Ackerman v. Superior Court

FOX, P. J.

This is a petition for a writ of mandate to compel the lower court to hear petitioner’s motion for child

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support and attorney’s fees during the pendency of an action brought by petitioner against her former husband, Paul Winchell, real party in interest.

On March 8, 1963, the original complaint in the action was filed. It contained two counts based on an alleged written property settlement agreement under the terms of which Winchell was to pay, among other specified amounts, for the support of two minor children of the parties. The first count sought declaratory relief in respect to certain terms of the agreement; the second count sought damages for breach of contract and a judgment for future child support based on the terms of the agreement.

On June 17, 1963, with permission of the court, the complaint was amended to allege a third count. The third count included allegations in respect to the property settlement agreement and Winchell’s failure to make payments thereunder. It also alleges that he has wilfully failed and refused to make any other provisions or payments for the support, maintenance and education of the children; that petitioner has employed counsel and has incurred and will incur expenses for prosecuting the action, including reasonable attorney’s fees and costs; that petitioner is without sufficient income to support, maintain and educate the two minor children or to pay the costs of prosecuting the action, including attorney’s fees. The prayer seeks, among other things, that Winchell be ordered to pay for the support of the minor children during the pendency of the action and permanently thereafter the sums provided in the agreement, and reasonable attorney’s fees and costs.

The complaint does not allege that Winchell has the ability to pay; however, his answer alleged that he was unable to pay in accordance with the agreement but was willing to pay reasonable sums upon condition that petitioner account to him and to the court by showing that all sums paid previously by him were used exclusively for the support of the children.

Thereafter, on July 1, 1963, petitioner made a motion for an order that Winchell pay for child support pending the action the amounts called for under the property settlement agreement, and $1,500 attorney’s fees. He moved to dismiss the motion on the ground that the court did not have jurisdiction to make an award pendente lite in such action. The court granted the motion to dismiss.