State v. Superior Court of Yakima County

• Decision Date: 30 July 1919
• Docket Number: 15422.
• Court: Washington Supreme Court
• Parties: STATE ex rel. WILKERSON v. SUPERIOR COURT OF YAKIMA COUNTY et al.

183 P. 63

108 Wash. 15

STATE ex rel. WILKERSON v. SUPERIOR COURT OF YAKIMA COUNTY et al.

No. 15422.

Supreme Court of Washington

July 30, 1919

Department 1.

Application by the State, on the relation of Emma Wilkerson, to prohibit the Superior Court of Yakima County and others from entering an order in a habeas corpus proceeding. Writ granted.

Frank J. Allen, of North Yakima, for plaintiff.

T. J Casey, of Seattle, for defendants.

MACKINTOSH J.

A decree of divorce was entered on April 12, 1915, by the terms of which there was awarded to the relator the custody of a minor daughter and to the father the custody of two minor boys. On March 19, 1919, the relator filed a petition in the divorce action, asking to have the decree modified so as to award her the custody of all three children, who at the time of the filing of the petition she had in her actual care and control. A restraining order was made prohibiting the father from interfering with this care and custody pending the determination of the petition, and on June 13, 1919, the petition was heard and the decree was modified so as to award to the relator the custody of the older boy and the girl and to award to the husband the custody of the other boy. The relator, being dissatisfied with this modification, gave notice of appeal, which was perfected by furnishing an appeal bond. Thereafter the father sued out a writ of habeas corpus, directed to the relator for the purpose of securing the possession of the boy, whose custody had been awarded to him by the original decree and reawarded by the decree as modified. Upon the return of the writ the relator filed a plea in abatement upon the ground that an appeal had been perfected in the divorce action. This plea was denied by the trial judge, the defendant in this action, and thereupon this application was made here to prohibit the defendant from entering an order in the habeas corpus proceeding transferring the possession of the boy to his father.

This court has early decided, and consistently followed that decision, that upon an appeal being taken from an order modifying a divorce decree, the fact of such appeal may be set up by plea in abatement in defense to a subsequent action by either of the parties seeking to have the custody of the children changed during the pendency of such appeal; that the Supreme Court, after the appeal has been taken, possesses the sole power to make orders with reference to the custody of the children; and that all applications for such change must be addressed to this court. Irving v Irving, 26 Wash. 122, 66 P. 123; Gust v. Gust, 71 Wash. 75, 127 P. 566.

In State ex rel. Davenport v. Poindexter, 45 Wash. 37 87 P. 1069, a writ of habeas corpus applied for in the Supreme 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, since the welfare of the child was the primary consideration.

'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 minors is so unsuitable as to menace their physical or moral welfare or other substantial interests, the question of an appropriate change

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