Sewell v. Sewell ( 1947 )

I find myself unable to agree with the conclusion of the majority, and uncertain whether I can go as far as Judge Simpson goes in the broad grounds of his dissent. He discusses cases dealing generally with the jurisdiction of the supreme court after an appeal has been perfected. I prefer not to deal with that general question, but to confine my research and conclusions on this occasion to the narrow question presented as to the rights and remedies of parties affected by an order of the superior court relative to the custody of children after an appeal has been perfected therefrom.

It will be agreed that, for the reasons stated in State exrel. Davenport v. Poindexter, 45 Wash. 37, 87 P. 1069, and quoted in the majority opinion, an order with respect to the custody of minor children cannot be superseded. The same reasoning, however, would seem to require that the trial judge's order with reference to custody be carried out pending the appeal, in the absence of a showing that there has been a change of condition since the entry of the interlocutory order.

The problem then confronting us is: How are the orders of the trial judge relative to custody to be enforced pending appeal?

We will discuss the cases chronologically.

The first case dealing with this problem was Irving v.Irving, 26 Wash. 122, 66 P. 123. A divorce decree entered therein on December 17, 1898, awarded the custody of the sixteen-month-old child of the parties to Mr. Irving. On January 10, 1900, an order was entered modifying the decree and awarding the custody of the child to the foster mother of Mrs. Irving. By January 20th, Mr. Irving had perfected his appeal to the supreme court from this modification of the custody decree.

On March 12, 1900, Mr. Irving filed a petition in the superior court alleging that the foster mother of Mrs. Irving was an unfit person to have the child, and alleging his own fitness and ability to care for the child. To this petition, Mrs. Irving and her foster mother filed a plea in abatement, setting out that there was an appeal pending from the order of January 10th, and that the questions presented and involved upon the appeal were the same questions presented by the petition then before the court. Mr. Irving demurred to the plea in abatement. The demurrer was sustained, and the superior court then heard the matter upon its merits and awarded the custody of the child to Mr. Irving. From this order Mrs. Irving and her foster mother appealed.

This court held that the plea in abatement was good and that the superior court had no jurisdiction to enter the order last referred to, awarding the custody of the child to Mr. Irving. From this case comes the rule, which has been adhered to by this court from September 13, 1901, to the present date, that:

"After an appeal, and while the case is pending in the appellate court, that court possesses the sole power to make orders with reference to the custody and disposition of the child during the pendency of the appeal, and, when changed conditions require a change in the order for such custody, the application therefor should be addressed to that court." Irving v. Irving,supra.

The Irving case has never been overruled; it is clearly decisive of the fact that respondent in the present case is in the proper forum with her request for the custody of her child. The majority opinion does not attempt to distinguish it, and, in fact, does not refer to it.

The rule of the Irving case is recognized as being the law of this jurisdiction in State ex rel. Davenport v. Poindexter,45 Wash. 37, 87 P. 1069, which is authority only for the proposition that an order with respect to the custody of minor children cannot be superseded.

It is to be noted that the Davenport case was not a custody proceeding arising out of a divorce action. The superior court of Spokane county had entered a judgment and decree setting aside certain adoption proceedings and awarding the custody and control of two minor children to their natural mother. During the hearing, the superior court had directed that the children be placed in the custody of the matron of the juvenile department of that court. To forestall delivery of the children to their mother, the adoptive parents immediately perfected an appeal and gave a supersedeas bond, and then moved the superior court for redelivery of the children to them on the ground that they had filed a supersedeas bond. The motion was denied. The adoptive parents then sought a writ of habeas corpus from this court, making the same contention. The writ was denied for the reason heretofore indicated, but obiter the court said:

"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 could doubtless be considered by this court upon a proper showing. Irving v.Irving, 26 Wash. 122, 66 P. 123. But such a matter is not before us at this time."

