In Re Browning

THOMPSON (IRA F.), J.

The petitioner and the respondent were formerly husband and wife, but on June 20, 1928, petitioner was granted an interlocutory decree of divorce from the respondent. Subsequently the plaintiff in that action and the petitioner here asked and obtained a new trial respecting the division of the property and the custody of the minor child of the parties, Thurlough Browning. At the conclusion of this second trial, and on January 24, 1929, the superior court rendered its decision concerning the property and giving the petitioner here the custody of the .child, with the exceptions that the respondent was to have the custody of their son every Tuesday and Thursday commencing at 12 o’clock noon and ending at 8 P. M. and every alternate Saturday beginning at noon and until 8 P. M. of the following Sunday, and every alternate “legal bank holiday” from 8 o’clock in the morning until 8 o’clock in the evening and further he was given the

[505]

custody during one month of each school vacation period. Furthermore, the court appointed a physician to supervise and care for the health of the child and an oculist to prescribe and give treatment for his eyes. This judgment also confirmed the prior judgment awarding the plaintiff a divorce. On March 26, 1929, the petitioner here appealed to the Supreme Court from all of the latter judgment excepting the portion relating to the interlocutory decree of divorce. Thereafter, the defendant secured and served an order directed to the plaintiff requiring her to appear and show cause why the portion of the judgment relating to the custody of the child should not be modified. This order came on for hearing on May 23, 1929, and the court declined to hear or make any order modifying the decree in this particular “or concerning custody of minor child because of want of jurisdiction”. On March 4th a hearing on

habeas corpus

on the petition of the respondent here was had before the Superior Court of Los Angeles County, and dismissed for want of jurisdiction, the judge thereof being of the opinion that because that part of the decree respecting the custody of the child was stayed by the appeal, each parent had a right to his custody. Prior to this hearing, and on November 28, 1929, the Supreme Court rendered its opinion denying a motion to dismiss the appeal taken by the petitioner from those portions of the decree already mentioned, and also denied certain other alternative motions the particulars of which it is unnecessary to notice. On May 4, 1930, upon the petition of the respondent, the matter was heard in the juvenile court upon an order to Mrs. Browning to show cause why the child should not be declared a ward of the court. This petition was denied. On July 12th of this year the respondent went to the residence of the petitioner; found the child near the premises; took him and left the state. In response to the petition with which we now deal and a warrant for his arrest, the respondent has produced the child in this court.