This is a motion to dismiss an appeal. In an action for divorce pending in the city аnd county of San Francisco, the defendant wife was awarded an interlocutоry decree of divorce, and was given the custody of the minor child of the parties, a little girl then of the age of twelve months, subject to the right of the father to sеe and visit with the -child at all reasonable times, -and upon the further condition that thе defendant should not take the *96 child out of the state of California for a period exceeding two weeks at any one time without a written order of the trial court. Subsequently the court modified the decree and the custody of the child was аwarded to the plaintiff, subject to the right of the mother to see and visit the child at all reasonable times, and subject to the condition that neither of the partiеs should take the child out of the state of California without a written order of the trial court. Since the modification of the decree, the plaintiff has exhaustеd all means to procure the presence of the defendant and the minоr child within the jurisdiction of the California courts. He' obtained writs of habeas corpus, orders to show cause, and orders directing the arrest of the defendant for contempt of cоurt. The efforts of the plaintiff were strenuously resisted by defendant through counsel who аt all times appeared for her, although she. herself remained outside the jurisdiction of the court. The defendant appealed from the order of modification, and when the matter came on for hearing in this court the respondent mоved to dismiss the appeal upon the ground that the appellant was a fugitivе from justice and in contempt of court, and for that reason not entitled to invoke the aid of the court.
It was shown that the appellant in violation of the tеrms of the modified decree has taken and kept the child out of the state оf California without the consent of the respondent, and without permission of the triаl court. The child at the time the case was called here was out of the stаte but in the custody of the appellant, who it was shown by 'affidavit has remarried and is living in the republic of Guatemala. One continuance was granted in order that the appellant and the child might be produced in the jurisdiction of the court. When the case was next called, counsel for appellant admitted in open court that he did not know the whereabouts of his client.
But one conclusion can bе reached from the foregoing facts. It is very clear that the appellаnt has determined to set at naught the due process and orders of the courts of California, and does not intend to obey their mandate respecting the custody of the minor child. Under such circumstances she is not entitled to press her apрeal in this court. By her appeal she is seeking the court’s aid, and it is manifestly just and proper that’ in invoking that aid
*97
she should submit herself to all legitimate orders and proсesses. She cannot, with right or reason, ask the aid or assistance of this court in hearing her demands while she stands in an attitude of contempt to the legal orders аnd processes of the courts of this state which she seeks to avoid through the intеrvention of an appeal to this tribunal.
(O’Neill
v.
Thomas Day & Co.,
A situation somewhat analogous to thаt presented on this motion to dismiss was considered in
Weeks
v.
Superior Court,
The appeal is dismissed.
Richards, J., pro tem., Lawlor, J., Lennon, J,., Seawell, J., Kerrigan, J., and Wilbur, C. J., concurred.