In Re Marriage of Hunt

California Court of Appeal Sep 27, 1985 No. G000501Published

Before: Trotter

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Holding. The court held that involuntary dismissal of an order to show cause (OSC) is not authorized by statute, and remanded the case because the trial court failed to exercise its discretion to either receive or exclude oral testimony.

Issues

Whether Code of Civil Procedure section 581 authorizes the involuntary dismissal of an order to show cause.
Whether the superior court erred in dismissing an OSC rather than exercising its discretion to grant or deny the relief requested.

Disposition. remanded

Quotations verified verbatim against the opinion

“We conclude involuntary dismissal of the OSC was not authorized under any circumstances”

“There is no statutory authority comparable to Code of Civil Procedure section 581 which permits a court to dismiss a motion or an OSC.”

“Since the court did not exercise its discretion because it did not believe it had any, the matter must be remanded to it for that purpose.”

Opinion

TROTTER, P. J.

Grace M. Hunt challenges the dismissal of an order to show cause [OSC] regarding modification of pendente lite spousal support. She contends an involuntary dismissal was not authorized under Code of Civil Procedure section 581 because only an oral motion to dismiss had been made. We conclude involuntary dismissal of the OSC was not authorized under any circumstances, and remand because the superior court did not exercise its discretion to exclude or receive oral testimony.

Wife filed a petition for dissolution of marriage and an OSC regarding pendente lite spousal support. At the OSC hearing, the superior court found husband’s monthly income was $5,762 and ordered spousal support in the amount of $2,800 per month.

Wife subsequently filed an OSC requesting an increase in pendente lite spousal support. In the application, wife declared: “[wife] has received information that [husband’s] income is substantially greater than that presented at the previous hearing. ”

When the OSC came on for hearing, husband moved to dismiss because wife had failed to sufficiently allege a change of circumstances. The superior court granted the motion, thereby depriving wife of the opportunity to present oral testimony. Wife appeals,

claiming Code of Civil Procedure

[875]

section 581 governs the dismissal in this case and requires husband file a demurrer or a motion to strike before an involuntary dismissal may be ordered. She contends an oral motion to dismiss may not be the basis for involuntary dismissal because it provides no notice. She further argues she should have been granted leave to amend.

We find Code of Civil Procedure section 581 is not applicable to an OSC for it only permits dismissal of

actions

under certain specified conditions. California Rules of Court, rule 1206 provides in pertinent part: “Except as otherwise provided in these rules, all provisions of law applicable to civil actions generally apply regardless of nomenclature to a proceeding pursuant to the Family Law Act

In Re Marriage of Hunt

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TROTTER, P. J.

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