Warren v. Superior Court

WOOD (Parker), J.

Petition for writ of mandate commanding the superior court to hear and determine an order to show cause regarding support of children, attorney’s fees, and costs pendente lite.

Petitioner filed a complaint against Robert L. Warren wherein she alleged that she obtained a decree of divorce from him in Oregon in 1948, in which decree she was awarded custody of their two minor children, and defendant was ordered to pay $50 a month for the support of each child, and to pay $50 a month for plaintiff’s support. She alleged further that in 1954, pursuant to application of defendant, the order for support of children was reduced to $25 a month for each child. She alleged further that $3,000 was unpaid upon the said order for her support. In the prayer she asked that defendant be ordered to pay: (1) $50 a month for the support of each child or, in the alternative, to pay the $25 a month for each child as ordered by the Oregon court and to pay $25 additional a month for each child; (2) $3,000 representing unpaid support for plaintiff; (3) reasonable attorney’s fees, and costs.

Upon application of petitioner, an order was issued directing the defendant therein to show cause on December 21, 1954, in department 8, why he should not be required to pay to petitioner reasonable sums for attorney’s fees, costs, and support of children pending the trial of the action.

On December 21, the defendant made a motion to dismiss the order to show cause. The minute order of that date states: “After oral arguments the matter is continued to

January 11, 9:30 a. m.” On December 29, petitioner obtained another order directing the defendant to show cause, with respect to the same matters, on January 28, in department 8. The minute order of January 11, states: “On statement of counsel, the matter is continued to January 28, 1955, at 9:30 a. m.” On January 28, the minute order states: “All matters continued to time of trial.”

Petitioner refers to section 137.2 of the Civil Code which

[394]

provides that during the pendency of any action for the support of children “the court may order the husband . . . to pay any amount that is necessary” for the support of the children. She also refers to section 137.3 of the Civil Code which provides that during the pendency of any action for the support of children “the court may order the husband ... to pay such amount as may be reasonably necessary for the cost of . . . the action and for attorney’s fees.”