Peck v. Superior Court

NOURSE, J. pro tem.

*

This is a petition for writ of prohibition to prevent the respondent court from hearing and determining a motion

1

made by the former husband of petitioner whereby he sought to be relieved from the obligation imposed upon him by the interlocutory decree of divorce to support a minor who, by the terms of the interlocutory decree, had been adjudged to be the child of the parties.

The facts are: In March 1959, petitioner commenced an action for divorce against her husband, Robert G. Peck, real party in interest here (sometimes hereinafter referred to as the defendant). By the complaint it was alleged that there was one minor child of the marriage, to wit, Linda Carol. Pending the trial of this action the parties entered into a property settlement agreement which included provisions as to custody of said minor. In this agreement there is the following recitation of fact: “The parties hereto have one child, an issue of said marriage, born August 9, 1956, a girl, Linda Carol. The parties have no other issue, no deceased issue, and no adopted issue, and no adopted children. ’'

By other terms of the agreement defendant agreed that the petitioner should have custody of the minor child subject to the defendant’s right of reasonable visitation and his physical

[575]

custody of the child at certain fixed times and that he would pay to petitioner the sum of $65 per month for the care, education and maintenance of said minor child. After this agreement was executed, the default of defendant was entered and, on the 14th of July, 1959, plaintiff was granted and there was entered, an interlocutory decree of divorce.

The aforesaid agreement was approved and incorporated as a part of the interlocutory decree.

The interlocutory decree of divorce expressly awarded custody of the minor and rights of visitation in accordance with the terms of the property settlement agreement and ordered the defendant to make payments for the support of said child in the amounts fixed by the agreement.

No appeal was taken from said interlocutory decree of divorce, nor was any motion made within six months after its entry to vacate it, or for relief from its terms by reason of “any mistake, inadvertence, surprise or excusable neglect” on the part of the real party in interest or his counsel.