114 Cal. 542 | Cal. | 1896
On November 22, 1884, plaintiff obtained a decree in the court below dissolving the bonds of matrimony previously subsisting between herself and defendant; awarding to her the custody of their minor child; setting over to her a specified portion of the com
It is argued that the portion of the judgment requiring the payment of forty-five dollars per month for the support of plaintiff is void, because no statement of the husband’s ability was contained in the complaint. The provision for support in such cases is ordinarily an incident of the judgment of divorce; the jurisdiction of the court (which is the extent of our concern at present) to make such provision is not dependent upon averments in the complaint of the husband’s resources— any more than its power to dispose of the children depends upon an allegation of the relative fitness of the parents for their custody. (Civ. Code, secs. 138, 139; Ex parte Gordan, 95 Cal. 374; 2 Bishop on Marriage, Divorce, and Separation, 1067, et seq.)
It is also insisted that permanent alimony could not be allowed to the wife because—it is said—the husband then had neither separate nor community property to which resort could be had to enforce payment thereof. (Civ. Code, sec. 141.) We are not convinced that there was no such property; it was not essential, however, to warrant the decree for future maintenance that he should then have owned property of either class. (Ex parte Spencer, 83 Cal. 460; Eidenmuller v. Eidenmuller, 37 Cal. 364.)
The statute limits the right to have execution on a judgment to the period of five years from the date of entry (Code Civ. Proc., sec. 681), and that period having expired in this instance, it is contended that “the judgment ceased to be of binding force, and process could not issue under it.” But the court had power to make suitable allowance for support of the wife during her life (Civ. Code, sec. 139); and the allowance might take the form of pecuniary payments at successive monthly intervals (Ex parte Spencer, 83 Cal. 460); the right to execution for these does not accrue until they respectively fall due. The case is within the principle of De Uprey v. De Uprey, 23 Cal. 352.
The order should be affirmed.
Vanolief, C., and Searls, 0., concurred.
For the reasons given in the foregoing opinion the •order is affirmed.
McFarland, J., Garoutte, J., Van Fleet, J., Harrison, J., Henshaw, J.
Rehearing denied.