Kent v. Superior Court

California Court of Appeal Sep 21, 1951 No. Civ. 14960Published

Before: Wood (Fred B.)

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Holding. The court held that the trial court lacked jurisdiction to enforce a property settlement agreement against a non-party through an order to show cause in a divorce action because the underlying decrees did not contain an order prohibiting the alienation of assets.

Issues

Whether a contractual obligation not to alienate assets was merged into the divorce decrees as an enforceable court order.
Whether the superior court has jurisdiction to entertain a proceeding against a non-party to a divorce action to enforce a property settlement agreement.

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“The conclusion is inescapable that the trial court is without jurisdiction to entertain the proceeding against this petitioner initiated by the questioned order to show cause.”

“The first clause quoted contains no order imposing an obligation upon anyone. It merely incorporates by reference and approves the agreement.”

[594]

WOOD (Fred B.), J.

Petitioner seeks a writ of prohibition commanding the respondent court to desist from any further proceeding, insofar as petitioner is affected, upon an order to show cause Why petitioner should not be ordered to restore to Marion H. Kent certain property given by him to her, and to account to Doris Kohn, plaintiff in the action, for all interest, dividends, rents and profits received by the petitioner from said property. The order to show cause includes an order restraining petitioner, pending the hearing and further order by respondent, from transferring to any person other than Marion, any of the property mentioned.

The order was made March 10, 1951, upon the application of Doris Kohn in a divorce action between her, as plaintiff, and Marion H. Kohn, now Marion H. Kent, defendant, and long after the final decree therein had become a final judgment. Petitioner herein was not a party to said action prior to the entry of the final decree and there has been no order authorizing or directing that she be made a party. Petitioner appeared specially therein and moved to quash, as to her, the order to show cause and temporary restraining order. Respondent denied that motion and continued to a date certain the hearing of the order to show cause and temporary restraining order.

The main question is whether or not there is a judgment or an order of court which may be enforced against this petitioner in such a proceeding as that which has been initiated by the order to show cause.

The affidavit for the order to show cause shows that the parties to the divorce action entered into a property settlement agreement, whereby Doris was to receive 30 per cent of the annual net income of Marion during his lifetime, and after his death the sum of $250 a month from his estate should he predecease her; that the agreement provides that he shall not alienate his assets for the purpose of defeating her rights in and to his estate; and alleges that subsequent to the final decree Marion gave his present wife, petitioner herein, certain property in derogation of the rights of Doris under the agreement; that at the time of the gifts petitioner herein knew of that agreement; and that the agreement was made a part of the interlocutory and final decrees.

Paragraph 8 of the agreement consists of two sentences, the first of which declares that the estate of Marion shall be liable for and shall pay to Doris the sum of $250 each month for the balance of her natural life, beginning immediately

Kent v. Superior Court

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