Parker v. Parker

BARNARD, P. J.

The plaintiff secured a divorce from the defendant, the interlocutory decree being entered on July 11, 1927, and a final decree on July 14, 1928. By the terms of these decrees the defendant was required to pay to the plaintiff the sum of $100 per month until her death or remarriage. During the years 1933 to 1935, inclusive, the defendant paid some $2,000 less than the amounts thus required.

On July 29, 1936, the plaintiff applied for and secured an alternative writ of mandate from this court directing the Superior Court of San Diego County to cause judgment for the alleged deficiency to be entered in her favor, or to show cause on August 11, 1936. On August 4, 1936, she filed in the superior court notice of a motion for costs and attorney’s fees in connection with the proceeding for a writ of mandate. This application was heard on August 10, 1936, and an order was entered directing the defendant to pay her the sum of $150 for this purpose. The defendant has appealed from that order.

It is first contended that the court was without jurisdiction to make this order since the divorce decree had become final and section 137 of the Civil Code permits such an allowance only during the pendency of an action for divorce. While the appellant concedes that allowances of this nature have been approved in a number of cases in this state it is argued that in all such eases the question has arisen before the final decree was entered, where the interests of minor children were involved or where the court still retained the power to alter the decree with reference to the amount allowed for the support of the former wife. It is argued that the court here had no such power to alter the decree in this respect since the amount named in the decree was based upon an agreement between the parties and, therefore, the appellant’s duty to pay rests upon contract and not upon the decree. The record here fails to show that this decree rested upon a contract or, if so, what the terms of the contract were.

[141]

Under some circumstances the court may alter such a decree, regardless of an agreement between the parties.

(Johnson

v.

Johnson,