dissenting. On March 25, 1982, the above named appellants filed a motion in this court asking that a judgment of the Probate Court of Jackson County be stayed pending the decision of the merits of the appeal in this matter.
On March 31, 1982, a hearing was had on that motion and the matter was argued by the attorneys on both sides.
Today this court has granted the appellants’ motion. I do not agree to this action of the court because (1) the motion should first be passed upon by the trial court, (2) the action of this court can have an unhappy practical effect, and (3) the action of this court will compound the problem that exists in this matter.
This case involves the adoption and custody of an eleven-month-old baby boy. The child’s natural mother executed a consent to adoption on the day the child was born and the appellants have had custody of the child since that day. Appellants filed a petition for adoption and obtained a temporary decree on August 31, 1981, but on October 28, 1981, the natural mother filed a motion to withdraw her consent. On March 8, 1982, the probate court heard the mother’s petition to withdraw consent and held that it was not knowingly executed. The court’s order also awarded immediate custody and control of the child to its mother. This order was filed of record on March 8, 1982, and on the same day a motion was filed by the appellants asking that the probate court stay the enforcement of its order pending the decision of the merits of the case on appeal.
No order has been filed in this court reflecting a decision by the probate court on the motion for stay filed in that court. It is alleged by the appellants that the probate court “summarily” denied the application for stay. At the hearing before this court the attorney for the natural mother filed a response in which it was alleged that the probate court has set a hearing for next Monday, April 5, 1982, to determine whether or not appellants are in civil contempt of that court and to consider their application to that court for a stay of its judgment.
In my view, this court should today enter an order directing the Probate Court of Jackson County to have a hearing on the appellants’ application to that court for a stay of its judgment and in order to eliminate any doubt of the authority of that court to have the hearing, our order should specifically invest that court with such authority. Our order should also direct the probate court to set out its findings of fact and conclusions of law in its order and should direct the probate court to defer any contempt hearing for a period of 15 days after that court enters its order on the application for stay so that either party may have an opportunity to ask us to review the court’s order on the stay before any contempt hearing.
If this procedure is followed, we can pass upon the propriety of the probate court’s action. We need to have that court’s findings before us before we decide whether or not its judgment should be stayed. As matters now stand, this court is granting a stay without benefit of the findings of the trial court which heard this matter and which may know more about it than we do.
Secondly, by granting a stay of the probate court’s judgment with regard to custody of the child without also staying that court’s contempt hearing, the practical effect may be that the court will put the adoptive parents in jail for not obeying an order that should have been stayed and, by this court’s authorization to those parents to continue in custody of that child, it logically follows that the child could be placed in jail with his adoptive parents.
In the third place, the procedure I suggest is, in my view, the procedure that should have been followed to begin with and without requiring it to he done in this way, we are tacitly approving the reoccurrence of this same situation in similar matters in the future.