Radlinski v. Superior Court

California Court of Appeal Nov 28, 1960 No. Civ. 25019Published

Before: Nourse

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Holding. The court held that the failure to file a military affidavit under the Soldiers' and Sailors' Relief Act does not deprive a court of jurisdiction to enter a divorce decree, rendering the decree voidable rather than void. Consequently, the trial court erred in dismissing contempt proceedings for lack of jurisdiction.

Issues

Whether the failure to file a military affidavit at the time of a divorce decree renders the decree void for lack of jurisdiction.
Whether a failure to disclose prior applications for orders to show cause under Code of Civil Procedure section 1008 deprives the court of jurisdiction.

Disposition. Order annulled; peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“The fact that the military affidavit was not on file did not affect the jurisdiction of the court but only rendered the decree it granted voidable”

“The interlocutory decree being valid the respondent court had jurisdiction to hear and determine the order to show cause”

“failure so to do does not deprive the court of jurisdiction but merely renders him subject to punishment for contempt”

NOURSE, J. pro tem.

This is a proceeding to review an order of the respondent court dismissing an order to show

[822]

cause

in re

contempt upon the ground that it lacked jurisdiction in the matter.

From the record certified to us the following facts appear. The respondent court granted to petitioner an interlocutory decree of divorce from her husband Anthony. By the terms of the decree, as amended

nunc pro tunc

to conform with the order made by the court at the trial, Anthony was ordered to make certain payments upon a Chevrolet automobile, possession of which was granted to petitioner by the terms of a property settlement agreement incorporated in the decree. This order was not based upon the terms of the property settlement agreement but was an award in the nature of alimony awarded by the court at the time it granted the interlocutory decree of divorce.

At the time of the ex parte hearing in petitioner’s action for a divorce on October 8, 1958, petitioner had not filed with the court an affidavit in accordance with the Soldiers’ and Sailors’ Relief Act (50 U.S.C. §§ 501 et seq.). Such an affidavit, however, was filed on November 10, 1958, two days prior to the time the court signed and ordered to be filed,

nunc pro tunc

as of the 8th of October, the amended interlocutory decree.

In March 1960 respondent court issued its order requiring Anthony to show cause why he should not be punished for contempt for disobedience of the order of the court relative to the payments on said automobile to which we have heretofore directed attention. Hearing was had pursuant to this order to show cause and thereafter the court made and entered its written memorandum of decision in which it recited the fact that the military affidavit was not on file at the time the interlocutory decree of divorce was granted and in which it concluded that the court was, therefore, without jurisdiction to grant the decree. It thereupon entered the following order: “It Is Therefore Ordered, Adjudged and Decreed that the contempt proceedings be and they are hereby dismissed for lack of jurisdiction. ’ ’

Radlinski v. Superior Court

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