In re Orlando

FOX, J. By an interlocutory decree of divorce in August, 1947, the custody of the minor, Craig T. Smith, was awarded to his mother, the petitioner herein, with the provision that the father should have custody of the child during the summer vacation period of each year. As a result of a hearing on an order to show cause, the court, on August 26, 1953, modified the previous custody order and awarded Craig’s custody to his father, Thomas H. Smith, with the provision, so far as here material, that petitioner have the child during July and August of each year, Easter vacation, alternate Christmas vacations, and at other times from Friday at 8 p. m. until Sunday at 6 p. m. At the time this latter order was made the father had the boy with him pursuant to the previous order, which gave him custody during the summer vacation. On the next day, August 27th, petitioner’s then attorney wrote respondent’s attorney the following letter: “My clients have requested that you advise Mr. Smith, when he brings the boy over this weekend to bring his clothes that were sent with him for the vacation period, as the mother desires to keep all of said clothes she purchased for the boy at her house so that he can use it during the period he is visiting there.”

Commencing with September and continuing through the middle of January, 1954, the parties complied with the order of August 26th. Since January, 1954, however, respondent has refused to permit petitioner to enjoy the visitation privileges of the later order because of a dispute as to who is entitled to custody pending the determination of petitioner’s appeal, notice of which was filed on October 6th. This proceeding is for that purpose and respondent has indicated his willingness to abide by such determination.

It should be noted that no claim is here made that either party is unfit to have the custody of this child, or that his [596]welfare or best interests will be imperiled by remaining in the custody of either parent pending the determination of the appeal.

Petitioner takes the position that upon perfecting her appeal the order of August 26th, 1953, was stayed and the earlier order remained in effect, under which she was entitled to custody after the summer vacation. Respondent, however, contends that petitioner submitted to the modifying order and it was executed prior to the time petitioner perfected her appeal and that such appeal, therefore, did not have the effect of undoing what the parties had done pursuant to such order. Respondent’s position must be sustained.