In Re Chapman

FOURT, J.

This is an application for relief under habeas corpus from a commitment of the petitioner on a judgment finding her guilty of contempt of court.

The charges arose out of a divorce action. Petitioner herein filed a complaint in divorce against Marvin A. Chapman on or about July 27, 1955. An order to show cause was issued and at a hearing thereon the husband was ordered restrained from annoying, harassing or molesting the wife in any manner. The husband made no appearance at the divorce trial on September 28, 1955, and the court granted an interlocutory decree of divorce to the wife wherein, among other things, the court awarded the four minor children of the parties to the wife, ordered the husband to pay support and maintenance for the children, and the wife’s attorney’s fees. The husband was restrained substantially as under the previous order. On October 3, 1955, an interlocutory judgment of divorce was signed and filed on October 4, 1955.

The husband, on or about February 9, 1956, executed an affidavit for an order to show cause

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modification of the interlocutory judgment of divorce. His affidavit was filed on February 14, 1956, and the court made an order on the same day directing the wife to appear and show cause why the interlocutory judgment of divorce should not be modified in respect to the custody of the children. The matter of the custody was thereafter, pursuant to a stipulation, referred to a court investigator and the cause was continued for hearing. On March 28, 1956, the date to which the matter was ultimately continued, the attorneys for the parties stipulated in writing that “the above entitled cause may be tried by Francis A. Cochran, an attorney, and member of the bar of this state in accordance with the constitutional provisions. ’ ’ The selection of Cochran as judge pro tempore was approved and ordered by the judge of Department 8 of the superior court. The cause was then transferred to Department 8b for hearing. Testimony was taken and the judge pro tempore ordered that the interlocutory decree of divorce be modified so as to provide that the custody of the minor children be awarded to the husband, the wife to have the right to reasonable visitations. The wife was ordered to deliver the four minor children to the husband on or before April 5, 1956.

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