|Butler v. Butler , 255 Cal.App.2d 132
[Civ. No. 8359. Fourth Dist., Div. Two. Oct. 17, 1967.]
BILL R. BUTLER, Plaintiff and Respondent, v. BETTY BUTLER, Defendant and Appellant.
Lawson M. Brown for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On December 17, 1958, Bill and Betty Butler, husband and wife, entered into
a property settlement agreement. At that time there were one minor child of the
marriage and Betty's minor child by a previous marriage who had been adopted by
Mr. Butler. By the property settlement agreement each of the parties was to receive
certain specifically described personal property. Additionally, it was provided:
"Said Husband does hereby further agree to pay to [255 Cal.App.2d 133] said
Wife the sum of $300.00 within six months from the date of the execution of this
agreement. Said Wife does hereby waive any and all rights which she may have in
and to all alimony or other money payments for her support and maintenance other
than the foregoing."
The property settlement agreement provided Betty was to have exclusive care,
custody and control of the minor children subject to reasonable visitation rights
in Bill. Bill agreed to pay $25 per week "as and for the support and maintenance
of said children until further order of the court."
The usual provisions were incorporated in the settlement agreement regarding
waiver of rights in the other party's property and estate. It was agreed "that
an executed copy of this agreement may be presented to the court in any action
for divorce between the parties hereto, and upon the court's approval thereof,
shall be incorporated into and made a part of any and all interlocutory judgments
and decrees and final judgments and decrees that the court may render in such
action, in which event it is further agreed that as part of said interlocutory
judgment and final judgment, the court may order the parties to comply with the
terms hereof in every respect; that if this said agreement is approved by the
court, then it shall be determinative of the rights of the parties as to all matters
herein contained and agreed upon."
Bill, as plaintiff, filed a divorce action on December 18, 1958 (the day after
the signing of the property settlement agreement). In the complaint Bill alleged
the parties had entered into an agreement whereby the parties had "divided
any and all property possessed by them and have settled as between themselves
all rights, community or otherwise, that have arisen and may arise by reason of
the marriage of the parties hereto; that said agreement shall be reduced to writing
and presented to the above entitled court for its approval upon hearing of said
Defendant Betty filed an appearance and waiver. The court on January 16, 1959,
granted an interlocutory decree which in part provided: "2. That the plaintiff
pay to the defendant for the support and maintenance of said minor children as
follows: for Kathleen Butler the sum of $12.50 per week and for Linda Butler the
sum of $12.50 per week until further order of court. The defendant is further
ordered to keep the plaintiff advised at all times as to the current address where
children are residing and the current address as to where all support payments
will be sent. [255 Cal.App.2d 134]
"3. That the plaintiff pay to the defendant the sum of $300.00 on or before
June 17, 1959. The defendant is to receive no alimony or support payments other
than the foregoing amount for her support and maintenance.
"4. That the Property Settlement Agreement dated December 17, 1958, heretofore
entered into between the parties hereto is hereby approved and incorporated by
reference and made a part of this interlocutory judgment and both parties are
hereby ordered to comply with all of the executory provisions therein."
The final decree filed on February 8, 1960, provided in part: "It is further
ordered and decreed that wherein said interlocutory decree makes any provision
for alimony or the custody and support of children, said provision be and the
same is hereby made binding on the parties affected thereby the same as if herein
set forth in full, and that wherein said interlocutory decree relates to the property
of the parties hereto, said property be and the same is hereby assigned in accordance
with the terms thereof to the parties therein declared to be entitled thereto."
On March 8, 1966, Betty, by now remarried, filed a Declaration in re Modification
of Child Support requesting an increase of child support from $12.50 per week
per child to $25 per week per child and an Order to Show Cause was issued.
On March 8, 1966, Betty filed a declaration by which she sets forth an itemization
of the weekly amount due and the amount received reflecting a total amount due
for child support of $9,200 and an amount paid of $1,840, leaving a balance of
$7,360. Also, in her declaration Betty states the $300 provided to be paid to
her has not been paid.
The two Orders to Show Cause were before the court on April 11, 1966, with
the following resulting minute order: "Order to Show Cause re: Contempt,
Order to Show Cause re: Modification.
"Plaintiff in court with counsel R. Floum. Defendant in court with counsel
L. M. Brown. Counsel for plaintiff moved that contempt action in this matter be
dismissed as Court lacks jurisdiction. Motion granted. Motion by counsel for defendant
that Order to Show Cause re: Modification go off calendar. Motion granted."
We are here concerned only with the notice of appeal from the order dismissing
the contempt proceedings. Bill Butler, the defendant in the trial court, has filed
no respondent's brief on this appeal. [255 Cal.App.2d 135]
 The first question presented on this appeal is: Is the order of dismissal
of the contempt proceedings an appealable order? Our answer must be in the negative.
Section 1222, Code of Civil Procedure, provides: "The judgment and orders
of the court or judge, made in cases of contempt, are final and conclusive."
Primarily, the cases in which an attempted appeal was filed are those in which
a party was found in contempt. However, there are a limited number of cases of
discharge of order to show cause or a finding the party is not in contempt with
a notice of appeal filed subsequent to such orders.
In John Breuner Co. v. Bryant, 36 Cal. 2d 877 [229 P.2d 356], a motion to dismiss
the appeal was granted where the trial court had discharged the defendant after
finding him not to be in contempt. In the Bryant, supra, case, the rule was enunciated:
"It is well settled that orders and judgments made in cases of contempt are
not appealable, and this rule has been held applicable both where the trial court
imposed punishment for contempt and where the alleged contemner was discharged.
[Cases cited.] An order or judgment in a contempt matter may, however, be reviewed
by certiorari [cases cited], and, where appropriate, by habeas corpus [cases cited]."
In Sanchez v. Newman, 70 Cal. 210 [11 P. 645], proceedings were brought to
punish defendant for alleged contempt of an order of court. The trial court dismissed
the proceeding on the ground that it was barred and therefore the court had no
jurisdiction. The Supreme Court said: "In Tyler v. Connolly, 65 Cal. 28 [2
P. 414], it was held that there is no appeal from a judgment in a case of contempt.
We find nothing in this case which takes it out of the rule laid down in the case
cited. For the reasons given in Tyler v. Connolly, we are of opinion that there
can be no appeal here. The appeal must therefore be dismissed, and it is so ordered."
In Abbott v. Abbott, 24 Cal.App. 475 [141 P. 933], the interlocutory decree
provided defendant should pay to plaintiff $50 per month permanent alimony until
further order of court. Defendant did so until the final decree was entered which
failed to provide for the alimony. After which defendant failed and refused to
pay the $50 per month. "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 [255 Cal.App.2d 136] 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, 15 Colo. 437 [22 Am.St.Rep.  417,
9 L.R.A. 566]), 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."
See also Cesena v. Cesena, 103 Cal.App.2d 212, 213 [229 P.2d 453]; Thomas v.
Thomas, 4 Cal.App.2d 317, 318 [40 P.2d 581].
Since we conclude there is no appeal from the order of dismissal, we need not
consider the points raised by appellant, Betty Butler.
Although the Notice of Appeal states the appeal is "from that certain
judgment or order made and entered ... on April 11, 1966," there was no appeal
from that portion of the order granting defendant Betty Butler's motion to order
off calendar the order to show cause re modification. Therefore, we do not consider
that portion of the order of April 11, 1966.
The appeal is dismissed.
Kerrigan, J., and Tamura, J., concurred.