Opinion
Page __
__ Cal.App.2d __ 342 P.2d 340 Betty Lou JACOBS and Gerald Albert Jacobs, by Joe L. WOLF, their Guardian ad litem, Joe L. Wolf and Anna Wolf, Petitioners, v. SUPERIOR COURT of the State of California in and for the COUNTY OF LOS ANGELES, Respondent. Victor Bernard Jacobs, Real Party in Interest. Civ. 23947. California Court of Appeals, Second District, First Division July 31, 1959Hearing Granted Sept. 22, 1959.
[342 P.2d 341] Pacht, Ross, Warne & Bernhard, and Isaac Pacht, Leo Altshuler and Harvey M. Grossman, Los Angeles, for petitioners.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel and Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondents.
Gilbert, Thompson & Kelly, Los Angeles, for real party in interest.
NOURSE, Justice pro tem.
Petitioners seek a writ of prohibition to restrain the respondent judge from proceeding with the trial of two matters each involving the custody of the minor petitioners Betty Lou Jacobs and Gerald Albert Jacobs, hereinafter called 'Betty' and 'Gerald.' They further seek a writ of mandate to compel the respondent judge to transfer said matters to another judge of the respondent court for further proceedings. The parties to this proceeding, other than the respondent judge and respondent court, are the minors Betty and Gerald who are the children of the respondent real party in interest, Victor Bernard Jacobs, hereinafter called 'Jacobs' and the petitioners Joe L. Wolf and Anna Wolf, hereinafter designated as the 'Wolfs' who are the maternal grandparents of Betty and Gerald.
The relevant facts: Gwendolyn Jacobs, the mother of Betty and Gerald and the wife of Jacobs died in March of 1947. Since her death Betty has remained in the custody of the Wolfs and Gerald has remained either in the physical custody of the Wolfs or his maternal uncle, one Frank Wolf.
On January 20, 1956, Jacobs filed a petition for writ of habeas corpus in the superior court by which he sought custody of both minors. The Wolfs filed a return to this petition and on April 20, 1956, filed a petition to be appointed guardians of the person of both minors. The habeas corpus and guardianship proceedings were consolidated for trial. Both matters came on to be heard on May 4, 1956, before the Honorable Orlando H. Rhodes and on May 7, 1956, Judge Rhodes made an order pursuant to stipulation under which the children were permitted to remain with the Wolfs. On January 31, 1958, Jacobs renewed his petition for habeas corpus and the Wolfs renewed their petition for guardianship. At that time both children had attained the age of 14 and each filed a nomination of the Wolfs as his or her coguardians. (Betty is now 17 years of age and Gerald is approaching 15 years.)
After trial and on November 25, 1958, Judge Rhodes rendered judgment in the habeas corpus proceeding awarding Jacobs [342 P.2d 342] sole custody of Gerald but permitting Jacobs to allow Gerald to reside with his maternal uncle, Frank Wolf. He awarded Jacobs and the Wolfs the joint custody of Betty but provided that at any time on or after April 1, 1959, the court might, upon the application of Jacobs, award him sole custody of Betty; Betty to remain in the physical custody of the Wolfs until an order for sole custody by Jacobs might be made. On the same date Judge Rhodes rendered judgment denying the petition of the Wolfs to be appointed guardians of the minors.
On May 29, 1959, Jacobs filed an ex parte application to be awarded sole custody of Betty. Upon the filing of this application the court entered an ex parte order and decree awarding Jacobs the sole care, custody and control of Betty and ordered the Wolfs to deliver said children into the custody of Jacobs on June 19th and further ordered that if they failed so to do that the sheriff of the county of Los Angeles take said minors into custody and produce them before the court on June 22, 1959. This order and decree were served upon the Wolfs on June 11, 1959, and on June 19, 1959, Judge Rhodes having denied the motion of the Wolfs to vacate his order of May 29th, this court issued an alternative writ of prohibition against the enforcement of said order. This alternative writ is hereinafter designated the first writ.
On June 17, 1959, petitioners Wolf filed in the respondent court a notice of motion to modify the judgment as to custody rendered in the habeas corpus matter, made on November 25, 1958, and on June 22, 1959, petitioners Wolf filed what they denominated a supplemental petition for appointment of guardianship over the persons of both Betty and Gerald. This was supported and accompanied by the nomination by the minors of the Wolfs as their guardians.
On June 23, 1959, petitioners Wolf pursuant to the provisions of section 170.6 of the Code of Civil Procedure filed their motion supported by proper affidavit of Joe L. Wolf for the disqualification of Judge Rhodes to hear and try their motion of modification of the custody order and judgment and their petition for guardianship. Judge Rhodes denied both of the motions for disqualification and set both matters for hearing before himself. Thereafter on July 6, 1959, we issued the alternative writ to him and which is first herein mentioned and which is hereinafter designated as the second writ.
