Ritter v. Superior Court

California Court of Appeal

Ritter v. Superior Court

278 P. 240, 99 Cal. App. 121, 1929 Cal. App. LEXIS 367

CourtCalifornia Court of Appeal

DecidedMay 23, 1929

DocketDocket No. 6526.

StatusPublished

Cited by5 cases

This text of 278 P. 240 (Ritter v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ritter v. Superior Court, 278 P. 240, 99 Cal. App. 121, 1929 Cal. App. LEXIS 367 (Cal. Ct. App. 1929).

Pincite

Opinion

YORK, J.

An affidavit was filed setting forth certain matters alleged to have occurred since the twentieth day of June, 1928, and since entry of an interlocutory decree of divorce, in which interlocutory decree the custody of three minor children had been fixed and determined. It appears that the trial court issued an order directing the plaintiff and petitioner herein to show cause why the custody of said minors should not be changed, and that that hearing is now pending in the Superior Court and is the matter toward which the writ is directed.

The trial court made an order as to the custody of the children first on May 23, 1928, and thereafter, on the thirtieth day of June, 1928, an interlocutory decree of divorce was entered in said action, which decree in terms recited the same conditions as to the custody of the children as the *122 order of May 23, 1928. That thereafter the defendant filed notice of appeal from said interlocutory decree and from the whole thereof, on September 19, 1928.

The contention between the parties upon this, hearing is as to whether or not said notice of appeal stays the hands of the trial court in said action, the respondent court contending that there is no appeal from the order made and entered on the twenty-third day of May, 1928, and that that order is still in full force and effect and subject to modification by the trial court.

We are of the opinion that by reason of the fact that the interlocutory decree contained an order as to the care, custody and control of the children, and as the appeal from that judgment has been perfected, during the pendency of the appeal the trial court may not act in said matter. If there be any change of conditions, which for the welfare of the children requires a change of custody pending appeal, such change of custody (while the appeal is pending) will have to be made through either the juvenile court or by some other and separate proceeding other than the divorce action between the parties. (Vosburg v. Vosburg, 137 Cal. 493 [70 Pac. 473]; Ex parte Queirolo, 119 Cal. 635 [51 Pac. 956]): “ . . . the effect of the appeal in instances of this character is to remove the subject matter of the adjudication from the jurisdiction of the court below pending the appeal, and suspend the power of that court to enforce its order or judgment until the appeal is determined. ’ ’

It is therefore ordered that the alternative writ be made peremptory. ■

Conrey, P. J., and Houser, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

YORK, J.

An affidavit was filed setting forth certain matters alleged to have occurred since the twentieth day of June, 1928, and since entry of an interlocutory decree of divorce, in which interlocutory decree the custody of three minor children had been fixed and determined. It appears that the trial court issued an order directing the plaintiff and petitioner herein to show cause why the custody of said minors should not be changed, and that that hearing is now pending in the Superior Court and is the matter toward which the writ is directed.

The trial court made an order as to the custody of the children first on May 23, 1928, and thereafter, on the thirtieth day of June, 1928, an interlocutory decree of divorce was entered in said action, which decree in terms recited the same conditions as to the custody of the children as the *122 order of May 23, 1928. That thereafter the defendant filed notice of appeal from said interlocutory decree and from the whole thereof, on September 19, 1928.

The contention between the parties upon this, hearing is as to whether or not said notice of appeal stays the hands of the trial court in said action, the respondent court contending that there is no appeal from the order made and entered on the twenty-third day of May, 1928, and that that order is still in full force and effect and subject to modification by the trial court.

We are of the opinion that by reason of the fact that the interlocutory decree contained an order as to the care, custody and control of the children, and as the appeal from that judgment has been perfected, during the pendency of the appeal the trial court may not act in said matter. If there be any change of conditions, which for the welfare of the children requires a change of custody pending appeal, such change of custody (while the appeal is pending) will have to be made through either the juvenile court or by some other and separate proceeding other than the divorce action between the parties. (Vosburg v. Vosburg, 137 Cal. 493 [70 Pac. 473]; Ex parte Queirolo, 119 Cal. 635 [51 Pac. 956]): “ . . . the effect of the appeal in instances of this character is to remove the subject matter of the adjudication from the jurisdiction of the court below pending the appeal, and suspend the power of that court to enforce its order or judgment until the appeal is determined. ’ ’

It is therefore ordered that the alternative writ be made peremptory. ■

Conrey, P. J., and Houser, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

278 P. 240, 99 Cal. App. 121, 1929 Cal. App. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ritter-v-superior-court-calctapp-1929.

Opinion

Related

Cite This Page — Counsel Stack