Rilcoff v. Superior Court

MOORE, P. J.

Petitioner was granted an alternative writ of prohibition upon which a hearing was had. The question presented by the pleadings and the briefs is whether or not the respondent court has jurisdiction to order payments of alimony, costs and attorney fees in a separate maintenance action after the filing of an action for divorce of the same parties, involving no facts other than those which occurred prior to the institution of the divorce action.

Inasmuch as petitioner is defendant in two separate actions, in both of which his wife Mary is the plaintiff, we shall refer to them hereafter respectively as defendant and plaintiff.

[505]

On August 23, 1941, plaintiff filed her action for divorce in the Superior Court of Los Angeles County. On the 19th of September respondent court ordered defendant to pay plaintiff $75 monthly as alimony, $250 attorney fees and $25 costs. On the 29th day of September the case was transferred to the Superior Court of Kern County on the motion of defendant based upon his residence in that county. After the matter had been docketed the latter court modified the order theretofore made in the Los Angeles court by striking therefrom the monthly alimony payments. Following a hearing the general demurrer to the complaint was sustained. Plaintiff having failed to amend within the time allowed, after the lapse of three weeks, a judgment dismissing the action was entered. From such judgment plaintiff took her appeal and presented a bill of exceptions to the judge. The time for settling the bill was fixed for January 8th at which time the court ordered to be included certain documents consisting of parts of the record, which order was ignored by plaintiff’s counsel.

Before filing her notice of appeal from the judgment in Kern County, plaintiff filed her action No. D-215178 for separate maintenance in the Superior Court of Los Angeles County on December 15, 1941. Her complaint stated no facts that had occurred subsequent to the date of the commencement of her action for divorce. From affidavits and the clerk’s certificate before us it is clear that the action for separate maintenance involves no party or cause of action other than those contained in the action for divorce. At the time of filing her new action, she procured an order requiring defendant to show cause before respondent court on the 21st day of January why he should not be required to pay alimony, costs and attorney fees in that action. On that day the court made an order that defendant pay plaintiff $15 per week, $150 attorney fees and $15 costs. At the time of'the hearing upon the order, the court had before it the affidavit of defendant setting forth the origin, pendency, transfer and appeal of the divorce action in Kern County. Respondent court declined to order the transfer for the reason that defendant had not made the payments ordered on the 21st day of January. On the contrary, the court announced that defendant was in contempt and ordered defendant’s motion for change of venue to be dropped from the calendar until he should be purged. On the following day a writ of execution was issued