Metson v. Metson

PETERS, P. J.

Defendant appeals from an order denying his motion to dismiss, vacate and set aside an order to show cause issued by the trial court on petition of plaintiff. The motion was made on several grounds, but on this appeal the sole argument made is that under the facts the petition for the order to show cause was insufficient, as a matter of law, and, as a result, the trial court had no jurisdiction to issue the order.

The pleadings disclose the following situation: In January, 1936, plaintiff secured in San Francisco a final decree of divorce from defendant. There was incorporated in the interlocutory decree a property settlement agreement made between the parties, under the terms of which defendant was to pay plaintiff $175 per month for her support until such time as she should remarry, plus the sum of $75 monthly

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for the support of the two minor children of their marriage, Reuben and Wilfred. In addition, defendant agreed to pay-plaintiff the sum of $7,500, at the rate of $100 a month, in satisfaction of loans made by plaintiff to defendant. At the time plaintiff filed her petition in the present proceeding in March of 1941 plaintiff had remarried, so that defendant was freed from the obligation of paying her $175 a month for her support. The agreement further provided that it was to act as a complete bar and defense to any action by either party to alter its terms. Custody of the two minor children was given to plaintiff, and the agreement provided that “as said children become older and the cost of their support, maintenance and education increases the husband will, if able, contribute such additional amounts for the care, support, maintenance and education of said children as may be reasonable and in the light of his then existing financial circumstances, it being understood that in the event that the parties are unable to agree upon the amount of such additional payment by the husband, a court of competent jurisdiction shall have the right to determine the amount of such payment.”

In its decree in the divorce action the trial court provided that the obligation to care for, maintain and educate the children “shall be joint with the wife and husband,” that $150 was to be paid by defendant to plaintiff for the support of the children until further order of the court, and the court expressly reserved jurisdiction to compel the defendant to make additional payments for the care of the children as might seem reasonable and having due regard for the financial circumstances of the defendant.