Opinion
Page __
__ Cal.App.2d __ 236 P.2d 220 GANTNER v. SUPERIOR COURT IN AND FOR CITY & COUNTY OF SAN FRANCISCO. GANTNER v. GANTNER. Civ. 15007, 15097. California Court of Appeals, First District, First Division Oct. 11, 1951.Subsequent opinion 242 P.2d 328, 329.
Rehearing Denied Nov. 10, 1951.
As Modified Oct. 29, 1951.
Morris Lowenthal, Juliet Lowenthal, San Francisco, for Vallejo Gantner.
Young, Rabinowitz & Chouteau and John E. Anderton, all of San Francisco, for Superior Court, City and County of San Francisco and Neilma B. Gantner.
PETERS, Presiding Justice.
By this petition for a writ of prohibition (1 Civ. 15,007) Vallejo Gantner seeks to restrain the trial court from making any order which would permit the temporary removal of two minor children of the petitioner from this jurisdiction prior to the final determination of a proceeding brought by him to modify the custody provisions of a final decree of divorce between petitioner, and Neilma Baillieu Gantner, former wife of petitioner and mother of the two minor children. The theory of the petition is that, while the custody proceeding is pending, the trial court has no jurisdiction to make any order that would permit the children temporarily to leave this state. For reasons hereafter appearing we do not think that is or should be the law.
Mrs. Gantner has filed a petition (1 Civ. 15,097) requesting this court to issue an order permitting the minor children to leave this jurisdiction pending final determination of the custody appeal. This petition, too, should be denied.
The facts as disclosed from the record are as follows: The Gantners were married in Australia in 1941, and thereafter resided in California. Two children were born of that marriage, Vallejo Gantner, Jr., now nine years of age, and Carrillo Gantner, now aged seven. In 1948 the husband and wife separated, and the wife thereafter instituted a divorce proceeding. The husband filed a cross-complaint. The record demonstrates that the main contested issue in those actions centered upon the custody of the children. The wife sought custody of both children, and sought permission to remove them to Australia and to have them reside there permanently with her and her [236 P.2d 222] family. This was vigorously opposed by the father. Pending and during the trial, the trial court made an order that the children should not be removed by either parent more than fifty miles from San Francisco except by mutual agreement or order of the court. After a contested trial, centering upon this custody issue, the trial judge filed a memorandum opinion on July 28, 1949. In that opinion, after first reciting that Mrs. Gantner married Gantner well knowing that his business and home were in San Francisco, the court stated:
'The principal issue in the case is whether or not the children should be permitted to leave California and reside in Australia with their mother during their early school years. Plaintiff has urged upon the Court that this would be for the best interests and welfare of the children, and that plaintiff's entire family reside in Australia, and that by reason of this plaintiff could make a better home both for herself and her children.
'Defendant, on the other hand, has urged upon the Court that his children were born here in California as American citizens, that they have been raised as Americans, and by spending their early school years in California they can be instilled with true American ideals, and enjoy the security that only American citizens can enjoy.
'This Court is convinced that the mother's main interest in going to Australia is primarily for her own convenience, and not solely for the best interests and welfare of the children. These children have lived in San Francisco all their lives. To remove them from San Francisco and from their father would be an unwarranted and unwholesome influence on their future lives. The father has the right, even in cases of divorce, to have some future supervision and control over his own children. The Court does not feel that it can deny these children the right to be raised and educated as American citizens in America, nor does it feel it should take them completely away from their father.
'While it is true that the plaintiff has offered to bring the children back to California during their school vacation each year, this would not even begin to solve the problem. Both children are boys, and as such they are entitled to their father's influence and supervision. The Court feels that it would be for the best interests and welfare of the children for them to be in their mother's physical custody, but to remain in California, to be raised in our American way of life. The Australian family of plaintiff can well afford to make numerous visits to California so as to give the children the benefit of their comfort and society, if they so desire.'
Thereafter, on August 9, 1949, a decree was entered, by which the wife was granted an interlocutory decree of divorce. Joint legal custody of the children was granted to both parents, and their physical custody was granted to the mother with the right of visitation granted to the father. This decree expressly provided that the 'children reside, remain and be educated in the State of California subject to the further order of this court.' The fifty-mile order was vacated, but it was expressly provided that neither parent should 'take said children outside the boundaries of the State of California without the consent of said parties and without the approval of this court.' The final decree, entered August 15, 1950, embodies these same provisions as to custody and residence of the children, and contains a provision that both parents are 'enjoined and restrained from taking said children, or either of them, outside the boundaries of the State of California, subject to further order of this court.'
