Radlinski v. Superior Court In and For Santa Barbara County
| Decision Date | 28 November 1960 |
| Docket Number | No. 25019,25019 |
| Citation | 186 Cal.App.2d 821,9 Cal.Rptr. 73 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Mae RADLINSKI, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA and Anthony Radlinski, Respondent. |
C. W. Engelbertson, Santa Barbara, for petitioner.
Floyd C. Dodson, Santa Barbara, for respondent Anthony Radlinski.
This is a proceeding to review an order of the respondent court dismissing an order to show cause in re contempt upon the ground that it lacked jurisdiction in the matter.
From the record certified to us the following facts appear. The respondent court granted to petitioner an interlocutory decree of divorce from her husband Anthony. By the terms of the decree, as amended nunc pro tunc to conform with the order made by the court at the trial, Anthony was ordered to make certain payments upon a Chevrolet automobile, possession of which was granted to petitioner by the terms of a property settlement agreement incorporated in the decree. This order was not based upon the terms of the property settlement agreement but was an award in the nature of alimony awarded by the court at the time it granted the interlocutory decree of divorce.
At the time of the ex parte hearing in petitioner's action for a divorce on October 8, 1958, petitioner had not filed with the court an affidavit in accordance with the Soldiers' and Sailors' Relief Act (50 U.S.C. App. §§ 501 et seq., 50 U.S.C.A.Appendix, § 501 et seq.). Such an affidavit, however, was filed on November 10, 1958, two days prior to the time the court signed and ordered to be filed, nunc pro tunc as of the 8th of October, the amended interlocutory decree.
In March 1960 respondent court issued its order requiring Anthony to show cause why he should not be punished for contempt for disobedience of the order of the court relative to the payments on said automobile to which we have heretofore directed attention. Hearing was had pursuant to this order to show cause and thereafter the court made and entered its written memorandum of decision in which it recited the fact that the military affidavit was not on file at the time the interlocutory decree of divorce was granted and in which it concluded that the court was, therefore, without jurisdiction to grant the decree. It thereupon entered the following order: 'It is therefore ordered, adjudged and decreed that the contempt proceedings be and they are hereby dismissed for lack of jurisdiction.'
Respondent court was clearly in error in concluding that the interlocutory decree was void because the military affidavit was not on file at the time the decree of divorce was granted. Allen...
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McWethy v. Elansari, D048831 (Cal. App. 11/30/2007)
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