The only case which even questions the wisdom or propriety of the rule in the Irving case is State ex rel. Clark v. SuperiorCourt, 90 Wash. 80, 155 P. 398. In the Clark case, the child of the parties to a divorce action was in the possession of a sister of the father. The superior court ordered that the parents of the mother be given possession of the child for six months, beginning January 15, 1916, and that, at the end of six months, it be delivered to the sister of the father for six months, and the custody was to alternate each six months. The father appealed and gave a supersedeas bond. On January 15, 1916, the sister of the father refused to surrender possession of the child to the parents of the mother. The mother then made application for anorder directing the father to comply with that part of the decreewhich directed that the child should be placed in the custody ofher parents. The trial judge took the position that he had no jurisdiction to hear, consider, or determine such a motion. The mother then applied to this court for a writ of mandamus to compel the trial court to execute its decree. This court, speaking somewhat discursively, said:

"In the case at bar, an appeal is pending. The child is in the possession of the sister of defendant, who has been found to be worthy. Whether the respondent had jurisdiction to execute his decree by ordering the child turned over to the parents of the relator is of little consequence; for granting, as the relator admits, that the jurisdiction to make any order for the protection and welfare of the child is in this court, and having jurisdiction in virtue of the petition of the relator, we shall, in the exercise of that jurisdiction, treat the refusal of the respondent as a finding that the welfare of the child will not be jeopardized by allowing it to remain where it is pending the appeal. The custody of the child being given to the parents of relator, and to the sister of defendant for equal and alternating periods, neither party can claim that the particular time in which they shall have such custody is of legal consequence. It does not go to the welfare of the child, and that is the only thing this court or the superior court will inquire into.

"This holding makes it unnecessary for us to inquire whether the judgment of the court was self-executing in so far as it relates to the child, but it may be understood that that question is not foreclosed by our holding; for it may be that an appellant in a divorce proceeding might supersede the judgment, subject, however, to any further order that might be made by the trial judge pending a final hearing, for this is not a court of first instance. This court tries a case upon the record taken in the court below. In all actions arising under the marriage and divorce statutes, there is much room to argue that the immediate welfare and comfort of children, as well as the protection and conservation of the property, is still within the keeping of the superior judge. He is in position to call witnesses, to hear testimony, and make orders; his discretion and judgment being, of course, subject to review by the appellate court.

"For the first reason assigned, therefore, we hold — the character and capacity of the sister of the defendant being in no way challenged — that the welfare of the child does not demand any change in its place of keeping, pending appeal, and the application for the writ is denied."

I gather from the opinion that: (a) The superior court is probably in a better position to determine these matters than is the supreme court; (b) but, since it is conceded by the parties that the jurisdiction to make any order for the protection and welfare of the child is in the supreme court, (c) we will refuse to act unless it can be shown that the welfare of the child demands it.

In State ex rel. Wilkerson v. Superior Court, 108 Wash. 15,183 P. 63, a divorce decree dated April 12, 1915, awarded the custody of a girl to the mother, and two boys to the father. On June 13, 1919, the decree was modified by giving to the mother the custody of the girl and one of the boys, and to the father the other boy. The mother, at the time of filing the petition for modification, had all the children in her actual care and custody.

The mother appealed. The father sued out a writ of habeascorpus to secure the custody of the boy awarded to him by theoriginal decree and reawarded to him by the modified decree. Upon the return of the writ, the mother filed a plea in abatement, upon the ground that an appeal had been perfected from the custody order. This plea was denied by the trial court, and then a writ of prohibition was requested to prohibit the trial judge from entering an order in the habeas corpus proceeding transferring the possession of the boy to his father. We granted the writ of prohibition, treating the application for the writ as an original application in this court relating to the custody of the child, and holding that, since the record disclosed no condition inimical to the welfare of the children, "all parties interested should remain in the position in which they were when the appeal was taken."

The court here removed any uncertainty which the Clark case may have left, saying:

"The law is, as we understand it, that, pending an appeal insuch cases, the lower court has not jurisdiction to modify oralter the decree as it may relate to the custody of children, butthat such application must be made to the supreme court, and that the giving ob a supersedeas bond does not suspend the operation of the decree in actions of this character, as it relates to the custody of the child. The Clark case, above, having been an application for a writ of mandamus to compel the trial court to enforce its decree, and this court having treated the application as an original application in this court relating to the custody of the child, we may here treat this application for a writ of prohibition in the same manner and, as in theClark case, determine from the record that there is no serious question concerning the worthiness of the mother or father, the trial court having seen fit to award children to each of them, and, pending the hearing, allowed the relator to have all the children in her care and keeping. In the Clark case, the relator was attempting to enforce the decree by applying for an order compelling its observance, while in this case the same result is sought to be obtained by means of a writ of habeas corpus while the appeal is pending. In neithercase could the trial court take any further steps in regard tothe custody or control of the child, no matter what the form ofthe proceeding in which such steps were sought to be taken. . . .The trial court, not having power to change the decree during theappeal, the application for the writ should have been presentedto this court. This court has exclusive jurisdiction and was theforum in which any proceeding should be instituted which affectedthe question we are here discussing. Considering this as an application here, what we have said in regard to the fitness of the parties would be determinative of the matter, and the record disclosing no condition inimicable to the welfare of the children, all parties interested should remain in the position in which they were when the appeal was taken." (Italics ours.)State ex rel. Wilkerson v. Superior Court, supra.

