Young v. Superior Court

California Court of Appeal Jun 25, 1951 No. Civ. 14957Published

Before: Bray

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Holding. The court held that a divorce decree which merely approves and incorporates a property settlement agreement by reference, without explicitly ordering the performance of the agreement's provisions, cannot be enforced through contempt proceedings.

Issues

Does an interlocutory divorce decree that approves and incorporates a property settlement agreement by reference constitute a court order enforceable by contempt for failure to pay child support?

Disposition. annulled

Quotations verified verbatim against the opinion

“If a property settlement agreement is merely referred to in the divorce decree, or approved by the court but not actually made a part of the decree and the performance of any of its provisions ordered, then the provisions of the agreement cannot be enforced by contempt proceedings.”

“One who violates a duty to support a wife or child cannot be punished for contempt of court unless he likewise violates a court order requiring him to support either or both. There is no such order here.”

BRAY, J.

By this proceeding in certiorari petitioner seeks to review an order of the superior court finding him in contempt for failure to pay support and maintenance of the minor child of the parties.

[66]

Question Involved

Does the interlocutory decree order payment of support for the child so that a failure to make such payment may constitute contempt of court ?

Facts

The only reference in the interlocutory decree of divorce, entered in June, 1945 (the final decree makes no order concerning the matter), to support for respondent and the minor child and the property settlement between the parties is as follows: “it is further ordered, adjudged and decreed that the written agreement heretofore entered into by plaintiff and cross-defendant and defendant and cross-complainant respecting their property rights and the care and maintenance of the minor child of the parties hereto, a copy of which is annexed hereto, is, and each and every provision thereof, approved, ratified and confirmed by this Court and made a part of this decree.” The agreement provides that petitioner pay respondent the sum of $75 per month for her maintenance and support and $50 per month for the support and maintenance of the child.

Subsequent to the entry of the decree petitioner reduced his payments from the $125 per month agreed to $75 per month. He contends that this was under an oral agreement with respondent to continue until his financial condition had improved. Plaintiff denied the agreement. On January 17, 1951, petitioner was brought before the superior court on an order to show cause why he should not be punished for contempt for alleged failure to comply with the provisions of the interlocutory decree. At the hearing the trial court found him in contempt for failure to pay for the support and maintenance of the child, directed him to pay respondent the sum of $1,000 (the amount he was in arrears) at the rate of $25 per month and the further sum of $100 as attorney’s fees in the contempt proceedings.

Was There An Order For Support!

Petitioner contends that the superior court acted without and in excess of its jurisdiction for the reason that the interlocutory decree contains no order for payment and therefore petitioner did not violate any order. We agree with this contention.

Young v. Superior Court

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BRAY, J.

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