*1 In Bank. Oct. 23450. 1955.] A. No. [L. COURT OF Petitioner, v. SUPERIOR HALL, PEIRSON M. Respondent; GERTRUDE COUNTY, LOS ANGELES Respondent. HALL, Party Real in Interest M. *3 Irving Walker, M. Sheppard James C. Sheppard, and Mullins, Richter & Balthis for Petitioner. Kennedy, County
Harold W. Counsel, and William E. Lamoreaux, Counsel, Deputy County for Respondent. Currer, Jr., Party
William J. for Real in Interest and Re- spondent.
EDMONDS, J. —Peirson appealed M. Hall part “from that of decree which pay ordered him to attorneys.” and the fees of Mrs. Hall’s This court ordered ‘1 judgment nsofar as the awards Mrs. per Hall [i] $350 month for and maintenance, reversed; it is in all respects (Hall other Hall, it is affirmed.” On day filed, the same upon that the remittitur was parte application ex judgment of a final of divorce granted, incorporating by provisions reference the of attempted unsuccessfully decree. Hall Mrs. to have judgment execution on the moved issued. She then judgment. vacate the pending, While that motion was she why obtained orders required to show cause Hall should not be pay temporary alimony, attorneys’ “during costs and fees pendency of this action.” Before the time set for the orders, hearing these opposition Hall filed written and gave notice of motions final and for determining orders liability, any, his fixing permanent alimony. amount of rulings There have been no made on the orders to show upon subsequent cause nor motions Mrs. Hall tem- porary alimony attorneys’ However, fees. judg- the final grounds ment has been set aside it was void and obtained inadvertence. Hall appeal noticed an from the order of vacation but later abandoned it.
A minute order recites that “Motion defendant for Liability Defendant, Determining Order if any, and Fix- ’’ ing hearing Amount came thereof on for and that the Oral motion of counsel for fix permanent defendant to amount of argued denied.” Thereafter, the court denied ruling. a-motion to reconsider that It also denied a motion ‘‘ Liability later decision made to reconsider its re: of Defend- alimony”, fixing ant and the and denied a permanent alimony. “rerlewed motion” to fix By present petition, his Hall seeks a writ mandate com- manding superior court “to hear and determine motion your petitioner for an order the amount of alimony” paid Hall and requiring Mrs. it to “desist hearing and refrain” application her for temporary alimony, attorneys’ costs and fees. But the record shows *4 superior that the court has heard and adversely determined permanent fix alimony to Hall his motion to as well as three subsequent ruling. motions to reconsider By its his demand endeavoring for affirmative action he is compel the upon. to hear a motion which has been ruled However, points the memorandum of and authorities and petition briefs in the state that the order liability for his his motion to determine position the remittitur alimony erroneous. His is that was per- fix the trial court to supra, in Hall commands v. any jurisdiction give alimony it no manent and that has other relief. appeal the judgment of this court on and order judgment from partial portion of the
was a reversal of the taken, In a civil appeal without directions. which the was cause a new trial. action such a reversal remands the Co., 547, (Erlin Ins. 7 Cal.2d National Union Fire v. 367, Pusey, P. P.2d Estate 177 Cal. [170 “ unqualified remands cause 846].) reversal the [A]n parties the in trial (citation), places new the trial cause had never been position court in the same as the opinion of court on exception that tried, with the (Central appeal applicable.” Sav. must be followed so far as 438, Lake, 521].) Bank Cal. Oakland equally partial reversal of a principle applicable This to a is 469, Court, (Cf. Pillsbury Superior judgment. Cal.2d 149].) P.2d Hall, supra, partial In Hall v. reversal unqualified, way in restricts the opinion and the no large. scope of a of the issues The basis retrial set at respective needs the order was the conclusion that “the alimony justify do not here allowed amount (42 442.) Necessarily that to the wife.” Cal.2d at court. then before the conclusion rests the evidence Co., supra, (Cf. Erlin Fire Ins. 7 Cal.2d v. National Union 548.) present evidence Mrs. Hall now be able than tending those shown to show different circumstances in in affidavits trial, in and she so asserts the record the former and counsel support of her motions for fees. allege, show,
Hall does not record does not complied governing setting rules he has for trial 6, (Rule superior Superior Courts.) Rules for court. seeking Essentially, by proceeding compel this he fix superior court to the amount of without But, parties, without the consent of the a retrial. solely determine that court could not matter on (Blache Blache, former of the record trial. basis 531, To do so would be Arth, 4 (Heinfelt prejudicial error legal 191]), is no compelling and there basis for *5 by by writ of mandate action the trial court which should claims, If, procedure. obtained under established as Hall procedure setting for the matter for trial cause hardship through delay, him there available to a method is (Rule advancing of Superior the date of a Rules for trial. Courts.)
