In Re Robbins

SPENCE, J.

Petitioner herein was adjudged guilty of • contempt for failure to pay alimony

pendente lite

and attorney’s fees in' a divorce action and was committed to the county jail for five days. He seeks his release upon

habeas corpus.

It appears that on November 16, 1922, petitioner filed a complaint for divorce and on February 14, 1923, the defendant in that action filed a demurrer to the complaint. On November 1, 1923, the court made an order directing petitioner to pay to the defendant $75 per month alimony

pendente lite

and $150 on account of attorney’s fees. On

[364]

August 31, 1929, an order to show cause was duly issued by the court requiring petitioner to show cause why he should not be punished for contempt for failure to comply with said order. The order to show cause was returnable on September 20, 1929, and was served on petitioner on September 3, 1929. Several continuances were had upon the hearing of said order to show cause and petitioner was finally adjudged guilty of contempt and committed on September 3, 1930. In the meantime petitioner on October 3, 1929, filed a dismissal of the divorce action and on October 13, 1929, filed an amended dismissal.

It is conceded that the order for alimony

pendente lite

was in full force and effect up to the time of the dismissal of the action and that no payments were made in compliance therewith. No question is raised concerning the sufficiency of- the evidence to show petitioner’s ability to make the payments required. It is further conceded that the petitioner was adjudged guilty of contempt for failure to make payments which by the terms of the order had become due prior to the issuance of the order to show cause, which order to show cause was issued more than one month prior to the time that petitioner filed his dismissal.

Petitioner raises several points regarding the nature of the order for alimony