On March 1, 1951, the wife served and filed a notice of motion seeking an order from the trial court permitting her to take the children to Australia for a three-month vacation trip. The husband not only opposed this motion, but also filed a motion seeking an order modifying that portion of the final decree of divorce giving physical custody of the children to the mother to provide that he should be awarded their physical custody.
Thus, at this stage of the proceedings, there were two separate, distinct and independent matters pending before the trial court--a request by the mother for permission to take the children on a vacation trip to Australia for a period not to exceed three [236 P.2d 223] months, and a request by the father for a modification of the custody order so as to change physical custody from the mother to the father.
Both proceedings were heard at the same time A five-day hotly contested trial was had before the same judge that had tried the divorce proceedings. After trial, but while these two matters were still under submission, this petition for prohibition was filed on June 5, 1951. By this writ the petitioner seeks to prohibit the trial court from entering any order in the proceeding involving the wife's application to take the children to Australia for a vacation until it not only decides the custody proceeding, but until that order in the custody proceeding becomes final after an appeal. This court issued a temporary stay order prohibiting any determination of the vacation application until further order of this court, in order to give this court time to study the problem, and thereafter, on June 18, 1951, an alternative writ of prohibition was issued. In the meantime, and on June 6, 1951, the trial court rendered its order in the custody proceeding. In that order the court found that the mother is a fit and proper person to have physical custody of the children; that it is for the best interests of the children that they remain in her custody; that there has been no change in circumstances making it proper, necessary, or for the best interests of the children, to change the order relating to their physical custody, and that it would not be for the children's best interests for their father to have their physical custody or control. Thus, by this order, the court unequivocally denied the application of the father for a modification of the custody order contained in the final decree of divorce. In addition to deciding this issue, the trial court, in this same order, referred to the other proceeding pending before it in reference to the motion of the wife to be permitted to take the children to Australia for a vacation, and in connection therewith found: 'That it is for the best interests and welfare of said minor children * * * that they be permitted to visit their mother's family in Australia during the school vacation period in the year 1951, and for that purpose they should be permitted to travel with their mother to Australia, upon posting a cash bond in an amount and conditioned as ordered by this Court.' The court also found 'That it is for the best interests and welfare of said minor children * * * that they be permitted to travel with their mother to places without the jurisdiction of this Court, on vacation visits, providing this Court first grants its approval for any such travel.'
Based on these findings, the court entered its order as follows:
(1) The motion of the father for a change of physical custody and control is denied, the mother to have the exclusive physical custody and control of the minor children, subject to the right of visitation on the part of the father on every Sunday from the breakfast time of the children to their bed time; provided further that the court will permit the father to have the children during Christmas holidays and vacation periods as may be hereafter ordered by the court.
(2) 'No order is made at this time relative to permitting plaintiff to travel on vacation visits with said minor children to places without the jurisdiction of this Court for the reason that this Court is under prohibition from making any such order, but when, and only when, such restraint is lifted, this Court will make an appropriate order. Pending such further order of this Court, plaintiff is prohibited from taking or removing said minor children from the State of California.'
Thus the trial court, by this order, carefully complied with the order of this court prohibiting it from entering any order in the vacation proceeding, but, in fairness to all concerned, indicated how it would decide that issue when the restraint was removed.
The petitioner promptly appealed from this order of June 6, 1951, on the very same day that it was filed. It is his theory that, until the appeal from the order refusing to disturb custody is finally decided, the trial court lacks jurisdiction to make any [236 P.2d 224] order in the proceedings instituted by the mother to be permitted to take the children out of the state for a vacation.
If this theory is sound, petitioner has discovered a legal procedure that will, for all practical purposes, prohibit a trial court from entering an order permitting the temporary removal of the children from the state for at least two years, or longer, even though the best interests of the children will be served by the entry of such an order. Thus, according to this theory, in the present case the trial court lacks jurisdiction to make any order permitting the children to leave this state until the custody proceeding is finally determined on appeal. In that appeal the request for a reporter's and clerk's transcript was filed on June 15, 1951, and to date neither transcript has been filed in this court. It is obvious that, by the time briefs are filed, the case will not reach our calendar until near the end of this year or the first of next year. Then this court has ninety days within which to write an opinion, and, after our opinion is filed, another sixty days must expire before our decision becomes final. Thus, at the earliest, the appeal in the custody case will not become final until near the middle of next year, about a year after that order was made by the trial court. But that is not all. When that decision becomes final, assuming an affirmance, then the trial court, according to petitioner, may enter its order in the vacation proceeding. But petitioner may not appeal from that order, stay its operation by the appeal or by supersedeas, and thus delay its effectiveness while that appeal is pending, presumptively another period of a year. By that time nearly two years will have elapsed. Perhaps petitioner could then file, before the vacation order becomes final, another petition for a change of physical custody on the ground of changed conditions, and contend that the vacation order could not become final until the custody proceeding was finally determined. This could be continued ad infinitum, so that no final order in the vacation proceeding could ever be entered.
