Abbott v. Abbott

The plaintiff in this action sued for a divorce from the defendant upon the ground of cruelty. Incidentally the plaintiff prayed for the sum of fifty dollars per month as temporary alimony. The defendant defaulted. The lower court made its findings of fact in favor of the plaintiff, and among other things specifically found that "The sum of $50 per month permanent alimony is a reasonable sum to be allowed plaintiff for her support and maintenance." Thereupon the plaintiff was granted an interlocutory decree of divorce, which in addition to declaring that the plaintiff was entitled to be divorced from the defendant, ordered, adjudged and decreed that the defendant pay to the plaintiff "the sum of $50 per month permanent alimony" until the further order of the court.

The interlocutory decree was duly entered as of the date of its making. No appeal was taken therefrom, and upon the expiration of one year a final decree of divorce was made and entered, which failed to award to plaintiff an allowance for her maintenance, and made no reference to the "permanent alimony" previously allowed her in the interlocutory decree.

The defendant paid fifty dollars per month to the plaintiff as directed by the interlocutory decree from the date of its making to the date of the entry of the final decree; but failed and refused thereafter to make any further payments to the plaintiff. Upon the affidavit of plaintiff the defendant was cited to show cause in the court below why he should not be punished for contempt in refusing to comply with the mandate of the interlocutory decree. Upon the hearing of the order to show cause the defendant contended, and the lower court held, that the interlocutory decree, in so far as it related to the payment of permanent alimony, was not enforceable after the entry of the final decree; and that inasmuch as the latter decree made no provision for alimony the defendant was not in contempt. Upon that ground alone the lower court ordered the citation in contempt dismissed and respondent discharged. From this order the plaintiff has appealed.

We cannot consider the merits of the question presented by the briefs for the reason that the order appealed from, being one in a contempt proceeding, is not a reviewable order. Such was the common law (9 Cyc. 61). It is the law generally (see note to Mullin v. People, 22 Am. St. Rep. 417), and it is expressly so provided in section 1222 of the Code of Civil Procedure. (People v. Latimer, 160 Cal. 716, 720, [117 P. 1051]; Tyler v. Connolly, 65 Cal. 28, 33 [2 P. 414]; People v. Kuhlman, 118 Cal. 141, [50 P. 382]; In re Vance, 88 Cal. 262, [26 P. 101].) Certiorari will lie when the proceedings are absolutely void for want of jurisdiction. (People v.Latimer, 160 Cal. 716, [117 P. 1051]; Muir v. Superior Court,58 Cal. 361; Maxwell v. Rives, 11 Nev. 213; Phillips v. Welch,12 Nev. 158; Young v. Cannon, 2 Utah, 560). In this case, if plaintiff's position be correct, the trial court in effect refused to enforce a plain provision of a judgment, in which case mandamus would seem to be the proper remedy (Crocker v.Conrey, 140 Cal. 213, [73 P. 1006]; People v. Latimer,160 Cal. 716, [117 P. 1051].) In 9 Cyc. at page 65, it is stated that the extraordinary writ of mandamus will issue in contempt proceedings when the applicant has a clear right, and no other specific and adequate remedy.

The appeal is therefore dismissed.

Lennon, P. J., and Richards, J., concurred.