MacDonald v. Superior Court

STURTEVANT, J.

This is an application for a writ of mandate. Facts material to the application are as follows: On July 19, 1939, the petitioner commenced an action to obtain a divorce from his wife, Bessie E. MacDonald. The action was commenced in San Francisco, but on application of the defendant an order was entered transferring the case to the county of San Mateo. On September 25, 1939, the Superior Court of the State of California, in and for the County of San Mateo, made an order directing the petitioner to pay to the defendant $50 per month as maintenance

pendente lite,

the further sum of $15 on account of costs, and $50 on ac

[518]

count of attorney’s fees for defendant. At all times herein mentioned the defendant had and has an income of $250 per month. On January

22,

1940, the petitioner served and filed a notice of motion for an order modifying the previous order for maintenance, costs and counsel fees, and in support thereof he served and filed an affidavit. On March 4, 1940; said motion came on for hearing. At that time petitioner was present and represented by his counsel. The defendant was present and represented by her counsel. The trial court refused to countenance, entertain or hear the petitioner’s motion, stating that the petitioner had not complied with the order dated September 25, 3939. The record’does not disclose that at any time or at all, any proceedings have been had charging the petitioner as being in contempt or that any order or judgment to that effect has been entered.

The record does not disclose that the petitioner has paid any part or portion of the sums specified in the order dated September 25, 1939. The affidavit above mentioned tendered in support of petitioner’s motion set forth that the petitioner has not been employed since September 13, 1939, although he has, on numerous occasions, attempted to obtain work and employment; that the defendant is steadily employed on a salary of $200 a month and has additional income in the sum of $50 per month; that the petitioner is in a highly nervous and excited condition and his doctor has recommended rest; that petitioner is willing to comply, and will, as soon as he is able, comply with the order made September 25, 1939.