State ex rel. Lang v. Superior Court for King County

• Decision Date: 27 February 1934
• Docket Number: 24889.
• Citation: 30 P.2d 237,176 Wash. 472
• Parties: STATE ex rel. LANG v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

30 P.2d 237

176 Wash. 472

STATE ex rel. LANG v. SUPERIOR COURT FOR KING COUNTY.

No. 24889.

Supreme Court of Washington

February 27, 1934

Department 1.

Application by the State, on the relation of J. Maynard Lang, Jr., for a writ of prohibition to be directed to the Superior Court for King County, the Honorable Chester A. Batchelor, Presiding Judge thereof, to restrain respondent from proceeding further with or under order to show cause pending in such court. On respondent's motion to quash show cause order.

Motion to quash denied, and writ to issue as prayed, unless respondent pleads further within time limited.

Fred Catlett, of Seattle, for relator.

Tucker & Tucker, of Seattle, for respondent.

MITCHELL Justice.

During the pendency in the superior court for King county of a divorce action by Helen Da Ponte Lang against J. Maynard Lang, Jr., in 1932, the parties entered into a written agreement designated 'Property Settlement,' reading in part, as follows:

'That whereas there is now pending in the above entitled court and cause an action for divorce between said parties; and

'Whereas said parties desire to settle their property rights pending said divorce action; Now Then

'It is hereby mutually agreed as follows:

'1. Party of the Second Part will pay to Party of the First Part the sum of Twelve Hundred Dollars ($1200) in monthly payments of Fifty Dollars ($50.00) on the 20th day of each and every month hereafter commencing on the 20th day of October, 1932, until said $1200.00 shall have been fully paid without interest; and in the event that the said party of the first part shall remarry she shall nevertheless be entitled to said $1200.00; and after the full payment of said $1200.00 said second party will continue said monthly Fifty Dollar ($50) payments until the further sum of Eight Hundred Dollars ($800) shall have been fully paid Provided said first party has not remarried--it being the true intent of the parties hereto that upon the remarriage of said first party said $50.00 monthly payments to apply upon said 'further sum of $800.00' shall immediately cease and determine.'

Thereafter the plaintiff in the divorce action was granted an interlocutory decree of divorce, which, among other things, provides:

'It is further ordered, adjudged and decreed that the property settlement between the plaintiff Helen Da Ponte Lang and James Maynard Lang, Jr., executed herein on the 11th day of October, 1932, a copy of which is hereto attached, marked Exhibit 'A', and made a part of this judgment and decree as fully as though copied at length herein, and the provisions of said property settlement are hereby adopted and made a part of this paragraph of this decree. * * *'

Thereafter, April 25, 1933, the plaintiff in the divorce action was granted an absolute divorce from the defendant therein, by decree which ratified, affirmed, and confirmed the interlocutory order and decree.

On October 13, 1933, Helen Da Ponte Lang filed in the superior court an application for an order against J. Maynard Lang, Jr., requiring him to 'show cause why he should not comply with the terms of the property settlement entered in the interlocutory and final decrees,' and supported the motion and application with her affidavit alleging the property settlement, setting out its terms, approved by the court and made a part of the decree, and further alleging a stated amount to be owing to her from the defendant and refusal on his part to make any further payment. On that day the superior court entered an order directing the defendant to show cause on October 20, 1933, 'why he shoudl not be punished for contempt in refusing to obey and carry out the provisions of the property settlement.' The defendant, appearing specially, filed a demurrer or motion for an order quashing the service of the show cause order, upon the ground that the court was without jurisdiction, which motion, as we understand, was intended and treated as an objection to the power and jurisdiction of the superior court to enforce the terms of the property settlement and decree by proceedings in contempt.

Upon hearing the motion, the court filed a memorandum decision, in which, among other things, upon referring to the property settlement between the parties, it is said: 'This agreement is a property settlement. It is so treated by the parties and the court. The decree establishes its status as such.'

At that time the court entered an order that the motion to quash be denied and that the cause be assigned by the presiding judge of the superior court for further hearing upon the show cause order of October 13, 1933. An order was entered fixing December 1, 1933, for such further hearing and the taking of evidence. Thereupon application on the relation of J. Maynard Lang, Jr., for relief was filed in this court, upon which a show cause order was issued directing the respondent to show cause why he should not be prohibited and restrained from proceeding further with or under the order to show cause pending in the superior court.

On the return day of the show cause order issued out of this court, the respondent appeared and filed a motion to quash the show cause order, upon which motion the parties have been heard, orally and in writing, not only as a question of remedy in this court, but also upon the merits of the controversy between the parties.

The respondent contends, first, that the writ of prohibition will not lie. Assuming, however, as we think is the case, that the trial court has no jurisdiction to enforce the terms of the property settlement by proceedings in contempt, the writ will lie. State ex rel. Peterson v. Superior Court, 67 Wash. 370, 121 P. 836; State ex rel. Waterman v. Superior Court, 127 Wash. 37, 220 P. 5.

The further contention on the part of the respondent is upon the merits of the controversy with respect to the right and power to enforce the provisions of the property settlement by proceedings in contempt. The interlocutory decree, which was approved and confirmed by the final decree of divorce, upon adopting and making the property...