appeal by notice, and the filing of a bond to render the appeal effectual, the supreme court acquires jurisdiction for all necessary purposes, and has control of the superior court and all inferior officers in all matters pertaining thereto. The subject-matter of controversy in both these petitions was the right to the custody of the minor child. When, therefore, the final judgment was entered in the superior court, and an appeal therefrom was taken to this court, jurisdiction over the subject-matter of the controversy was taken from the superior court and vested here, and this court alone had power, during the pendency of such appeal, to make orders with relation thereto.'

In the Davenport case a writ of habeas corpus applied for in this court was denied where the custody of a minor child had been awarded to the mother, and appeal had been taken from that order and a supersedeas bond filed, the court holding that the filing of the supersedeas bond did not give the parties in whom the custody had rested at the time of the commencement of the action the right to resume such custody. In passing upon the question presented this court stated: 'In such a proceeding as this we do not think the giving of a supersedeas bond has any effect whatever upon the possession, custody, and control of the minor children in question. It being presumed that the order of the trial judge was correct, and that he was actuated by a consideration for the minors' welfare, it would be against public policy to have that welfare imperiled during an appeal, in the absence of a statute clearly permitting the staying of such orders. The trial court had jurisdiction to take said children into its possession if it believed that their physical or moral welfare or other substantial interests necessitated such action. When the appeal was perfected, this court became invested with jurisdiction to make such orders as the welfare and necessities of said minors might demand. If, as contended by relator, the present situation of these...