Smith v. Superior Court

PULLEN, P. J.

—By this writ of mandate petitioner seeks to compel respondents to hear a matter in contempt upon its merits, and to determine the wilfulness of the violation of the order on which said contempt is based.

[161]

This matter grows out of an action in divorce pending in the county of Tuba, entitled

“Elaine T. Smith, Plaintiff,

v.

Sidney V. Smith, Jr., Defendant”.

The final decree of divorce was entered in said cause on October 24, 1927. In December, 1932, by stipulation, the final decree of divorce in this matter was modified, providing that defendant therein pay to plaintiff the sum of $30 per month for the support and maintenance of their minor child. Thereafter, and on the 7th day of April, 1934, an order was made modifying said final decree by providing that defendant pay to plaintiff, for the support, maintenance and education of said minor, an additional sum of $45' per month.

Thereafter, and in 1936, an affidavit was filed by Elaine T. Smith setting forth that defendant Sidney V. Smith, Jr., had failed to pay certain monthly instalments as provided by the court for the support and maintenance of said minor, and asked that the said Sidney V. Smith, Jr., be punished for contempt of court. Said affidavit set forth that said minor, Elaine Grace Smith, was a beneficiary under a certain trust in the estate of Sidney B. Smith, deceased, pending in the Superior Court in and for the City and County of San Francisco, by the terms of which trust said minor was entitled to a sufficient sum for her support before the said Sidney V. Smith, Jr., was entitled to any sum from said trust.

It is also set forth that the trustees had failed and refused to pay any sum to said minor since the year 1927, and that said child had no means for support other than sums directed by the court to be paid by the father, and from said trust It is further alleged by affiant that by a decree entered on the 24th day of February, 1936, a superior court had adjudged that said minor was a beneficiary of said estate and entitled to a sufficient sum for her support, maintenance and education from said trust. However, the trustees had failed and refused to pay any sum to said minor, and an appeal was taken from said decree, which appeal is still pending and undetermined. . That the trustees under said trust and the said Sidney V. Smith, Jr., had contested all proceedings brought on behalf of said minor for the purpose of establishing her rights in the trust and under the will of Cora V. Smith, deceased. One of said actions was decided adversely to said minor, and an appeal was taken to the Su