Catalano v. Superior Court

FRAMPTON, J. pro tem.* Petition for mandate to compel a hearing on a motion for attorney’s fees, alimony and [642]child support pending an appeal from an interlocutory-decree of divorce.

Petitioner is the defendant and cross-complainant in an action for divorce filed against her in the respondent court by her husband, Michael L. Catalano, the real party in interest here. The petition alleges that the husband’s complaint contained what purported to be a property settlement agreement executed by the parties disposing of the community property and wherein petitioner had waived her right to ask for attorney’s fees and alimony in the event that an action for divorce Avas filed. Petitioner filed an amended cross-complaint wherein she asked for a divorce, custody of the three minor children, issue of the marriage, for an equitable division of the community property, alimony, child support and reasonable attorney’s fees. She also sought to set aside the property settlement agreement upon the ground that it had been obtained by means of fraud practiced upon her by her husband and upon the further ground that she had signed the document while under duress. The divorce action was tried and on June 9, 1965, an interlocutory decree was entered granting the divorce to both plaintiff and defendant therein. The court found against the defendant on her allegations of fraud and duress, found the property settlement to be fair and equitable and approved it. The court awarded the custody of the three minor children to the defendant Avith visitation rights, subject to certain restrictions, to the plaintiff, and ordered the plaintiff to pay $65 per month for the support of each minor child and, in addition, to pay their reasonable medical and dental bills. The decree denied the petitioner’s plea for alimony, attorney’s fees and costs, the court holding that she had waived them under the provisions of the property settlement agreement.

Petitioner filed timely notice of appeal from the interlocutory decree, and on August 25, 1965, filed a notice of motion for an order granting alimony, increased child support, and attorney’s fees and costs pending the outcome of the appeal, which motion came on for hearing on September 15, 1965. At this time, the petitioner abandoned that portion of her motion relating to increased child support, on the ground that no shoAving could be made of a change of circumstances since the entry of the interlocutory decree. Because of the amount of time necessary to hear the motion and the congested condition of the court’s calendar the hearing was continued over to October 19, 1965. On the latter date the motion