Olcott v. Superior Court

Petitioner filed an application for a writ of review in the District Court of Appeal, Second District, seeking the annulment of an order of the Superior Court of Los Angeles County whereby she had been adjudged guilty of contempt of court in removing her minor daughter from the State of California pending an appeal from a court order permitting the child’s removal. Her application was denied by Division One of this court without opinion and thereafter, with the permission of the court her application was withdrawn. Thereupon she filed an application in the Supreme Court seeking the same relief and that court on January 15, 1945, issued a writ commanding the superior court to certify and return to this court a transcript of its proceedings in the matter sought to be reviewed and commanding the superior court to refrain pending action upon the writ from punishing petitioner for her alleged contempt in removing the child from California.

On the complaint of petitioner she was granted an interlocutory decree of divorce from McDonald White on November 27,1939. A property settlement had been made between petitioner and White in which it is provided that the care and custody of the daughter of the parties, Nancy White, a child then about five years of age, should be given to petitioner with cer

After her remarriage petitioner obtained an order to show cause for permission to remove the minor child from the State of California and on May 23, 1944, the court made the following order: “In the matter of the order to show cause in re removal of minor child from the State, which was heard May 10, 1944, and taken under submission by the court, it is ordered that the motion of the plaintiff for permission to remove the child of the parties, Nancy White, from the State of California be and it is hereby granted upon the following conditions: (1) that said child shall not be removed until the completion of the present school term; (2) that defendant shall at all times be advised of the address where said child is domiciled; and (3) that plaintiff upon request shall cooperate in making reasonable arrangements for defendant to visit said child.” The child’s father promptly appealed from this order and pending the appeal the petitioner removed the child to her new home in Pennsylvania.

At the request of the child’s father the superior court issued

There is no merit in petitioner’s attack on the jurisdiction of the court to make the order adjudging her guilty of contempt for the reason that she was absent from the state and was not personally served with process. In making the order that service should be made upon the attorney who was her attorney of record in the divorce proceedings the court followed the approved procedure. Petitioner having permanently established her residence outside the State of California service upon her attorney of record was authorized and constituted a valid service. (Foley v. Foley, 120 Cal. 33 [ 52 P. 122 , 65 Am.St.Rep. 147 ]; Shibley v. Superior Court, 202 Cal. 738 [ 262 P. 332 ].)

Before the entry of the order of May 23, 1944, giving permission to petitioner to remove the child from California, both parties were, under the provisions of the court order of July 31, 1940, obligated to refrain from taking the child from Southern California. It is provided in section 949 of the Code of Civil Procedure that an appeal from such an order as that made on May 23, 1944, “stays proceedings in the court below upon the judgment or order appealed from.” (See Ex parte Queirolo, 119 Cal. 635 [ 51 P. 956 ]; Foster v. Foster, 5 Cal.2d 669 [ 55 P.2d 1175 ].) Thereafter, the parties gained no rights or privileges from the making of the

The writ is discharged.

Moore, P. J., and MeComb, J., concurred.

Petitioner’s application for a rehearing was denied April 28, 1945, and petitioner’s application for a hearing by the Supreme Court was denied May 24, 1945. Carter, J., and Spence, J., voted for a hearing.