Knackstedt v. Superior Court

PETERS, P. J.

Petitioner applied to this court for a writ of mandate to compel the Superior Court of Contra Costa County to enter a final decree of divorce in an action pending in that court. Based on the allegations of the petition this court issued its alternative writ. The respondent subsequently filed an answer, and on the return day of the writ it was stipulated that certain records of the respondent court could be introduced and considered by the court. From the complete facts now before us it is quite apparent that the peremptory writ should not issue.

The petition alleges that on August 22, 1945, in the case of

Knackstedt

v. Knackstedt, then pending in the Contra Costa County court, an interlocutory decree of divorce was signed, filed and entered; that it was thereby adjudged that Delia Knackstedt, the plaintiff in that action, was entitled to an interlocutory decree of divorce from the defendant, the petitioner herein; that among other things the decree provided that petitioner should pay his wife, the plaintiff in that action, $100 per month for the maintenance and support of the plaintiff and the minor children of the parties; that on October 28, 1946, the petitioner presented to the Contra Costa court his affidavit in support of his request that the final decree of divorce be entered; that by this affidavit he admitted that he had not paid all of the alimony due under the interlocutory and sought to excuse such nonpayment by the averment that from August 22, 1945, to February 3, 1946, he was unemployed ; that during that time he was under medical care for an injury and is still handicapped by that injury; that this affidavit further averred that petitioner had not been adjudged in contempt for failure to pay the alimony in full and avers that petitioner was and is financially unable to comply with the provisions of the interlocutory. The petition then avers that “on the 28th day of October, 1946, when your petitioner presented his affidavit and request for a Final Decree in said action there was no evidence taken or produced before said Court ... to show that your petitioner herein, had means or ability to comply with said alimony payments; and at no time prior thereto had there ever been introduced or produced before said court or said honorable

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