Ballentine v. Superior Court

PETERS, J. pro tem.

Edward W. Ballentine, claiming to have been found in contempt of an order to pay alimony, and alleging that the trial court was without jurisdiction to

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enforce the order, brings this proceeding in prohibition to restrain its enforcement. His original petition also sought a writ of mandate to compel the trial court to dismiss a certain divorce proceeding pending therein. Prior to reaching this court the petition for a writ of mandate was abandoned.

On September 10, 1943, the San Mateo Superior Court entered an interlocutory decree of divorce in favor of Mary T. Ballentine against Edward W. Ballentine. By that decree the property rights of the parties were adjusted, and Edward was ordered to pay Mary $150 a month alimony, and other sums, not here involved, for the support of the children of the marriage. Edward made such payments until November 1, 1943.

Edward, while the San Mateo action in which he was plaintiff and cross-defendant was pending, went to Nevada, and there commenced an action for divorce against his wife Mary. His wife appeared in the Nevada action, pleaded the pend-ency of the California proceedings, and filed a cross-complaint. On September 18, 1943, the Nevada court granted Mary an . absolute divorce from Edward. The Nevada court found that the San Mateo Superior Court had entered its interlocutory decree on September 10th, and in relation to the property rights and alimony provisions of that decree, found that they were “fair, just and equitable.” It embodied in its decree the identical provisions for alimony and support contained in the California decree.

On March 13, 1944, Mary upon affidavit secured from the San Mateo court an order to show cause why Edward should not be punished for contempt for failing to make the payments set forth in the California decree. A hearing on this order to show cause at which, apparently, no reporter was present, was held on March 27, 1944, and, after the taking of some testimony, was continued to April 24, 1944. At this last hearing a reporter was present, and the proceedings then had are part of the record. The hearings disclosed that Edward was in arrears in excess of $900, and that he had the present ability to pay $250. At the conclusion of the April 24th hearing, after considerable discussion between the court and counsel, the court stated: “Well, I judge him guilty of contempt and commit him to jail until he pays the sum of $250,” and then the court granted a five-day stay. The court entered its formal order the same day but had apparently changed its