Potts v. Superior Court

ROTH, J.

Petitioner, Anna Dora K. Potts, seeks a writ of mandate directing the Superior Court of Los Angeles County to set aside its order quashing a writ of execution (dated April 21, 1964).

On January 6, 1959, petitioner secured a final decree of divorce from Billy J. Potts, the real party in interest herein. Incorporated in this decree was a written separation agree

[693]

ment which provided,

inter alia,

“that Plaintiff have custody of the one minor child, . . . Defendant shall pay to Plaintiff the sum of $250.00 per month for the support, maintenance and education of said child during her minority, ...”

On March 17, 1964, in department 8 of respondent court, the court heard orders to show cause

re

modification of the decree and

re

contempt. Potts contended during this hearing that petitioner had agreed by an extrajudicial oral agreement in September, 1959, to reduce the monthly support payments to $175, and in his answer to the present petition states that he paid petitioner $175 monthly after the 1959 agreement.

In a minute order dated March 18, 1964, the trial court ordered that petitioner’s motion

re

contempt be dismissed on the ground sthat the court could not find the element of wilfulness and on the basis that the parties had entered into an oral agreement to reduce the amount of the monthly payments. The court also denied petitioner’s motion to modify the divorce decree. However, on June 17, 1964, the trial court entered a

nunc pro tunc

order to correct its order of March 18, to reflect its decision from the bench that the child support payments be modified, pursuant to Pott’s motion, to $175 per month, commencing on April 15, 1964.