It is petitioners' contention that the provisions of section 170.6 of the Code of Civil Procedure are mandatory and that Judge Rhodes had no discretion in the matter but was bound to disqualify himself and transfer both causes to another judge of the court. Respondents do not dispute the fact that the statute is mandatory but assert that both proceedings were but a continuation of the habeas corpus proceeding and the guardianship proceeding commenced in 1958 and that therefore the challenge of the judge was made too late.
If respondents are correct in their contention that these proceedings are but a continuation of the former ones, their assertion that the motion to disqualify came too late must be sustained. Under the provisions of paragraph (2) of section 170.6 it was necessary under the circumstances of this case that the challenge be made before the commencement of the hearings or at the latest before the first witness was called. Therefore, if these proceedings were but a continuation of the original proceedings, that time had long past when the challenge to Judge Rhodes was filed.
Whenever the word 'challenge' is used we refer to the motion to disqualify.
The so-called supplemental petition for appointment of guardians filed by petitioners Wolf was not in fact a supplementary petition but a new application for guardianship based upon a change of circumstances. The judgment denying the original petition for letters of guardianship was appealable and not having been appealed from, was final as to any matters [342 P.2d 343] litigated in the first proceeding, but was not res adjudicata to the extent of precluding the court from a consideration of the second petition in the light of such circumstances as might have occurred subsequent to the first judgment. In re Guardianship of Leach, 30 Cal.2d 297, at page 310, 182 P.2d 529, at page 536. It necessarily follows that the present guardianship proceedings are new and separate proceedings and not in any sense a continuation of the first proceedings and the challenge to Judge Rhodes having been timely made, he was thereby disqualified.
If we assume that the court in the original habeas corpus proceedings had the power to render a conditional judgment and to retain jurisdiction to modify its judgment, then its judgment had the same effect as the child custody provisions in a decree of divorce and the proceedings to modify it was a separate proceeding after judgment and not a mere continuation of the original hearing. Cooney v. Cooney, 25 Cal.2d 202, at pages 206-208, 153 P.2d 334, at page 336.
Respondent court asserts, however, that in a habeas corpus proceeding the court cannot retain jurisdiction to modify its judgment and then makes the anomalous claim that the ex parte order entered by the court on May 29 and by which it purports to modify its decree by granting the sole care and custody of the minors to Jacobs, forecloses a similar motion by the Wolfs based upon a change of circumstances occurring between the date of the original judgment and the order of May 29th.
The order of May 29th having been made ex parte and without notice was not and did not purport to be a final order and could not operate as res adjudicata.
We do not reach the question as to whether a court in granting a writ of habeas corpus may retain jurisdiction to modify its judgment. If it can, then the motion to modify presented a new and independent issue of fact. If it cannot, then the motion presented that fact as an independent question of law, and in either event petitioners had the right to challenge the judge and the challenge having been timely, he was disqualified.
The motion to modify could have been heard by any judge and therefore differs from a motion for new trial which must, with certain exceptions, be heard and determined by the judge before whom the case was tried.
We may further point out that in view of our holding as to the guardianship proceeding it, from the practical standpoint, can make very little difference to the parties whether Judge Rhodes is disqualified to hear the motion to modify the custody order made in the habeas corpus proceeding for in habeas corpus the judgment only determines the immediate legal right to custody and is not res adjudicata in the guardianship proceedings involving the right of permanent custody, (Guardianship of De Brath, 18 Cal.App.2d 697, at page 708, 64 P.2d 968, at page 974) and the result is that should Judge Rhodes retain jurisdiction and deny the motion to modify his original custody order, neither that order nor the original judgment would have any effect upon the judge trying the question as to permanent custody in the present guardianship proceedings.
We may further point out that the Supreme Court has clearly indicated that where the immediate welfare of a minor is not involved, a decision in a habeas corpus proceeding should not be made pending the final determination of a guardianship contest. In re Mathews, 176 Cal. 156, at page 157, 167 P. 873, at page 874.
It having been stipulated at oral argument that the proceedings to which the first alternative writ of prohibition issued by this court were directed are no longer pending and that that writ might be discharged and the peremptory writ denied. it is so ordered. It is further ordered that a peremptory writ of prohibition issue restraining the Honorable Orlando H. Rhodes from trying any issue of law or fact presented by the motion to modify the decree of the respondent court made and entered [342 P.2d 344] on the 25th of November, 1958, in proceeding No. HC 50211 in the respondent court or in the proceedings for the appointment of guardians over the persons of Betty Lou Jacobs and Gerald A. Jacobs under the petition therefor filed on the 22nd of June, 1959, in proceeding No. SMP 8162 in the respondent court and that a peremptory writ of mandate issue to the Honorable Orlando H. Rhodes commanding him to cause the transfer of both proceedings above mentioned to another judge of the respondent court for further proceedings.
WHITE, P. J., and LILLIE, J., concur.
Hearing granted; WHITE, J., not participating.