Tolle v. Superior Court

WASTE, C. J.

Petition for a writ of prohibition to restrain the respondent court and the judge thereof from further proceeding with the hearing of an application for the modification of an order granting alimony to the divorced wife of petitioner. The final decree, made April 16, 1919, directed the defendant, petitioner here, to “pay plaintiff [his wife] the sum of $50.00 per month alimony for the support and maintenance of herself and said minor child [of the parties], Irma Pauline Tolle, and that he pay the same monthly in advance on the 15th day of each month until said minor child, Irma Pauline Tolle, reaches the age of eighteen years”. Irma was then sixteen years of age, and reached the age of eighteen years in February, 1921.

It is not disputed that petitioner complied with the terms of the order and paid the sum of $50 per month until the minor reached the designated “age of eighteen years”, and is nowise in default. Seventeen years after the payments of alimony ceased, the divorced wife has moved the superior court to modify the decree of divorce and “make a further, different or additional order” requiring petitioner to pay her for

“her

support and maintenance the sum of $400 per month from and after the date of the modification”. (Italics added.) Petitioner, contending that he has fully performed the terms of the decree of 1921, moved the court to dismiss the application of his former wife. The motion was denied,

[97]

and petitioner seeks by prohibition to restrain the court from proceeding with hearing the application.

Petitioner's contention that he has fully complied with the requirements of the decree that he pay alimony is supported by the authorities. Our decision in

McClure

v.

McClure,

4 Cal. (2d) 356 [49 Pac. (2d) 584, 100 A. L. R 1257], discusses the exact question. It was there held (p. 359) to be “well settled that a decree of divorce may be rendered which permanently relieves the husband from the obligation to pay alimony in any sum. The decree has this effect where it expressly so provides, or where it neither awards alimony to the wife nor reserves the right thereafter to make an allowance for her support.” Many authorities are cited as supporting the text. Accepting this to be the settled rule, we are brought to a consideration of the question: Did the court here permanently relieve this petitioner from the obligation to pay alimony after the minor child of the parties reached the age of eighteen years?