Marrs v. Superior Court

YORK, J.

Elizabeth Arietta Marrs brought action against her husband, William Lester Marrs, the petitioner here, for separate maintenance and support; the defendant husband answered and filed a cross-complaint for divorce. The cause was heard March 20, 1933', and no evidence having been offered on behalf of plaintiff and cross-defendant, an interlocutory decree of divorce was granted to defendant arid cross-complainant, which provided that the husband pay to the wife the sum of $60 per month for her support and maintenance, also attorney fees and costs. On October 2, 1933, at the instance of the wife, an order to show cause

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contempt was issued. On October 13, 1933, the husband moved the court to modify the interlocutory judgment of divorce, which motion was continued. On October 26, 1933, both the order to show cause

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contempt for failure of the husband to pay alimony, and the motion of the husband to modify the interlocutory decree of divorce came on for hearing. The motion of the husband to modify the decree of divorce was by the court denied “due to stipulation by attorney for defendant as to support at time of trial and due to the fact the Court holds that Order based on such stipulation is not void.” The court found defendant able to pay $60 per month, as provided in the decree of divorce, also found that failure of husband to pay was deliberate and that therefore he was guilty of contempt, and imposed sentence of five days in the county jail.

Petitioner upon petition for writ of review to this court contends that the court acted in excess of its jurisdic

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tion when it granted alimony to the wife in view of the fact that the husband was granted the divorce for the fault of the wife.

Respondents, on the other hand, maintain that the interlocutory decree of divorce was based upon a contract of property settlement.

At the time of trial of the divorce action the following proceeding took place:

“The Court: Let us proceed in the case of Marrs against Marrs. Mr. Stoner: We are prepared to enter into a stipulation, your Honor. If your Honor please, in this case, we desire to enter into a stipulation. I am representing the plaintiff, Elizabeth R. Marrs, and Mr. Hamilton represents the defendant, William Lester Marrs, and let the record show that William Lester Marrs is in the courtroom at the time I make this statement or this stipulation. It is stipulated between the parties that the defendant may proceed with his cross-complaint and in the event that it appears to the court he has a cause of action for divorce and the divorce will be granted, subject to the payment of alimony in the sum of $60.00 a month to the plaintiff, Elizabeth R. Marrs, and that the defendant also pay the sum of $40.00 for attorney’s fees and $15.00 costs, which was the order of the court on December 19, 1932, by Judge Dudley L. Valentine.