Knoob v. Knoob

WASTE, J.

This is a motion to dismiss an appeal. In an action for divorce pending in the city and county of San Francisco, the defendant wife was awarded an interlocutory decree of divorce, and was given the custody of the minor child of the parties, a little girl then of the age of twelve months, subject to the right of the father to see and visit with the -child at all reasonable times, -and upon the further condition that the defendant should not take the

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child out of the state of California for a period exceeding two weeks at any one time without a written order of the trial court. Subsequently the court modified the decree and the custody of the child was awarded to the plaintiff, subject to the right of the mother to see and visit the child at all reasonable times, and subject to the condition that neither of the parties should take the child out of the state of California without a written order of the trial court. Since the modification of the decree, the plaintiff has exhausted all means to procure the presence of the defendant and the minor child within the jurisdiction of the California courts. He' obtained writs of

habeas corpus,

orders to show cause, and orders directing the arrest of the defendant for contempt of court. The efforts of the plaintiff were strenuously resisted by defendant through counsel who at all times appeared for her, although she. herself remained outside the jurisdiction of the court. The defendant appealed from the order of modification, and when the matter came on for hearing in this court the respondent moved to dismiss the appeal upon the ground that the appellant was a fugitive from justice and in contempt of court, and for that reason not entitled to invoke the aid of the court.

It was shown that the appellant in violation of the terms of the modified decree has taken and kept the child out of the state of California without the consent of the respondent, and without permission of the trial court. The child at the time the case was called here was out of the state but in the custody of the appellant, who it was shown by 'affidavit has remarried and is living in the republic of Guatemala. One continuance was granted in order that the appellant and the child might be produced in the jurisdiction of the court. When the case was next called, counsel for appellant admitted in open court that he did not know the whereabouts of his client.