1 Reported in 184 P.2d 76. SIMPSON, HILL, and MILLARD, JJ., dissent. On April 4, 1947, this court entered an order directed to the appellant herein to show cause why he should not be ordered forthwith to deliver the minor child of the parties to the respondent, to whom custody had been awarded in an interlocutory order from which appellant has appealed, or be held to be in contempt of court and have his appeal dismissed.
The appellant admitted that the interlocutory order granted custody of the child to the respondent. He showed cause on the merits as to why the custody of the child should not be disturbed during the pendency of the appeal. He did this upon the theory that such an interlocutory order can be superseded, and in addition contended that, even if it could not be superseded, nevertheless this court would exercise its discretion on the merits as to the question of custody pending appeal.
[1] We do not agree with the contention that such an order can be superseded on appeal.
In State ex rel. Davenport v. Poindexter, 45 Wash. 37,87 P. 1069, this court laid down the rule that an interlocutory *Page 396 order with respect to the custody of minor children could not be superseded upon appeal or the order changed by the trial court, pending an appeal. The court therein said:
"In such a proceeding as this, we do not think the giving of a supersedeas bond has any effect whatever upon the possession, custody and control of the minor children in question. It being presumed that the order of the trial judge was correct, and that he was actuated by a consideration for the minor's welfare, it would be against public policy to have that welfare imperiled during an appeal, in the absence of a statute clearly permitting the staying of such orders."
The respondent has the right to have the custody of the child as provided in the court's interlocutory order pending the appeal, and a defense on the merits will not lie to an appropriate procedure to enforce the order.
We issued the order to show cause herein in order to afford us an opportunity of indicating an appropriate procedure to be followed in such a situation.
[2] After an appeal is taken, the trial court loses jurisdiction over the subject matter of the appeal and cannot change its judgment or orders entered prior thereto, or do anything that affects the subject matter of the appeal. SeeAetna Ins. Co. v. Thompson, 34 Wash. 610, 76 P. 105; Kawabev. Continental Life Ins. Co., 97 Wash. 257, 166 P. 617; VanHorne v. Van Horne, 194 Wash. 606, 78 P.2d 1082.
[3] It does not follow, however, that, because of that, we will either undertake the enforcement of the interlocutory order of the trial court pending the appeal or take jurisdiction to pass upon the merits as to the custody of children during the pendency of the appeal and issue and enforce our own orders pertinent thereto.
It is true the trial court has lost jurisdiction over the subject matter of the appeal and may not change any order theretofore entered that comes up to this court on the appeal. However, the provisional remedies are not suspended where an appealable order is not or cannot be *Page 397 superseded. The process for enforcing the interlocutory order pending an appeal is in the nature of a provisional remedy and may issue as a matter of course. Since they do not inhere in the appeal or affect it, the trial court does not lose the jurisdiction incident to their issuance.
In Pike v. Pike, 24 Wash. 2d 735, 167 P.2d 401, this court approved the procedure followed in Helard v. Helard, 22 Wash. 2d 950, 155 P.2d 499. In the Helard case, the appellant surreptitiously took the children out of the state in defiance of the trial court's interlocutory order. The respondent brought a contempt proceeding before the trial court, and asked for a writ of assistance, to the end that the sheriff might deliver the children to him. The appellant applied to this court (State ex rel. Helard v. Superior Court, Cause No. 29316), seeking a writ of prohibition, to prohibit the trial court from issuing such a writ of assistance upon the ground that the trial court had lost jurisdiction after appeal to issue such a writ. This court denied the application, whereupon the trial court issued the writ of assistance. Thereafter, the sheriff made a "not found" return, the children having been spirited away where they could not be found.
[4] The respondent herein may seek a writ of assistance from the trial court or press contempt proceedings, or both, and the trial court has jurisdiction to entertain them. Because remedies are available to the respondent in the trial court, we deny her application for an order of this court directing the appellant to turn over the child to the respondent. Of course, in the absence of such an order, the appellant is not now in contempt of this court. The motion to dismiss the appellant's appeal because he is in contempt of court must therefore be denied.
[5] This court has and will dismiss appeals in divorce actions where it is made to appear that the appellant will not abide the appeal and will make impossible the execution of the decree. Such dismissals have been preceded by orders of this court directing the appellant to produce the child or children by a day certain under pain of having *Page 398 the appeal dismissed. See Pike v. Pike, supra, and Helard v.Helard, supra.
The instant case is not similar to the Pike case. The appellant is under the mistaken notion that the interlocutory order is superseded. However, he has given no indication that he will not abide the result of the appeal.
The show cause order is dismissed.
STEINERT, ROBINSON, JEFFERS, and ABEL, JJ., concur.