Weeks v. Superior Court

The petitioner seeks a writ of mandate to

compel the respondent to grant her a final decree of divorce. Her application here is based upon the refusal of the superior court to act, for the reason that the petitioner, as a party to the divorce action, has willfully disobeyed the lawful order óf the court relating to the custody of a child of the marriage, and is, therefore, in contempt of court.

The petitioner is the defendant in an action for divorce brought against her by her husband on the ground of extreme cruelty. When the action came on for trial she was represented in court by counsel, and she and the minor child of the marriage were in the state and within the jurisdiction of the superior court. By the terms of the interlocutory decree the court determined that the husband was entitled to a divorce, and awarded him the custody and control of the minor. On the day of the trial, and after the decree was granted, the petitioner, without the consent or permission of the court or of the plaintiff in the action, removed the minor from the state, where she has. kept the child ever since. When one year expired after the entry of the interlocutory judgment, the petitioner, without coming into the state, applied to the respondent, through an attorney, for the entry of a final judgment. granting the divorce. Her application was opposed by the plaintiff in the action on the facts stated, and upon the ground that petitioner is in contempt of court in keeping the minor outside the jurisdiction of the superior

[1] We think the respondent was right in refusing to enter the final decree of divorce. [2] Section 132 of the Civil Code provides that when one year has expired after the entry of the interlocutory decree the court, on motion of either party, or upon its own motion, may enter the final judgment granting the divorce. But that does not mean that a party to the action may have a final decree entered when to do so would be a flagrant abuse of the principles of equity and of the due administration of justice. It is within contemplation of the section that facts arising subsequently to the granting of the interlocutory judgment should have their influence in determining the right to a final decree. (O lson v. Superior Court, 175 Cal. 250 , 252, [ 1 A. L. R. 1589 , 165 Pac. 706 ].) When one becomes a voluntary actor before a court and seeks the court’s aid it is manifestly just and proper that in invoking that aid he should submit him-, self to all legitimate orders and processes. [3] 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. (O’Neill v. Thomas Day Co., 152 Cal. 357 , 362, [14 Ann. Cas. 970, 92 Pac. 856 ].) “No rule of law seems more widely prevalent or better established than that a court whose authority has been put to naught will extend no favors or privileges to the party in contempt until he has acknowledged its authority by purging the offense.” (4 Ency. Pl. & Pr. 805; 13 Corpus Juris, 91; Winter v. Superior Court, 70 Cal. 295 , [ 11 Pac. 633 ]; Monterey Coal Co. v. Superior Court, 11 Cal. App. 207 , [ 104 Pac. 585 ] ; Smith v. Smith, 18 Wash. 158 , [51. Pac. 355] ; Campbell v. Justices of the Superior Court, 187 Mass. 509 , [2 Ann. Cas. 462, 69 L. R. A. 311 , 73 N. E. 659 ] ; White v. White, 148 App. Div. 883 , [ 132 N. Y. Supp. 1043 ].)

The identical situation presented by this application was but recently considered by the supreme court of Washington. Pending the determination of a divorce action the superior court of that state ordered the plaintiff, the wife, to beep the child of the parties to the action within the jurisdiction

The application for the writ is denied.

Wilbur, J., Richards, J., pro tem., Lennon, J., Shurtleff, J., Sloane, J., and Shaw, C. J., concurred.

Rehearing denied.

All the Justices concurred.