The possible results of such a holding are apparent. We can well imagine a situation where a parent, with or without legal custody, wants to remove a child to some other state for an operation necessary to save the life of the child, and which can only be performed in that other state or country. But if the other parent files a custody proceeding, then, according to petitioner's argument, the trial court lacks power to enter any order permitting the child to be taken out of the state while the custody proceeding is pending.
Such a rule of law would completely disregard the fundamental and underlying principle applicable to such cases--namely, not what is best for the parents, but what is best for the child. Any rule of law that would not only countenance but compel the courts to disregard the best interests of a child because the parents are fighting over his custody, just cannot be sound.
Petitioner places his main reliance to establish his contentions upon the case of Foster v. Superior Court, 4 Cal.2d 125, 47 P.2d 701, contending that that case not only suggests such a conclusion, but compels it. Of course, if that case establishes the claimed for contention, the holding is binding on this intermediate court, but an examination of that case demonstrates that it does not go to the extent claimed by petitioner.
The Foster case involved solely questions of custody. No question of permitting the temporary removal of a child from this state was involved. There, the South Dakota court had, in 1933, in a divorce proceeding, divided the custody of a minor child between the two spouses, the wife to have the custody from June 1st to September 1st, and the husband to have the child the remainder of the year. The wife thereafter established her residence in California, while the husband retained his residence in South Dakota. In 1934 the wife, during the three-month period she was entitled to custody, secured a South Dakota court order permitting her to bring the child to California. She then instituted a proceeding in California while she had lawful custody of the child to secure exclusive custody, claiming changed conditions warranted a change in the custody provisions. The trial judge, after a contested hearing, [236 P.2d 225] filed a memorandum opinion in which he indicated that he intended to deny the request to change the existing custody order, and intended to enforce the provisions of the South Dakota decree without change. No such order was then entered, but the trial court did make an order granting temporary custody of the child to the mother pending entry of his order in the custody proceeding, and for ten days thereafter. About a week later, and also before entry of any final order in the custody proceeding, the trial judge modified his earlier order and granted temporary custody of the child to the father subject to the condition that the child be kept in California until ten days after entry of the order in the custody proceeding. The father then moved to vacate all existing orders purporting to give temporary custody to the mother. The mother, who still had physical custody of the child, then sought a writ of prohibition to restrain the trial court from making any order affecting the custody of the child while her appeal from the custody order refusing to modify it was pending. It was a conceded fact that, unless prohibition issued, the trial court intended to give the father temporary and full custody of the child with authority to remove the child out of the state and beyond the effective reach of process of the California courts. In other words, the court, before it entered its order refusing to change the custody order, wanted to get the child into the hands of the father, thus changing its physical custody, so that when the custody order was entered the father would have custody. Thus, if the mother appealed, the status quo, when the order was entered, would be that the father had custody and could remove the child to South Dakota pending the appeal. The Supreme Court very properly held that such legal maneuvers were not permissible. At page 127 of 4 Cal.2d, at page 702 of 47 P.2d the court stated: 'It seems clear that an order which so disturbs the custody of the child as to permit him to be taken beyond the operation of process of the courts of California, pending final determination of the cause involving his custody, would be an act in excess of jurisdiction.'
Based on this reasoning the Supreme Court issued a writ of prohibition restraining the trial court '* * * from making or ordering the execution of any judgment or decree which shall have the effect of placing said infant, Whitney Foster, beyond the operation of process of the court prior to the final determination of the action * * * which involves his custody.' 4 Cal.2d at page 128, 47 P.2d at page 702.
After the issuance of this writ the trial court entered its order adopting the provisions of the South Dakota decree on the issue of custody and refusing to disturb that foreign decree. That order specifically provided: 'Nothing herein contained shall have the effect of placing, or shall place, Whitney Foster beyond the operation of the process of the courts of the State of California prior to the final determination of this action.'
