Vick v. Superior Court

FRAMPTON, J. pro tem.

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Prohibition to restrain the respondent court from proceeding to hear and determine an order to show cause why the provisions of an interlocutory decree of divorce relating to child support should not be modified.

An examination of the file in the action below and the petition discloses that petitioner, Grace Vick, was the plaintiff in an action for divorce filed by her on January 15, 1952,

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entitled “Grace Vick, Plaintiff, vs. Hugh L. Vick, Defendant, ’ ’ number D 427309, in the Superior Court of the State of California for the County of Los Angeles. The action was tried and on March 20, 1952, an interlocutory decree of divorce was granted to the plaintiff wherein she was awarded the custody of the two minor children of the marriage, Coralee Jean and Vicky Lynn, and the defendant, Hugh L. Vick, the real party in interest here, was ordered to pay to the plaintiff for the support of each minor child the sum of $22.50 per week until further order of the court. On application of the plaintiff, a final judgment of divorce was entered on December 28, 1953. The provisions of the interlocutory decree relating to child support which were incorporated in the final decree were, on March 30, 1959, by order of the court based upon a stipulation of the parties, modified so as to terminate the support payments for the minor child Coralee Jean whose custody had, by agreement of the parties, been given to the defendant. On March 16, 1961, the interlocutory decree was further modified to provide for the payment to the plaintiff of the sum of $32.50 per week for the support of the minor child Vicky Lynn and for the payment of the reasonable hospital, medical and dental expenses incurred on behalf of the child.

On July 30, 1965, the husband filed a declaration in support of an order to show cause why the provisions of the interlocutory decree entered March 20, 1952, and the order modifying such decree made on March 16, 1961, should not be further modified. The declaration states, as a basis for modification, changes in conditions and circumstances as follows, “For every calendar year down to 1963, defendant claimed and was allowed the minor children as exemptions on his Federal and State income tax returns. Plaintiff claimed the exemption on Vicky Lynn during the year 1963 and I am informed and believe and thereon allege claimed it on the 1964 return as a result of which a conflict on double deductions has arisen with the Internal Revenue Service. Defendant alleges that the sums paid by him under said orders far exceed 51% of the total reasonable support actually paid for said children and the claims of deduction by the plaintiff are without right.” The declaration goes on to state, “Based upon the foregoing facts I hereby declare that it will be fair, equitable and reasonable to, and I request the court to modify the above-mentioned Order and make further, different, or additional Orders, as follows: to-wit: For an order determining which party in fact paid 51% or more for the