McLaughlin v. Superior Court of State

• Decision Date: 11 October 1954
• Citation: 274 P.2d 745,128 Cal.App.2d 62
• Parties: Morris R. McLAUGHLIN, Petitioner, v. SUPERIOR COURT OF THE STATE of California, In and For the COUNTY OF LOS ANGELES, Respondent. Civ. 20557.
• Court: California Court of Appeals Court of Appeals

Page 745

274 P.2d 745

128 Cal.App.2d 62

Morris R. McLAUGHLIN, Petitioner, v. SUPERIOR COURT OF THE STATE of California, In and For the COUNTY OF LOS ANGELES, Respondent.

Civ. 20557.

District Court of Appeal, Second District, Division 2, California.

Oct. 11, 1954.

Hearing Denied Dec. 9, 1954.

Caryl Warner, Los Angeles, Morris R. McLaughlin, in pro. per., for petitioner.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Albert G. Bergman, Los Angeles, for Janet V. McLaughlin, Real Party in Interest.

FOX, Justice.

Petitioner secured an interlocutory decree of divorce on the grounds of cruelty in June, 1949. The wife was awarded custody of their minor son who was then 19 years old. The decree provided that the plaintiff-husband pay the wife $200 a month for her 'support, care and maintenance' and that of the minor child until the further order of the court. A final decree was entered in June, 1950. The minor child attained his majority in October, 1950. There has been no modification of the decree. Plaintiff made the $200 monthly payments to defendant through the year 1952. In 1953, however, he paid her only $700. In April, 1954, defendant procured the issuance of an order to show cause re contempt based upon her affidavit that plaintiff was delinquent $1,700 for the year 1953 and $800 for the first four months of 1954. Plaintiff challenged the jurisdiction of the court on the ground that the support provision of the decree was void.

At the hearing on the order to show cause evidence establishing the foregoing facts was received, whereupon plaintiff objected to the introduction of any further evidence on the ground that the court initially was without jurisdiction to make an award of alimony or support for defendant since the divorce was granted to plaintiff on a complaint alleging cruelty. (He also objected on the further ground that the minor son of the parties had reached his majority.) The commissioner sustained the objections and recommended that the order to show cause be dismissed. Judge Doyle approved this recommendation and ordered the citation dismissed on April 27, 1954. Within the required time the defendant excepted to the commissioner's findings and recommendation. At the hearing on defendant's exceptions on June 16 they were denied and the order of April 27 affirmed with the addition to the order of the words 'without prejudice,' so that the order then read 'the order to show cause is dismissed without prejudice.'

On June 24 defendant made a motion to reconsider the order of June 16. As a result of this hearing the following order was made: '* * * the order of June 16, 1954 is vacated and set aside. The defendant's exceptions to the findings and recommendation of the commissioner and the order thereon, made April 27, 1954 are now granted, and the order of April 27, 1954 is vacated and set aside and the order to show cause re contempt, heard April 27, 1954, is now placed off calendar.'

On August 5, 1954, defendant procured the issuance of another order to show cause re contempt against the plaintiff. This order was based upon a lengthy affidavit of defendant and affidavits of her two previous attorneys. It is sought to be shown by these affidavits, inter alia, that it was agreed that plaintiff would be permitted to get an uncontested divorce and that defendant would not offer evidence in support of the charges in her cross-complaint since the effect thereof might injure plaintiff in his profession, and that an oral agreement setting the property rights of the parties was entered into and the support provisions of the interlocutory decree were a part of and in accordance with such agreement.

Plaintiff, as petitioner herein, seeks to annul the order of June 24 and to prevent a hearing on the order to show cause of August 5 re contempt.

It is fundamental that one may not be held in contempt for violating a court order unless such order is valid and enforceable. (12 Cal.Jur.2d, sec. 26, p. 43.) Hence we must first examine the interlocutory decree and determine the validity of the provision therein requiring the plaintiff to pay defendant $200 per month for her support and that of their minor child. Since the decree was granted to the husband on the ground of the wife's extreme cruelty the making of an order for her support was 'beyond the jurisdiction of a superior court unless based upon a contract of property settlement.' Johnson v. Superior Court, 128 Cal.App. 584, 590, 17 P.2d 1055, 1057; In re McKenna, 116 Cal.App. 232, 2 P.2d 429; In re Nielsen, 19 Cal.App.2d 305, 65 P.2d 360; Brooks v. Brooks, 53 Cal.App.2d 93, 94, 127 P.2d 298. See, also, 34 A.L.R.2d 321, Par. 3, note 12. The interlocutory decree, however, fails to disclose any fact indicating the provision for the defendant's support was based on a contract settling the property rights of the parties. On its face the provision for the wife's support is simply an alimony order, and since on the record the divorce was granted to the husband for her fault, the court was without jurisdiction to award her alimony, and such order was therefore void. Harwell v. Harwell, 26 Cal.App.2d 143, 144, 78 P.2d 1167; Marrs v. Superior Court, 137 Cal.App. 579, 582, 30 P.2d 1030; In re Nielsen, supra. Hence plaintiff could not be guilty of contempt for failure to comply therewith. Kreling v. Superior Court, 18 Cal.2d 884, 885, 118 P.2d 470; In re Laws, 31 Cal.2d 846, 193 P.2d 744. So, the commissioner correctly recommended that the citation for contempt be dismissed. The immediate approval, however, of this recommendation by Judge Doyle did not have the effect, as petitioner argues, of then disposing of the contempt proceeding. Such order was interlocutory in character and remained so 'throughout the period for filing and hearing exceptions to the commissioner's report.' Ellsworth v. Ellsworth, 42 Cal.2d 719, 724, 269 P.2d 3, 6. When, however, upon the hearing of the exceptions to the commissioner's report the judge overruled the same and affirmed the order of April 27, the contempt proceeding was disposed of and the dismissal was 'final and conclusive', Code Civ.Proc., sec. 1222, so far as the trial court was concerned. The words 'without prejudice' which the court added to the affirmance of the dismissal order have no legal significance since contempt...