Opinion
Page __
__ Cal.App.2d __ 236 P.2d 227 LERNER v. SUPERIOR COURT IN AND FOR SAN MATEO COUNTY. Civ. 15069. California Court of Appeals, First District, First Division Oct. 11, 1951.Subsequent opinion 242 P.2d 321.
[236 P.2d 228] Marvin E. Lewis and Goldstein, Lewis & Barceloux, all of San Francisco, for petitioner.
Cosgriff, Carr, McClellan & Ingersoll, Burlingame, Frank V. Kington, Redwood City (Luther M. Carr, Burlingame, of counsel), for respondent.
PETERS, Presiding Justice.
Petition for a writ of prohibition. This proceeding involves substantially similar legal problems to those involved in Gantner v. Superior Court, Cal.App., 236 P.2d 220.
By this proceeding Betty Lerner seeks to restrain the trial court from making any order which would permit the temporary removal of one of the two minor children of petitioner and Clarence Lerner from this state prior to the final determination of an appeal involving the custody of such child now pending in this court.
Betty and Clarence Lerner were married and had two children, Linda and Gerard. By the provisions of an interlocutory and a final decree of divorce (the latter entered May 10, 1948), the custody of the children was awarded the mother. On May 23, 1950, the trial court upon stipulation and consent of all concerned, ordered that the boy, Gerard, be enrolled in the Menlo School for Boys as a full-time student, and that the girl, Linda, be enrolled in a girls' school as a day student, staying at nights with her mother. No appeal was taken from that order, and it long since has become final. The children were thereupon duly enrolled in the respective schools as directed by that order. On March 9, 1951, the trial court, on the petition of the father, made an order modifying the provisions of the interlocutory and final decrees relating to the custody of Gerard by providing that the boy's custody was changed from the mother to the father 'subject to the condition that the boy be kept enrolled in school as at present.' The mother, the petitioner herein, promptly appealed from that order changing custody of Gerard. The notice to prepare the transcripts on that appeal was given on May 8, 1951, but to date such transcripts have not as yet been filed with this court. It will be noted that, although this appeal is apparently from all of the provisions of the order of March 9, 1951, it is ineffectual insofar as it relates to keeping Gerard in the Menlo school because that portion of the order merely continued in effect the 1950 order, which was entered by stipulation and consent. It is elementary, of course, that no appeal will lie from a judgment or order entered by consent. (See cases collected 2 Cal.Jur. p. 225, § 62; 1 Cal.Jur.Supp. p. 306, § 62.)
On July 16, 1951, the father served and filed a notice of motion that on July 23, 1951, he would move the Superior Court for an order authorizing the removal of Gerard from the Menlo school in California to the Oxford Academy of Individual Education in New Jersey. It is claimed that this motion was filed on the advice of the authorities of the Menlo school who, it is asserted, do not believe that their school possesses the facilities to meet the psychological needs of this boy, and on the advice of other educators and doctors who, it is claimed, have advised the father that the New Jersey school is the only establishment in the United States that can adequately fulfill the educational and mental needs of this boy. The mother opposes the granting of this motion. After a partial hearing on that motion she applied for this writ of prohibition, and an alternative writ was issued.
It is the theory of this petition that, prior to the order of March 9, 1951, the petitioner, the mother, had legal custody of the boy; that her appeal from that order operated as a stay of that order, and, until that appeal is finally decided, it operated to divest the trial court of jurisdiction from making any order that would permit the child temporarily to be removed to New Jersey for educational purposes.
There can be no doubt but that an appeal from the custody order deprives the court from making any order affecting the [236 P.2d 229] custody of the child while the appeal is pending. Foster v. Superior Court, 4 Cal.2d 125, 47 P.2d 701; Foster v. Foster, 5 Cal.2d 669, 55 P.2d 1175; Ritter v. Superior Court, 99 Cal.App. 121, 278 P. 240; Browning v. Browning, 208 Cal. 518, 282 P. 503; In re Browning, 108 Cal.App. 503, 291 P. 650; see cases collected and discussed in 9 Cal.Jur. p. 799, § 141; 5 Cal.Jur.Supp. p. 340, § 141. This principle of law has been fully discussed in the Gantner case, supra. But that rule of law is not necessarily decisive of the problem here presented. Here the mother has legal custody, subject to the child being kept full time in the Menlo school. The trial court has awarded custody to the father. The mother has appealed. That appeal stays the modifying order and the mother is entitled to custody of the boy pending final determination of that appeal. The trial court is without jurisdiction to make any order that would change custody pending the final determination of the appeal. But, as was pointed out in the Gantner case, the motion to remove the child from the state temporarily on the ground that the best interests of the child require it, does not affect custody. It is separate and distinct from custody. When, as, and if such an order in entered the wife may appeal from that order. Either that appeal would automatically stay that order, or the wife may apply to the proper court for supersedeas, which in the discretion of the appellate court, could issue if the facts warrant it. But petitioner is not entitled to two stays--one while the appeal from the custody order is pending, and one while the subsequent appeal from the order permitting the temporary removal of the child to New Jersey, if such an order is entered, is pending.
It must be remembered that the trial court will enter its order permitting the child to go to New Jersey only if it first finds that it will be to the best interests of this child that he be permitted to enroll in the New Jersey school. The desires of the parents are not to be considered except as they may relate to the best interests of the child. If it should appear, as the father claims it will appear, that this boy needs special care and attention and that the New Jersey school is best equipped to give that care and attention, the desire of the mother or father to keep the child here should not be controlling. Such an order permitting the child to go to school outside the state in no way affects custody. The legal control and custody of the child will remain with the mother pending the final determination of her appeal in the custody order. Both the mother and father are residents of California and intend to continue their residence here. The child's legal residence is to remain here. The order here questioned will, at most, merely permit the temporary removal of the child to New Jersey for educational and health purposes. Ever since the order of May 23, 1950, entered with the consent of both parents, the mother's legal right to custody has been limited by the educational provisions of that order. The requested order, if granted, will not affect her right to custody as thus limited. It will merely change the place where the education is to be secured.
Any other rule of law than the one herein announced might have disastrous effects on the child. If petitioner is correct, she could, by appealing from the custody order and then appealing from the order permitting the child to go to New Jersey, and then perhaps instituting a new custody proceeding, prohibit, for several years or more, the making of any effective order permitting the child to go to New Jersey. Thus, assuming that this child right now needs the care and attention that can only be given in New Jersey, the mother could prevent the child from receiving that necessary care and attention for at least several years, and just at a time when this child may need that care and attention. Any claimed rule of law that would thus defeat the best interests of the child is and must be unsound.
The petitioner has filed a motion in this court for an allowance of attorney's fees and costs incurred in filing this petition for a writ of prohibition. In this [236 P.2d 230] proceeding brought against the Superior Court to restrain the claimed erroneous exercise of judicial power we do not think that this court possesses the power to make an award against either the state or Mr. Lerner, as the real party in interest, for costs and attorney's fees. McCarthy v. Superior Court, 65 Cal.App.2d 42, 149 P.2d 871. If we possess such power, this, in our opinion, is not a proper case in which to exercise it.
The alternative writ is discharged and the petition for a peremptory writ of prohibition is denied. The motion for attorney's fees and costs is denied.
BRAY and FRED B. WOOD, JJ., concur.