Goetz v. Superior Court of Los Angeles County

SHENK, J.

This is an application for a writ of prohibition to restrain the respondent superior court from proceeding further on an order to show cause by which Robert Goetz, the real party in interest, sought to modify alimony and support provisions of an interlocutory decree of divorce. An alternative writ was issued.

The petitioner, Mary Goetz, obtained an interlocutory decree of divorce from Robert Goetz on May 25, 1956. It contained provisions for alimony and the support of the Goetz’ minor

[785]

children. On February 15, 1957, Robert obtained an order to show cause why these provisions should not be modified. On March 19, 1957, a hearing was had on the order to show cause. The matter was transferred to the court commissioner for his findings and recommendations. On April 8, 1957, the court entered an order on the commissioner’s findings and recommendations denying the relief sought. On the same day a deputy court clerk mailed a copy of the commissioner’s recommendations and court order to Robert’s attorney. On May 14, 1957, Robert’s attorney filed and served exceptions to the findings and recommendations of the court commissioner and a notice of motion to set them aside. On May 31, 1957, the court entered a minute order sustaining the defendant’s exceptions and granting his motion. The court reset the order to show cause for hearing on June 18, 1957. Mary then brought this proceeding in prohibition to restrain the superior court from enforcing its order of May 31st and from further proceeding on the order to show cause.

Mary contends that because Robert failed to except to the commissioner’s first recommendations and court order within five days after copies thereof were mailed to his attorney on April 8 by the deputy clerk, his exceptions to the court’s later action may not be heard or considered. Mary relies upon section 259a, subdivision 2 of the Code of Civil Procedure. Section 259a is contained in the chapter relating to the powers and duties of court commissioners. It is there provided that a commissioner shall have power “. . . 2. To take proof and make and report his findings thereon as to any matter of fact upon which information is required by the court; but any party to any contested proceeding may except to such report and the subsequent order of the court made thereon within five days after written notice of the court’s action, a copy of said exceptions to be filed and served upon opposing party or his counsel within said five days; and may argue his exceptions before the court on giving notice of motion for that purpose within ten days from entry thereof. After a hearing before the court on such exceptions, the court may sustain, or set aside, or modify its order theretofore made. ...”