The mother appealed and filed a petition for a writ of supersedeas. The propriety of issuing such a writ was passed upon in Foster v. Foster, 5 Cal.2d 669, 55 P.2d 1175. The writ was denied, the Supreme Court holding that there was no need for it because the appeal from the custody order acted as an automatic stay and precluded the trial court from interfering with custody as it existed at the time the appeal was taken. Because of the prior Foster decision the mother had the actual custody of the child when the order refusing to modify the provisions of the South Dakota decree was entered. She was a resident of California. Thus, although the order appealed from awarded the custody to the father, since the appeal stayed that order, the mother retained custody pending the appeal.
The Foster cases did not establish any new law. They are in accord with the many cases holding that, during the pendency of an appeal involving custody, the trial court has no power to make any order affecting custody. Ritter v. Superior Court, 99 Cal.App. 121, 278 P. 240; Browning v. Browning, 208 Cal. 518, 282 P. 503; In re Browning, 108 Cal.App. 503, 291 P. 650; see cases collected and discussed 9 Cal.Jur. p. 799, § 141; 5 Cal.Jur.Supp. p. 340, § 141.
[236 P.2d 226] The petitioner interprets the Foster and other cases as prohibiting the trial court from making any order, pending the appeal from the custody order, that would permit the children to leave California. The cases stand for no such broad proposition. They stand for the proposition that, while an appeal from a custody order is pending, the trial court is without jurisdiction to make any order that would change the status of the custody of the child pending the appeal. The appeal maintains the status quo, so far as custody is concerned, as it existed at the time that the custody order was entered. The Foster and other cases involved only questions of custody. As applied to the existing problem, the rule of these cases would prohibit the trial court from making any order that would change the custody status of the children as such status existed on June 6, 1951. The rule of those cases would prohibit the trial court, pending the appeal, from making any order that would change the physical custody from the mother to the father, or that would change the provisions of the original custody order so as to permit the mother to take the children to Australia and establish their permanent residence in that country.
But that is not the purpose of the prohibition sought by petitioner. He seeks to prevent the trial court, pending the appeal in the custody proceeding, from making any order that would permit the mother to remove the children from the state temporarily for vacation purposes. The vacation proceeding is separate, distinct and independent from the custody proceeding. Neither the rule of the Foster cases, nor any other rule of law, operates to prevent the trial court from entering any order it finds to be in the best interests of the children that does not affect their custody. It is quite clear that the vacation order in no way affects the custody of the children. It could be entered regardless of which garent has legal custody. Such an order could be entered so as to permit the parent that does not have physical or legal custody to temporarily take the children out of the state if their best interests required such temporary removal. The appeal in the custody case in no way affects this vacation proceeding.
Petitioner expresses great fear that if the mother is permitted to take the children to Australia for a vacation, she will keep them there and not return to California, so that if he secures a reversal of the custody order it will be unenforceable by the California courts. That is a possibility, of course It is a factor which the trial court undoubtedly will consider before it enters any vacation order. It has seen these parents. It is in a position to judge whether the mother is a person who would deliberately violate the orders of the California court so as to place herself in a position of being prosecuted for a contempt if she should ever return to this state. Moreover, the trial court, as a condition of granting the vacation order, can exact a bond from the mother to assure compliance with this order. It has already indicated that such a bond will be imposed as a condition of the order. Undoubtedly, that bond will be fixed in such an amount that will make it reasonably probable that there will be compliance with the order to return the children at the close of the vacation period. Moreover, if the wife should deliberately flaunt the orders of the California court, we have no reasonable doubt but that the Australian courts would enforce the provisions of the California judgment.
In the instant case when, as, and if the vacation order is entered, the father has the legal right to appeal. Either that appeal will have the legal effect of staying the vacation order, or this court, upon application to it for a writ of supersedeas, could, in its discretion, stay that order. That is the only protection that the father should have, or needs. He does not need, and is not entitled to, two separate stays as he claims.
Respondent urges that, since the vacation period has now elapsed, the whole problem is now moot. We are not inclinded to treat the matter as being moot. Obviously, the problem presented is one that constantly will recur between these parents. The interests of justice require that the power of the trial court be determined. This we have done. Moreover, the order of June 6, [236 P.2d 227] 1951, definitely indicates that the trial court intends to make a ruling that will not only affect the vacation period of 1951, but future vacations as well.
Neilma Gantner has filed a petition requesting this court to make an order permitting the minor children to leave the jurisdiction for vacation purposes pending the final determination of the appeal in the custody proceeding. This petition must be denied, first, because we have held that the appeal in the custody proceeding in no way affects the power of the trial court to enter the order desired, and second, because it is a trial and not an appellate function to make such an order.
The petition for a peremptory writ of prohibition is denied; the application that this court make an order temporarily permitting the children to leave this state pending appeal is denied.
BRAY and FRED B. WOOD, JJ., concur.