STEWART v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY

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

STEWART v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 10166.

Decided: January 18, 1935

S. S. Hahn and W. O. Graf, both of Los Angeles, for petitioner. Everett W. Mattoon and D. De Coster, both of Los Angeles, for respondent.

An interlocutory decree of divorce was granted in respondent court to the wife of petitioner, in an action entitled Stewart v. Stewart, D106-714, in January, 1933. Petitioner seeks a writ of mandate to compel the entering of a final decree, which has been withheld until back alimony, support for child, and attorney's fees have been paid.

About eleven months after entry of interlocutory decree the presiding judge of said court signed an ex parte order on application of the wife directing that the final decree should not be entered until the husband had paid up his arrears. On August 6, 1934, another judge of said court conducted a hearing on the questions of modification of the order and contempt. The order to show cause in re contempt was dismissed on stipulation, and it was found that petitioner was in arrears $1,500 on alimony and support, and $750 on attorney's fees. He was ordered to pay $25 per month on the former amount and a similar sum on the attorney's fees each month, commencing August 20, 1934; to pay $300 forthwith on attorney's fees and keep up the current support payments, which the court reduced somewhat in amount at the same time. On November 8, 1934, petitioner asked the court to enter the final decree, and it appeared that he complied with the terms of the order of August 6, 1934; the written order being dated September 4, 1934.

Either party is entitled to request entry of a final decree of divorce. Civ. Code, § 132. “Mandate is an appropriate remedy to compel the entry of such a final decree, where the court's duty is plain and unmixed with the exercise of discretionary powers.” Olson v. Superior Court, 175 Cal. 250, 165 P. 706, 1 A. L. R. 1589; Claudius v. Melvin, 146 Cal. 257, 79 P. 897. Where facts are shown entitling movant to such final decree it is the duty of the trial court to enter it (Olson v. Superior Court, supra; Newell v. Superior Court, 27 Cal. App. 343, 149 P. 998); for when such facts appear without dispute “its entry by the court is in the nature of a ministerial act.” McGuinness v. Superior Court, 196 Cal. 222, 229, 237 P. 42, 45, 40 A. L. R. 1110. However, if there are matters requiring the exercise of the court's discretion, it is obvious that the entry of a final decree is a judicial act and “not merely a clerical act consequent upon a previous judicial act.” Gloyd v. Superior Court, 44 Cal. App. 39, 42, 185 P. 995, 996.

It is urged that petitioner should not receive the assistance which he here seeks because he is in contempt of the trial court for noncompliance with orders included in the interlocutory decree and in the intervening ex parte order signed by the presiding judge. “No party to an action can, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to its legal orders and processes.” Weeks v. Superior Court, 187 Cal. 620, 622, 203 P. 93, 94. We must conclude, however, that the ex parte order, made after the entry of the interlocutory decree, was a nullity and ineffectual for any purpose. Neither does it appear that when petitioner requested entry of the final decree in November of 1934 he was in contempt of court, since at the hearing the previous August the contempt citation had been dismissed and the order which had been made a part of the interlocutory decree was modified as above set forth, and petitioner thereafter had fully complied with the terms of the order as so modified.

No other reason has been advanced for denying the entry of the final decree and petitioner is entitled to the issuance of the writ as prayed.

It is so ordered.

SCOTT, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIL, J.