Petry v. Superior Court

WHITE, J.

By this proceeding petitioner seeks a writ of mandate to require the respondent court to hear and determine a contempt proceeding based upon the asserted failure of her former husband to make the monthly payments alleged to be due her under the provisions of a judgment of divorce.

In 1934 petitioner’s husband, Frederick Petry, brought an action for divorce against her in the Superior Court of Los Angeles County. In June, 1935, after all pleadings had been filed, but before trial of the cause, the parties entered into a property settlement agreement, which provided that the husband pay to the wife the sum of $100 per month for six months and $90 per month thereafter until her death or remarriage, “in full settlement of all rights of alimony.” Thereafter, by stipulation, the cause was tried as a default, petitioner herein offering no evidence in support of her an

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swer or cross-complaint, and a divorce was'granted to the plaintiff. At the default hearing the plaintiff husband introduced the property settlement agreement in evidence and requested its incorporation in the judgment of divorce. A copy of the agreement was attached to the interlocutory judgment, which, in addition to granting a divorce, provided as follows:

“It is hereby specifically ordered and decreed that the property settlement agreement entered into by and between the parties hereto is hereby approved and made a part of this decree in all its terms, provisions and conditions.

“It is further ordered that the plaintiff and defendant fully perform their respective rights and duties vested in and imposed upon them under and by virtue of the property settlement agreement

heretofore made on the 22nd day of June, 1935, which said property settlement agreement has been exhibited during the course of the hearing had in this matter, introduced into evidence, and incorporated into this order.”

The final judgment of divorce contained the provision: “That wherein said interlocutory decree makes any provision for alimony or the custody and support of children, said provision be and the same is hereby made binding on the parties affected thereby the same as if herein set forth in full, and that wherein the said interlocutory decree relates to the property of the parties hereto, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto.”