Heinecke v. Superior Court

California Court of Appeal Jul 9, 1938 No. Civ. No. 11862Published

Before: McComb, Wood

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Holding. A writ of prohibition will not issue to restrain an inferior court from hearing a contempt proceeding over which it has jurisdiction based on the mere assumption that the court will rule erroneously.

Issues

Will a writ of prohibition issue to restrain a Superior Court from hearing a contempt proceeding based on the assumption that the court will render an erroneous decision?

Disposition. Application for writ of prohibition denied; alternative writ discharged.

Quotations verified verbatim against the opinion

“We may not in a proceeding of this character anticipate that the court’s decision will be contrary to the law and the facts as they appear at the examination.”

Opinion — McComb

McCOMB, J. This is an original application for a writ of prohibition to restrain respondent Superior Court from proceeding to hear an order to show cause why defendant [481]should not be punished for contempt for failure to comply with certain provisions of a property settlement agreement executed by him and his former wife. A demurrer has been filed to the petition.

The material facts alleged in the petition are:

August 15, 1932, petitioner was named as defendant by his wife in an action for divorce. September 9, 1932, petitioner and his wife entered into a property settlement agreement. September 30, 1932, petitioner filed an amended cross-complaint for divorce in an action instituted against him by his wife, and after default was duly entered to the cross-complaint he obtained an interlocutory decree of divorce on October 19, 1932, which contained with reference to the property settlement agreement of the parties the following order:

“IT IS HEREBY FURTHER ORDERED AND DECREED that the property settlement agreement made and entered into between the parties to this action on the 9th day of September, 1932, be made and is a part of this Interlocutory Judgment of Divorce. ’ ’

August 31, 1934, a final decree of divorce was entered which contained this provision:

“It is further ordered°and decreed that wherein said interlocutory decree makes any provision for alimony or the custody and support of children, said provision be and the same is hereby made binding on the parties affected thereby the same as if herein set forth in full, and that wherein said interlocutory decree relates to the property of the parties hereto, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto.”

April 5, 1938, there was issued from respondent court and directed to petitioner an order to show cause why he should not be punished for contempt for failure to comply with certain provisions of the property settlement agreement above mentioned. April 25, 1938, the return date in the order to show cause, the following minute order was entered upon the records of the clerk of respondent court:

Heinecke v. Superior Court

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Opinion — McComb

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Dissent — Wood

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