While the court continually refers to change of custody, it is clear that the question before it in both the Clark andWilkerson cases was the enforcement of decrees already entered, and that reference is made in each case to a change of physical rather than legal custody. Here again we hold, in effect, that the trial court cannot enforce its custody decree pending an appeal, and the supreme court will not do so in the absence of a showing that the well-being of the child demands it.

The majority opinion relies on the case of Helard v. Helard,22 Wash. 2d 950, 155 P.2d 499, as authority for the proposition that the respondent here may secure a writ of assistance from the trial court. I will not quote from it, because it is set out in full in Judge Simpson's dissent. As it appears in the reports, it is authority for nothing except that we will use the procedural step of dismissing an appeal if anorder issued by this court directing appellant to return children to the jurisdiction of the court from which the appeal is taken, is not complied with.

There is nothing in the case, as reported, that departs from our previous holdings that this court has exclusive jurisdiction in matters affecting the welfare of children after an appeal is taken. We did, for the first time, take affirmative action to change the status quo, but on the showing that the mother had taken the children out of the state surreptitiously and in defiance of the trial court's interlocutory order. The expression "surreptitiously and in defiance of the trial court's order," I take from the majority opinion in the present case.

We acted, I take it, because we thought that the best interests of the children required it, not merely because a party was acting in defiance of an interlocutory order. In both the Clark and the Wilkerson cases, mothers were refusing to comply with the terms of interlocutory orders relative to the custody of children. It is true that the record does not stamp their action as "defiant," but it seems to me that, whether done courteously, graciously, firmly, or defiantly, the refusal to comply with an order of the court directing the transfer of custody of children is in fact a defiance of that order.

We said in the Irving, Davenport, Clark, and Wilkerson cases that we had exclusive jurisdiction in matters pertaining to the welfare of children after an appeal had been perfected. We said in the Clark and Wilkerson cases that we would not enforce a custody decree in the absence of a showing that the welfare of the children demanded it. The only step forward in theHelard case was that we showed that we would take affirmative action if the welfare of the children demanded it.

The majority relies on facts and procedure in the Helard case dehors our printed reports. I assume, because it is not so stated, that the interlocutory decree in the Helard case gave the children to the father. He asked the trial court for a writ of assistance to gain possession of the children. The appellant sought a writ of prohibition to prevent the trial court from issuing a writ of assistance; we refused the writ of prohibition; and the writ of assistance was issued by the trial court. It was, however, ineffective because the children had been removed from the state. We then made the order referred to in the Helard case as reported, directing that the children be returned to the jurisdiction of the trial court on penalty of a dismissal of the appeal.

It is conceded that, when we denied the writ of prohibition, we established a factual but not a legal precedent for the procedure suggested by the majority in the case now before us. We thereby recognized a jurisdiction in the trial court to enforce its interlocutory decree with reference to the custody of children after an appeal had been perfected. In doing so, we departed from the principle that this court has exclusive jurisdiction in such cases and, in effect, overruled the four cases I have referred to, not only without mentioning them, but without even an opinion.

We have heard much about overruling cases sub silentio. I would say that our unreported action in the Helard case, now the basis for the majority opinion, is an overruling sub-subsilentio. The action of the majority in this case raises it only to the dignity of being sub silentio.

There remains for consideration only the very recent case ofPike v. Pike, 24 Wash. 2d 735, 167 P.2d 401. It is entirely consistent with and reaffirms our reported cases to the effect that the supreme court has exclusive jurisdiction over the matter of custody of children after an appeal is perfected.

