Thomas v. Superior Court

THE COURT.

This is a petition for a writ of

mandamus

to require the Superior Court of the County of Butte to issue an order for the defendant in a divorce case to show cause why he should not be adjudged guilty of contempt for failure to pay alimony required by the provisions of a judgment which was rendered against him.

The petitioner and Clyde Thomas were husband and wife. Dissensions arose between them and they executed a written settlement of property rights in which it was provided that in the event of a divorce " Clyde Thomas is to pay, and does by these presents agree to pay unto the said wife, Suzette Thomas, the sum of fifty ($50.00) Dollars per month, to be paid to his said wife until she may remarry.” A complaint for divorce was subsequently filed by this petitioner against her husband in which it was alleged that the agreement in settlement of property rights had been previously executed and “that in said agreement heretofore made certain payments were agreed to be made to the plaintiff herein by the defendant which payments defendant will be bound to pay and plaintiff bound to receive, and if a decree of divorce is entered in this matter said payments shall be included in said decree of divorce and be payable to the plaintiff according to the terms of said agreement”. The prayer of the complaint then asked for a decree of divorce and “that the payments agreed to be made by the defendant to plaintiff be incorporated in a decree of divorce and be made payable to plaintiff; and for such other and general relief as the court shall deem meet and proper”. This complaint was duly served upon the defendant who failed to appear or answer the same within the time allowed by law or at all and his default was duly entered. October 2, 1928, the cause was tried in the absence of the defendant. Witnesses were sworn and examined and a minute order was entered in the followinglanguage: “Interlocutory decree ordered.” On the same date a written interlocutory decree of divorce was duly signed and filed containing the following provision with respect to alimony: “It is further ordered, adjudged and decreed that the defendant herein pay to the plaintiff herein the sum of Fifty ($50.00) Dollars per month as alimony for the support

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and maintenance of said plaintiff until such time as the said plaintiff may remarry.” After a lapse of one year and on October 8, 1929, a final decree of divorce was duly entered containing the following language with respect to the settlement of property rights and alimony: “It is further ordered, adjudged and decreed that the defendant herein pay to the plaintiff herein the sum of Fifty ($50.00) Dollars per month as alimony for the support and maintenance of said plaintiff until such time as the said plaintiff may remarry, in accordance with property settlement entered into between plaintiff and defendant under date of September 12, 1928.” For a period of time the defendant paid these instalments of alimony, but subsequently defaulted with respect to such payments.