Stewart v. Superior Court

California Court of Appeal Jan 18, 1935 No. Civ. 10166Published

Before: Scott

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Holding. The court held that the petitioner was entitled to a writ of mandate compelling the entry of a final divorce decree because the prior ex parte order withholding the decree was a nullity and the petitioner was not in contempt of court.

Issues

Whether a writ of mandate is the appropriate remedy to compel the entry of a final divorce decree.
Whether the trial court's ex parte order withholding the final decree until payment of arrears was valid.
Whether the petitioner was in contempt of court, thereby precluding him from seeking judicial assistance.

Disposition. Writ granted

Quotations verified verbatim against the opinion

“Mandate is an appropriate remedy to compel the entry of such a final decree where the court’s duty is plain and unmixed with the exercise of discretionary powers.”

“We must conclude, however, that the ex parte order, made after the entry of the interlocutory decree, was a nullity and ineffectual for any purpose.”

SCOTT, J.,

pro

tem.

An interlocutory decree of divorce was granted in respondent court to the wife of petitioner, in an action entitled

Stewart

Stewart,

D106-714, in January, 1933. Petitioner seeks a writ of mandate to compel the entering of a final decree, which has been withheld until back alimony, support for child and attorney’s fees have been paid.

About eleven months after entry of interlocutory decree the presiding judge of said court signed an

ex parte

order on application of the wife directing that the final decree should not be entered until the husband had paid up his arrears. On August 6, 1934, another judge of said court conducted a hearing on the questions of modification of the order and contempt. The order to show cause

in re

contempt was dismissed on stipulation, and it was found that petitioner was in arrears $1500 on alimony and support and $750 on attorney’s fees. He was ordered to pay $25 per month on the former amount and a similar sum on the attorney’s fees each month, commencing August 20, 1934, to pay $300 forthwith on attorney’s fees and keep up the current support payments, which the court reduced somewhat in amount at the same time. On November 8, 1934, petitioner asked the court to enter the final decree, and it appeared that he complied with the terms of the order of August 6, 1934, the written order being dated September 4, 1934.

[704]

Either party is entitled to request entry of a final decree of divorce. (Civ. Code, sec. 132.) “Mandate is an appropriate remedy to compel the entry of such a final decree where the court’s duty is plain and unmixed with the exercise of discretionary powers.”

(Olson

Stewart v. Superior Court

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SCOTT, J.,

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