In Re Moulton

VAN DYKE, J.

This is a proceeding in habeas corpus. Petitioner has been confined in the Merced County J ail under order of the superior court of that county which had adjudged him guilty of contempt in failing to obey an order of that court. The facts are these: Petitioner and Harriet Moulton are husband and wife. They have three children, ages 7, 5 and 2 years. On August 19, 1950, Harriet sued petitioner, Williard Moulton, for separate maintenance. She asked custody of the children pendente lite. The complaint was filed and on the same day the court issued an order, directed to petitioner as defendant to show cause why the plaintiff should not be given such custody. On the return day of the order, August 23d, a hearing was had. It appeared that on Friday, August 18th, at 11 p. m., petitioner had taken the children to Winnemueea, Nevada, where by prearrangement he was met by his sister and brother. He gave the children into their custody and they took them to Jackson, Wyoming, and to the home of the paternal grandparents. These grandparents had had the children in their care for about six weeks and until

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July 29th when petitioner and his wife had brought them back to their California home.

Although petitioner'had left with the children before the order to show cause was issued, he had been told on Friday before he left that his wife had seen an attorney concerning her proposed action. He told her he would not tell her what he was going to do, but testified he was considering taking the children to Wyoming and determined to do so sometime during the afternoon. During the hearing the court announced its intention of giving the children to the mother pending the trial of the issues and of making appropriate orders for their support. Thereupon the court asked how many days would reasonably be required to effect a return of the children and counsel for the petitioner stated he thought that about 10 days would suffice. The court thereupon orally announced its order that the children be returned on or before August 31st and that their custody’ was awarded to the mother. On September 1st, the children not having been returned, petitioner was ordered to show cause on September 5th why he should not be adjudged in contempt for disobedience of the order to return them. On September 5th the hearing was had on the order to show cause. Petitioner admitted that he had not returned the children, that they were with the grandparents in Wyoming and that he had not gone to Wyoming to get them. He testified that on the Sunday following the 23d of August, when the court had ordered them returned, he called his father long distance, told him of the court order and had been told that his father had consulted an attorney in Jackson and been informed that the Wyoming laws did not recognize any other state as having jurisdiction over children in Wyoming. The father advised petitioner to see an attorney. Further, petitioner testified that he saw his attorney and then called his father again and was told that a court proceeding was pending in the District Court of Teton County in Wyoming and that he could not have the children. He said he asked his father to meet him in Salt Lake City with the children, but was told his father wanted to talk to an attorney and would call him back. This petitioner’s father did and told him that the attorney in Jackson would not allow the children out of the state. Petitioner testified he had not authorized any guardianship of the children in Wyoming, although while he had been there he had talked to an attorney and “rather anticipated’’ his wife’s movement. He said he had neither signed nor authorized any petition to make the children wards