Vosburg v. Vosburg

McFARLAND, J.

This case is before ns on a motion of respondent to dismiss three appeals of appellant—from the judgment, from an order denying a motion for a new trial, and from an order made subsequently to the judgment modifying the decree as to the care and custody of the minor children of the parties. The action is for divorce brought by the wife against the husband, and was commenced in the superior court of Los Angeles county in this state, where the parties resided. By the judgment plaintiff was granted a divorce, and it was decreed that of the three minor children of the parties, plaintiff should have the custody of the two younger and defendant the custody of the eldest, a son named Boydon. It was found by the court that before the commencement of the action defendant had taken the boy Boydon to the state of New York upon a promise to plaintiff that he would return the child in the

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fall of the year 1898, hut that he did not comply with the promise and had kept him in Hew York; and it was decreed that defendant should bring said boy back to Los Angeles and keep him within the jurisdiction of the court, and allow the plaintiff to have his society at certain stated times, and that upon defendant complying with that part of the decree he should have at stated times the society of the two children whose custody was awarded to plaintiff. Defendant made a motion for a new trial, and it having been denied he appealed from the judgment and from the order denying said motion. Afterward, plaintiff filed a petition alleging that defendant had not brought Eoydon back to California, but still kept him in Hew York, and praying for further direction as to the control of the children. Defendant appeared and contested the .■ petition, and che court, on July 7, 1900, made an order giving the custody of Eoydon to plaintiff, and again directing defendant to bring him to California. From this order defendant also appealed.

The present motion to dismiss these appeals is based on the records on appeal, and on an affidavit of plaintiff in which certain facts are stated, the most important ones being that defendant has not obeyed the order of July 7th, and has not brought the boy Eoydon to California or within the jurisdiction of said superior court; that his refusal to obey said order is without excuse; that he keeps said Eoydon in Hew York, and stays there himself for the purpose of preventing said superior court or this court on appeal from executing or compelling obedience to the judgment already given, or to any judgment which may be given with respect to the custody of said Eoydon unless it be agreeable to him; and that he is speculating on the results of his appeals, and is thus guilty of contempt of courts.- It further appears by the affidavit and the findings of the court that the appellant also took one of the younger children to Hew York at the time he took Eoydon, and that on a