Momphrey v. Superior Court

[161]

BRAY, P. J.

Petition for writ of prohibition to prohibit the trial court from continuing with a contempt proceeding and from enforcing an order “modifying” the final judgment of divorce and ordering defendant to pay to plaintiff support for the minor children of the parties.

Record

On August 3, 1955, in a divorce action then pending between Mae Jewel Momphrey as plaintiff and petitioner as defendant, an interlocutory decree of divorce was entered granting Mae Jewel Momphrey a divorce, and awarding her the custody of the two minor children of the parties. The decree approved and incorporated a property settlement agreement between the parties. Neither in that agreement nor in the decree was any mention made of payment by defendant of support for said children.

On December 16, 1955, on the hearing of an order to show cause why the interlocutory judgment of divorce should not be modified to require defendant to pay the support of the minor children of the parties, a minute order was entered which stated, “Defendant to pay to plaintiff the sum of $50.00 a month child support. . . ,”

1

Apparently no formal order was entered.

On August 23, 1956, without notice to plaintiff, petitioner obtained a final decree of divorce which omitted any mention of support and which awarded the custody of the children to the defendant.

On May 9, 1957, there was entered an “Order Directing Defendant to Pay Support Money for Minor Children.” This order stated “that by a previous minute order entered herein on December 16,1955, the defendant was ordered to pay” $50 per month for the support of the children. It found defendant in default under that order and ordered defendant to pay certain sums per week until the arrearage was paid.

On September 26, 1957, defendant was found guilty of contempt of court for failure to pay said support and was ordered into the custody of the sheriff.

On May 9, 1957, an order amending the final judgment of divorce was entered. This order stated, “Plaintiff’s order