Glazer v. Superior Court

DORAN, J. Petitioner seeks a writ of mandate to compel the respondent court to set for hearing an order to show cause [597]and upon said hearing to hear and determine said matter upon the merits.

Petitioner, prior to November 26, 1930, was the wife of Benjamin Glazer. On that day an agreement was executed between them settling their property rights, with provision also for the maintenance and support of petitioner. Thereafter, petitioner filed suit for divorce, and, regarding the property settlement agreement, alleged as follows: “The parties hereto have heretofore effected a property settlement agreement, which agreement the plaintiff will offer the court for its confirmation and approval at the time of the hearing of this proceeding on its merits.” The prayer of the complaint alleged as follows: “ . . . that the court approve the property settlement agreement heretofore made between the parties hereto and incorporate the terms thereof in the Interlocutory Judgment of Divorce”. Regarding the property settlement agreement the interlocutory decree provided as follows: “It is further adjudged and decreed that the property settlement heretofore effected between the parties dated November 26, 1930, offered in evidence and made a part of the file, is hereby approved and confirmed. Both plaintiff and defendant are hereby directed and ordered to comply with each and every term thereof.” Thereafter, based on the affidavit of petitioner herein, said Benjamin Glazer was cited for contempt for refusing to comply with the terms of the interlocutory decree, and, in the same citation, was also required to show cause why certain other relief should not be granted.

At the hearing on the order to show cause, the trial judge denied the relief sought, and discharged said defendant Benjamin Glazer. Petitioner now contends that the trial court sustained the objection of defendant at the hearing upon the ground that the court was without jurisdiction, and that it was for that reason that the court refused to proceed with the hearing upon the order to show cause. Petitioner therefore seeks this writ to compel the lower court to try the issues on their merits, asserting in that connection that the sole question is “the jurisdiction of the (trial) court to take the necessary steps and make the necessary order to enforce the interlocutory judgment of divorce”.

The respondent herein, on the other hand, contends that mandamus is not available to petitioner and in that con[598]