In re Frost

VAN DYKE, P. J. Petitioner, Robert M. Frost, filed his petition with this court asking a writ of habeas corpus on the ground that he was being unlawfully imprisoned by the sheriff of Butte County, California. The writ was issued and petitioner placed on bail pending determination of the issues presented by the return to the writ.

On September 17,1952, in an action brought in the Superior Court for Butte County an interlocutory decree of divorce was granted to Frances Eloise Frost, wife of petitioner, and by the terms of that decree the custody of the minor child of the parties was awarded to Frances. On January 15, 1954, on application of petitioner, the court modified the interlocutory decree by giving custody of the minor to petitioner, which order for change of custody became final. On the 15th day of June, 1955, on application of Frances, the court made an order which, as petitioner herein contends, modified the existing custody order, by again awarding custody of the minor to [620]Frances. The court ordered petitioner to deliver the child to her. On June 21, 1955, petitioner appealed. Thereafter petitioner was ordered to show cause why he should not be adjudged in contempt of court for refusing to deliver the child to Frances. He took the position that his appeal had statutorily stayed the execution of the order appealed from and that the court was, therefore, without jurisdiction to enforce that order or to find him in contempt for having disobeyed it. He was adjudged guilty of contempt and imprisoned until such time as he should purge himself of contempt by delivering the minor child pursuant to the order from which he had taken his appeal.

An appeal from an order modifying the custody provisions of a divorce decree suspends the power of the trial court to enforce such order. The perfected appeal automatically constitutes a stay of proceedings and precludes the trial court from interfering with custody as it existed at the time of appeal. (In re Barr, 39 Cal.2d 25 [243 P.2d 787].) The foregoing rules of law are not contested by respondent nor is it argued that the contempt order imprisoning petitioner until he shall have obeyed the order of the court appealed from does not constitute a direct attempt by the trial court to enforce that order pending appeal.

The sole contention of respondent is that by reason of the form of the order it was and is nonappealable and may, therefore, be appropriately enforced by imprisoning petitioner until he shall have obeyed it. This contention cannot be sustained. The order appealed from is based on an order to show cause why the existing custody should not be modified. The court found expressly that the minor needed the supervision and care of her mother, that the best interests of the child “would be best subserved by changing the custody of said child to the said defendant.” It was then found that the residence of the mother was not adequate in size to permanently house her, her present husband and the minor, and, therefore, the court stated that “the change of custody of said minor child should not be made permanent until a proper showing is made by the defendant that she had procured sufficient and adequate housing facilities.” It was further found that the mother’s “present residence is sufficient for temporary custody of said minor child only.” Having made these express findings, the court “ordered, adjudged and decreed that the interlocutory decree as modified, wherein custody of the minor child of the parties hereto, namely Leslie