Oliver v. Superior Court

FRAMPTON, J. pro tem.

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Petitioner seeks a review of the proceedings in the lower court and an annulment of the

[239]

judgment holding him in contempt on four counts for his alleged wilful refusal to comply with an order of such court, made on May 3, 1961, in a divorce action filed by plaintiff-wife, wherein petitioner became obligated to pay the sum of $65 on the 10th day of each month commencing May 10, 1961, for the support of the minor child of the marriage, such payments to be made through the office of the court trustee.

The order to show cause

in re

contempt was issued September 11, 1961, at the instance of the court trustee and hearing thereon was set for October 27, 1961. The affidavit of the court trustee in support of the order showed that petitioner had failed to make any payments to and including August 10, 1961, and that petitioner was in arrears on August 31, 1961, in the sum of $260.

The record further shows that on July 15, 1961, the custody of the minor child was given to petitioner by his wife as the result of a mutual agreement between them and that petitioner assumed the obligation of support from that time. On August 9, 1961, petitioner filed an order to show cause

in re

modification of the order of custody made on May 3,1961, and hearing thereon was had on August 22, 1961. As a result of this hearing the custody of the minor child was awarded to petitioner and the support payments were ordered terminated. The court, nevertheless, in the contempt proceeding, found petitioner had wilfully and knowingly disobeyed the order of May 3, 1961, for his failure to pay the child support due August 10, 1961.

Respondent contends that “The mere fact that a modification order was entered does not wipe out all arrearages in support payments. Modification as to alimony and support orders operates prospectively not retroactively.

Steele

v. Steele, 108 Cal.App.2d 595, 596 [239 P.2d 63] ;