White v. White , 71 Cal. App. 2d 390 ( 1945 )

THE COURT.

Without the slightest pretense of contrition or conciliation for her flouting the order of the court plaintiff, still ensconced in her Pennsylvania home with her child by her side, demands through her counsel a rehearing to the end that it might be adjudged by this court that she had been guilty of only a technical contempt of court and hence her deprivation of the monthly payments was unjust. The situation may have been better understood if we had set forth even more fully the history of appellant’s litigious efforts to effect her purposes.

Following the events narrated in the second paragraph of the opinion, appellant accompanied by Nancy departed from California. On September 15, 1944, defendant filed his affidavit setting forth that he had appealed from the order of May 23, 1944, but that plaintiff had removed Nancy from California to the home of her new husband at Cheney, Pennsylvania. Pursuant to the order to show cause issued upon such affidavit hearing was had thereon at the same time with plaintiff’s motion for an order requiring defendant to pay sums for attorney’s fees and costs. After granting her motion the court made the order quoted in the third paragraph of the opinion, which is the order appealed from. The affidavit of defendant before the court at the time contains the averment that pending the appeal of defendant from the order of May 23, 1944, and without further order of the court and without the knowledge or consent of defendant, plaintiff took Nancy out of California. Just prior to the time of adjudging plaintiff guilty of contempt the parties stipulated (1) that plaintiff and minor child are out of California; (2) that the record discloses that plaintiff had no authority to remove the child; (3) that the child should not have been removed until the end of the current school term.

While it is true that there is no evidence that Nancy was removed from this state prior to the close of the school term, yet plaintiff knew that defendant had taken appeal from the order of May 23rd. The language of section 949, Code of Civil Procedure, could not be more explicit in its provision that “. . . the perfecting of an appeal stays proceedings in the court below upon the . . . order appealed from.” Contending that the order of September 15, 1944, was void plaintiff sought by a review to have that order annulled. In declining to grant such an order we then held that because of the appeal from the order of May 23 the parties remained as they were under the order of July 31, 1940. (Olcott v. Superior Court, 68 Cal.App.2d 603 [157 P.2d 36].) Ignoring that decision plaintiff carried on after a fashion most pleasing to herself. She neither sought to make amends to defendant nor attempted to do any act that might minimize the contempt which had evidently been a factor in causing the court to impose the order appealed from.

This court decided the Olcott case on March 29, 1945. Although that was a determination of the validity of the order now on appeal, without deigning in any respect to comply therewith plaintiff proceeded with the present appeal as though the only question involved was whether a father is under any and all conditions solely responsible for the support of his child. It is conceded that as between the parents under ordinary circumstances, where the parents both have separate estates, or the father only has his separate estate, or there is no fund except the community estate or earnings, and a separation occurs, the father will be obliged to make provision for the minor children. But this is not an ordinary case. The child was born in Los Angeles County and had been reared there from birth. All of her relatives including all grandparents reside in the same community. When the question of custody first arose the parties stipulated that the court might include in its order that defendant visit Nancy on all Wednesdays, take her to his own home every other Friday to remain until Sunday and might have her at Thanksgiving and for the summer vacations, so long as he made “some plan for some member of his family or friends to assist him in caring for the child,” and that she should not be taken out of Southern California. Such evidence, stipulation and order indicate that there was some good reason for keeping Nancy near her father. Plaintiff having chosen to disregard the rights of the father by keeping his child some 3,000 miles away from him, no such situation is presented as requires the court to force defendant to support the child while she remains out of California. With her mother she is housed in the Olcott home in Pennsylvania. Nothing indicates that plaintiff is without funds or that withholding the $30 monthly payments will do more than deprive her of luxuries which she might enjoy but for her duty to her child.

That the trial court did not abuse its discretion in making the order is clear.

The contention that the adjudication of contempt became functus officio upon the affirmance by this court of the order of May 23 is without merit. The various orders affecting the conduct of these parties have no relevancy except to disclose the necessity of imposing some hardship upon plaintiff for the free rein she takes and for her evident disregard of defendant’s rights which the court below has attempted to protect. The order before us might in different words have been made even if there had been no former order of contempt. Its primary purpose was to deny plaintiff the benefit of defendant’s assistance so long as she keeps Nancy out of this state. That she had exhibited a recalcitrance before the order of September 15 is merefy some of the evidence in support of the order. The authorities cited (Fremont v. Merced Mining Co. (1858), 9 Cal. 18; Canavan v. Canavan, 18 N.M. 640 [139 P. 154, Ann.Cas. 1915D 1007, 51 L.R.A.N.S. 972]; State v. Neveau, 236 Wis. 414 [295 N.W. 718]; Salvage Process Corp. v. Acme Tank Process Corp., 86 F.2d 727 (C. C.A. 2); Republic Electric Co. v. General Electric Co., 30 F.2d 99, 100) are not pertinent. Plaintiff is not here on an order convicting her of violating an injunction. It is merely an order relieving defendant from the necessity of making the monthly payments.

Rehearing denied.

Appellant’s petition for a hearing by the Supreme Court was denied December 20,1945. Carter, J., voted for a hearing.