Schubert v. Superior Court

CRAIG, Acting P. J.

A motion having been presented by the petitioner herein to the Superior Court for modification of an interlocutory decree of divorce in which he was named as defendant, he was denied permission to examine the plaintiff or to introduce any evidence, upon the ground that he had previously been adjudged in contempt of court for a failure to comply with the terms of said decree. The petitioner applies to this court for a writ of

mandamus

requiring the hearing and determination of such motion.

The decree provided for certain regular monthly payments of money by petitioner for. the maintenance and support of a minor child of the parties, which provision it was found by the court he had violated for a period of about four months. The order in this respect, dated February 25, 1930, recited that “the court finds the defendant guilty of contempt for failure to pay order, having the ability so to do”. Upon interposing his motion for modification of the decree, the plaintiff’s counsel objected to the introduction of evidence upon the ground that the defendant was in contempt of court, and that the court was without jurisdiction of the matter, which objection was sustained. The instant proceeding is predicated upon

Archer

v.

Superior Court,

81 Cal. App. 742 [254 Pac. 939, 940], principally, it is said, because the cases are not dissimilar. But an important distinction is at once apparent from the fact that Archer’s motion for modification of an interlocutory decree was filed before an order to show cause why he should not be punished for contempt had been heard. Both proceedings were placed upon the calendar, but were held in abeyance,- and for no other reason than that expressed, the trial court ruled: “Until he does show some evidence of good faith I will not listen to his motions.” Thereafter a substantial payment was made, the petitioner was discharged in the contempt proceedings, and the court still refused to entertain his motion. The petitioner herein ignored the provisions of the decree, was ordered to show cause why he should not comply therewith, upon a hearing was adjudged to have wilfully violated the same, and was

[635]