In the Pike case, the trial court awarded the custody of both children, nine and seven years of age, to the father. The mother perfected an appeal to this court, and refused to surrender the children and concealed their whereabouts. The father, following the procedure suggested by the reported Helard case, sought an order from this court dismissing the appeal. We issued an order directing the mother to show cause why she should not deliver the children to the father and, in the event the children were not returned as directed, to show cause why her appeal should not be dismissed.

The appellant mother made a showing, by affidavit, that the children were well cared for, in a good environment, and receiving proper instruction and school training, but she refused to disclose the present abode of herself and the children. She further alleged that the father was a dangerous person to have the custody of the children, and that he had told her that he would remove them from the state of Washington.

Deeming her showing insufficient, we entered an order directing that, unless she complied with the interlocutory decree within ten days, her appeal would be dismissed. On her failure to deliver the children to the father as directed, the appeal was dismissed. In the course of the opinion, we pointed out specifically the question involved:

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

We quoted the Irving and Davenport cases at length, and also cited the Clark and Wilkerson cases, and stated as our conclusion that, at the time the appeal was perfected, the trial court lost jurisdiction to make any disposition of the matter presented.

The six cases here discussed and analyzed are all that deal with this specific question, and, as reported, there is no conflict on the question of the exclusive jurisdiction of this court. The majority opinion in the present case overrules them all. When the majority says,

"In Pike v. Pike, 24 Wash. 2d 735, 167 P.2d 401, this court approved the procedure followed in Helard v. Helard,22 Wash. 2d 950, 155 P.2d 499,"

it seems to me that it goes too far. We did approve the procedure, as "reported," of dismissing the appeal when the trial court's custody decree was not complied with and our order seeking to enforce it was ignored, but it cannot be said or implied that in the Pike case we approved the unreported action in the Helard case of permitting the trial court to proceed to enforce its custody decree by a writ of assistance while an appeal was pending. The Pike case not only does not approve that procedure, but its philosophy, its rationale, and its express terms are irreconcilably opposed to it.

To summarize our holdings relative to what will and can be done relative to custody decrees after an appeal has been perfected:

1. The Irving case holds that the trial court has no jurisdiction to change the custody of children;

2. The Davenport case holds that a custody decree cannot be superseded;

3. The Clark case holds that, assuming that the supreme court has exclusive jurisdiction to enforce the terms of a custodydecree, it will not do so in the absence of a showing that thestatus quo is inimical to the well-being of the children involved;

4. The Wilkerson case holds flatly that the trial courtcannot enforce the terms of its custody decree, and that the supreme court will not do so in the absence of a showing that thestatus quo is inimical to the well-being of the children involved;

5. The Helard case, as reported, holds that the supreme court will punish the refusal to obey its order requiring children to be returned to the jurisdiction of the court, by the dismissal of an appeal;

6. The Pike case holds that the trial court cannot enforce the terms of its custody decree, but that the supreme court can and, if the circumstances justify it, will insist that a custody decree be complied with by an appellant, or the appeal will be dismissed.

In the Clark and Wilkerson cases, this court refused to enforce the trial courts' custody decrees pending the appeals, deciding, on the basis of the showings made, that there was nothing inimical to the well-being of the child or children involved in the status quo. As stated at the beginning of this dissent, such holdings are not consistent with the reasons given for the refusal to supersede the custody decree in theDavenport case:

"Where minor children are involved a much different consideration is presented than obtains with reference to mere property rights. The welfare of the children is a matter of prime importance and public concern, and must be the subject of careful consideration at all stages of any proceeding wherein their possession, custody or control is involved. 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 judgewas correct, and that he was actuated by a consideration for theminors' welfare, it would be against public policy to have thatwelfare imperiled during an appeal, in the absence of a statute clearly permitting the staying of such orders." (Italics ours.)State ex rel. Davenport v. Poindexter, 45 Wash. 37,87 P. 1069.

It is my belief that we should not depart from the trail that we have blazed in this type of case. (If the position taken by Judge Simpson in his dissent be sound, we have no right to make any such departure, even if we want to.) It seems to me that, instead of abandoning that trail, we should extend it further by saying in this case that we will always enforce, by appropriate remedies, a trial court's custody decree pending the determination of an appeal therefrom, in the absence of a strong showing that such enforcement will be inimical to the best interests of the child or children involved. Such a showing has not been made in this case, and we should proceed as we did in the Pike case.