Sullivan v. Superior Court

Petitioner presented his petition asking that respondents be ordered to enter a final decree in an action for divorce between petitioner and his wife which is pend

The petition alleges that on September 27, 1922, petitioner and his wife entered into a written agreement for the settlement of their property rights; that the agreement provided, among other things, that petitioner " shall cause to be conveyed unto” the wife certain particularly described real property in Los Angeles County, and “shall further cause to be erected and constructed upon said real property a dwelling-house of five rooms”; that theretofore, on July 20, 1922, petitioner commenced in respondent court an action against his wife for divorce on the ground of desertion; that on April 5, 1923, respondent court rendered its interlocutory decree of divorce in that action, which decree adjudged in part “that the plaintiff shall cause to be conveyed unto the defendant” the real property already mentioned, and that “said plaintiff shall further cause to be erected and constructed upon said real property a dwelling-house of five rooms”; that “thereafter and on the seventeenth day of April, 1924, more than one year having elapsed since the entry of the interlocutory decree and no appeal having been taken from said judgment and no motion for a new trial having been made, and the action not having been dismissed, this petitioner made application for a final decree; that thereupon . . . the defendant in the said action for divorce, filed therein her petition based upon .her affidavit . . . asking that a final decree be denied this petitioner in that he was in contempt of court, having failed to comply with the terms of the aforementioned interlocutory decree in that he had failed ... to convey unto said defendant the aforementioned property and had further failed to erect thereon a house in accordance with the terms of said interlocutory decree”; that thereafter, on May 22, 1924, before respondent judge, evidence was adduced in support of the last mentioned petition and “the court after considering all testimony found that this petitioner . . . had not complied with the order of the court ... in that he had not deeded said land” to his wife “and that he had further not erected thereon a house as per the said interlocutory decree”; that at said hearing petitioner showed by “uncontradicted testimony that on account of financial reasons he was unable to comply with the order of the court in the building of

[1] Petitioner contends that the requirements that he build the house and convey the land had no proper place in the interlocutory decree and were not therefore a basis for the order adjudging him to be in contempt. It has been decided several times, on appeals from interlocutory decrees of divorce, that such matters as those mentioned are not properly to be covered by such decrees. See Radich v. Radich, 64 Cal. App. 605 [ 222 Pac. 182 ], and cases cited in the opinion there rendered. Where, however, there is no appeal from the interlocutory decree, the rule is quite different. The attempt by interlocutory decree to make disposition of the property rights of the parties to the action does not represent a departure from the jurisdiction of the court. It is but a mere matter of error. If the interlocutory decree is not appealed from, or no attempt is made under section 473 of the Code of Civil Procedure to set it aside on the ground that it was rendered through the surprise, inadvertence, or excusable neglect of the defendant, it becomes, through lapse of time, as fully a finality as if the matters mentioned were included in a final decree. In the absence of an appeal, or of a motion for relief under section 473, the parties are concluded by it (Abbott v. Superior Court, 69 Cal. App. 660 [ 232 Pac. 154 ] ). Here the time within

Petitioner contends for the invalidity of the interlocutory decree on another ground, and insists that because of its alleged invalidity on that ground he could not legally be charged with contempt of court in refusing to obey it. The ground insisted upon is this: The provision of the interlocutory decree requiring the building of a house is void, for the reason that the courts will not specifically enforce the performance of a contract by which it is agreed that personal services shall be rendered. This point comes within the ruling of Abbott v. Superior Court, supra. If the agreement to build be regarded as an agreement to perform personal services, the attempt of respondent court to decree a specific performance of it can be regarded as nothing more than error, if, indeed, it is to be regarded even as error, which we do not decide, and petitioner has had his opportunity to correct the error by appeal. Not having availed himself of the opportunity, the requirement of the decree in the regard mentioned has become conclusive against him.

[2] Petitioner makes the further point that the interlocutory .decree could not form a proper basis for the contempt charged against him, for the reason that the order to build the house was indefinite and uncertain. He cites authority, in support of his contention, to the effect that an uncertain order cannot furnish ground for a charge of contempt in disobeying it. We need not, however, decide whether the order in the respect mentioned was indefinite and uncertain. There still remains the order to convey. As petitioner was held in contempt as for a disobedience in the matter of that order, it is unimportant whether he was in contempt of the order to build.

[3] It is insisted that the order to build and the order to convey were alike void upon the ground that there were no allegations of the pleadings in the divorce action to support them. This question is concluded under the rule stated in Abbott v. Superior Court, supra.

[4] It is contended that an interlocutory decree of divorce having been rendered, the party in whose favor it had

Demurrer sustained. The alternative writ of mandate is vacated and a peremptory writ is denied.

Finlayson, P. J., and Craig, J., concurred.