Nutter v. Superior Court

KINCAID, J. pro tem.

*

Petition for writ of review and to annul an order dated May 24, 1960, holding petitioner in contempt and sentencing him to serve 15 days in jail with placement on probation for one year on condition that he serve five days in jail and to make child support payments thereafter accruing. An order to show cause thereupon issued and the respondent court was directed to refrain from enforcing said contempt order pending such review. The real party in interest has made her return to the petition herein by filing demurrer thereto.

As there is no appeal from an order made in a contempt proceeding, it may be reviewed upon certiorari, if it is in excess of jurisdiction. (Code Civ. Proc., §1222;

Taylor

v.

Superior Court,

20 Cal.2d 244, 246 [125 P.2d 1];

Phillips

v.

Superior Court,

22 Cal.2d 256, 257 [137 P.2d 838].)

The contempt proceeding stems from a divorce action entitled “ Jacklyn B. Nutter, Plaintiff, versus Newton Nutter, Defendant, [petitioner herein] Number LB D-56948.” An interlocutory judgment of divorce was entered on March 4, 1957, under the provisions of which physical custody of the three minor children of the parties was awarded petitioner. Thereafter, by order to show cause and hearing regularly held on November 5, 1959, both parties being present, the court made its order modifying the custody and support provisions of the judgment in that custody of two of the children, Nancy Ann and Suzanne, was awarded to- the mother and custody of Stephen to petitioner. The latter, was ordered to pay the mother for support of said two children the sum of $12.50 per week or a total of $25' per week on each Saturday commencing November 7, 1959, and until further order of court.

On April 8, 1960, affidavit of the mother was filed and order to show- cause was issued and served on petitioner to appear and show cause why he should not be held in contempt for wilfully disobeying the order heretofore made in his presence on November 5, 1959. The affidavits alleged that pursuant to such order $550 in weekly payments for support of the two children in the mother’s custody had accrued; that

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