In re Nelson , 132 Mont. 252 ( 1957 )

MR. JUSTICE CASTLES:

Original proceeding. The petitioner has petitioned this court for a writ of habeas corpus and a writ of review. On the 21st day of October, 1957, the petitioner was found guilty of contempt of the district court by the Honorable Victor H. Fall, presiding in the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin, and punished by confinement in the county jail for five days.

It is thought that the question presented is of sufficient importance and interest to the bar to warrant this opinion.

The facts leading up to confinement of the petitioner were allleged as follows:

On the 1st day of June, 1953, a decree of divorce was granted by the judge of the district court of the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin to Ruth Nelson Mauer, the then wife of petitioner. Custody of the minor children of the parties, namely, Darleen Nelson and David Nelson, was by virtue of said decree awarded to the mother, Ruth Nelson Mauer.

On the 25th day of August, 1954, in the same court, the original divorce decree was modified to provide that the custody of David Nelson and Darleen Nelson be awarded to the petitioner herein during the school year and to Ruth Nelson Mauer during the vacations.

On the 9th day of October, 1957, in the same court, the Honorable Victor H. Fall, district judge presiding, the Honorable W. W. Lessley, district judge, having disqualified himself, the aforementioned order was further modified to provide that the custody of the minor child, Darleen, aged fifteen years, be awarded to the mother, Ruth Nelson Mauer, during the school year and that the petitioner father pay to the mother $40 per month while the child was in her custody, and the father was by said order directed to surrender the minor child, Darleen Nelson, unto the mother, Ruth Nelson Mauer, on the 13th day of October, 1957.

On the 11th? day of October, 1957, the father filed and served notice of appeal from the order modifying the decree and filed and served an undertaking as required by law to secure the costs of appeal in the sum of $300, and to secure the obligation for support of the minor child in the sum of $40 per month.

On the 16th day of October, 1957, an order to show cause was served upon the father ordering him to appear in open court on the 21st day of October, 1957, to show cause why he should not be punished for contempt of the order of the court dated October 9,' 1957, awarding custody of Darleen Nelson to the mother during the school months, and for his failure to deliver the minor child to the mother pursuant to the modification.

At the hearing on the order to show cause, the father, by his attorneys, moved to quash the order to show cause upon the grounds and for the reason that an appeal had been perfected from the order modifying the divorce decree of October 9, 1957, and that the appeal had the effect of staying all proceedings on the order of October 9, 1957, until the appeal could be determined by the supreme court.

The motion to quash was denied, and the petitioner was found guilty of contempt and ordered confined in the county jail for a period of five days.

It is clear from the petition that the petitioner had refused to comply with the court’s order. No application was made to the court below for a stay of proceedings prior to appeal, nor to this court for a stay at any time.

The only question presented upon this petition for a writ of habeas corpus is whether or not an appeal from an order modifying a divorce decree has the effect of staying all proceedings until the appeal can be determined by the supreme court, or whether an application for a stay of proceedings must be made and granted before such proceedings are stayed.

In State ex rel. Gates v. District Court, 69 Mont. 322, 221 Pac. 543, this court held that an appeal from an order, modifying a divorce decree is an appeal under R.C.M. 1947, section 93-8003, subd. 2, as being an appeal “from any special order made after final judgment.”

In Demos v. Doepker, 115 Mont. 183, 141 Pac. (2d) 372, it was held that the general provision of section 93-8011, R.C.M. 1947, (that on perfection of an appeal all further proceedings in the district court on the judgment or order appealed from are stayed) does not apply on appeal from an order appointing a receiver, the matter of stays pending appeals from orders relating to receiverships being specifically provided for by subdivision 2 of section 93-8003, R.C.M. 1947, declaring that the supreme court or a judge thereof may grant a stay therein on such conditions as may seem proper. It is observed that the question presented on this petition for writ of habeas corpus is from an order modifying a divorce decree, which as previously stated, comes under the same subdivision 2 of section 93-8003, R.C.M. 1947.

This court’s reasoning in Demos v. Doepker, supra, on an appeal from an order in the same subdivision of the section involved applies herein.

Because of what was said in the Demos v. Doepker case, supra, we hold that an appeal from an order modifying a divorce decree does not stay the enforcement of the order. Such orders can only be stayed by application for an order staying the proceedings under section 93-8003, subd. 2, supra.

The petition on its face showing that the confinement was legal, the petition for a writ of habeas corpus is hereby denied. Since no reason was advanced for the issuance of a writ of review, it likewise is denied.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICES ANGSTMAN, concur.