Gromeeko v. Superior Court

California Court of Appeal Dec 16, 1952 No. Civ. 15520Published

Before: Dooling

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Holding. The court held that a prior order suspending support payments pending the hearing of a motion to vacate a support order remained in effect following a reversal and remand, and that the trial court must decide the motion to vacate before proceeding with contempt proceedings for non-payment.

Issues

Whether a stay of support payments pending the hearing of a motion to vacate remains in effect after the reversal and remand of a subsequent order.
Whether the trial court must resolve a motion to vacate a support order before hearing contempt proceedings for failure to pay support.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“We entertain no doubt that the order stopping payments pending hearing of the motion to vacate the support order, properly construed, is still in effect.”

“A peremptory writ of mandate will issue directing the trial court to hear and decide the motion to vacate the support order of April 21, 1950, before hearing the respondent’s order to show cause why petitioner should not be adjudged guilty”

DOOLING, J.

Petitioner was sued for divorce, and an accounting of properties, his wife alleging among other things as cruelty that he fraudulently obtained a Nevada divorce decree from her. By an order of April 21, 1950, the court ordered-petitioner to pay $150 monthly for support, $300 on account of counsel fees and $20 on account of costs, after petitioner had withdrawn his objection to the jurisdiction of the court on the ground that plaintiff was no longer his wife. However on August 18, 1950, petitioner gave notice of motion to set aside the pendente lite order of April 21, 1950, upon the same ground of lack of jurisdiction. When this motion came up for hearing on August 20, 1950, the wife’s attorney moved for continuance. The court gave her the choice either to proceed or to accept as condition of continuance that further payments by petitioner be suspended. The wife chose the latter and the following minute order was made on August 30, 1950: “In this action, the Court, after argument by respective counsel, ordered motion for continuance granted until October 10, 1950, at 10:00 o ’clock a.m.

on condition that support payments stop pending hearing of said motion.”

(Emphasis ours.) After a demurrer to the original complaint had been sustained, the wife on October 10 filed an amended complaint in which she expressly asked annulment of the Nevada decree on the ground of fraud by the husband, lack of Nevada domicile, invalidity of appointment of the attorney who represented her in the Nevada trial, etc. At the hearing to set aside the pendente lite order the court sustained objections to questions of the wife intended to substantiate these allegations, as being an attack on the Nevada decree which were not permitted as part of that hearing, and by an order signed October 17, 1950, annulled the pendente lite order of April 21, 1950. On appeal of the wife Division One of this court on March 28, 1952, reversed the order of October 17, 1950, on the ground that a showing of the invalidity of the Nevada divorce decree should have been permitted on the

[756]

hearing of the motion to set aside the pendente lite order

(Gromeeko

Gromeeko,

Gromeeko v. Superior Court

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DOOLING, J.

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