The further is made Mrs. Hall waived contention that procedural her rights by waiting five more than months after for remittitur was filed to have cause set retrial and moving by not to strike Hall’s motion that however, by During period, be fixed Hall the court. that retrial, and equal case set for opportunity had to have the judge Mrs. Hall’s justified concluding the trial was uncertainty failure from the created to do so resulted entry her of divorce and the husband’s of a final authority necessity contesting of that order. No is cited right object proposition for the Hall waived her that Mrs. argue set by proceeding to Hall’s motion it at the time hearing upon interposing it motion strike. for a instead of a most, any grounds would be event, objections, In all of these judge in an abuse for of discretion procedure required setting dispense with failing to include a tran ease for The record does not trial. proceedings rulings in which the various script of the made, may not an abuse of discretion motions were Equalization, 42 (Meyer Board presumed. v. State of for mandate also is directed toward petition Hall’s Mrs. motions hearing upon Hall’s prohibiting a authorized attorneys’ fees. The alimony, costs and “ any [d]uring pendency of action” to make those awards 137.3.) Code, 137.2, (Civ. Section of for divorce. §§ pending that an action is states the Code of Civil Procedure until its final deter of ‘‘from the time its commencement upon appeal.” mination 137.2 and 137.3 are a
Sections
restatement of former section
Superior Court,
137 of the Civil Code. Lerner v.
38 Cal.2d
321],
authority
superior
considered the
court to award counsel fees and costs in connection
prohibition
of
wife for writ
application
pending
appeal from an
order modification of the
terms
relating
custody
decree
divorce
final
of the children.
pointed
It
.
phrase
was
out
‘‘under section 137 . . the
’
therein,
pending,
‘when an action for divorce is
embraced
growing out of
divorce action
many
proceedings
diverse
(P. 685.)
arising after
of a final decree.”
reviewing
involving
several decisions
awards
counsel
After
during
pendency
proceedings
fees and costs
modify
permanent alimony or
enforce or
awards of
to con
provisions
property
agreement,
strue the
of a
settlement
attorneys’
properly
court concluded that
fees and costs
were
said,
principle,” it
allowed. “On
“there is no difference
*6
compelled by
a
between actions which woman is
her former
by
appeal
proceeding brought by him
husband to resist
a
modify
custody
alimony
to
a
or
award and
actions which
compelled
prohibition
prevent
improper
she is
to seek
to
685-686.)
(Pp.
modification of such awards.”
support the contention that
Lerner case and authorities cited
present
authority
in the
the
action has
to award
attorneys’
necessary
Hall the
costs
to Mrs.
fees and
to enable
prosecute
(Ac-
permanent alimony.
her to
her demand for
;
36,
42
44
Dexter,
cord :
v.
Cal.2d
P.2d
Dexter
[265
873]
Wilson,
107,
671].)
Wilson
33 Cal.2d
v.
P.2d
[199
Similarly,
alimony
temporary
awards of
after
interlocutory
(Nel
upheld.
the
of an
decree have been
Nelson, 7
449,
[during
son v.
Cal.2d
P.2d
the
[60
982]
appeal
granting
husband from
the
an order
the wife’s
Bernard,
;
to
final
Bernard
motion
vacate the
decree]
Cal.App.2d
[pending
hearing upon
P.2d
[179
625]
application
for
the wife’s
made after the
;
interlocutory
but before a final
decree
DeLeshe
decree]
DeLeshe,
517,
Cal.App.2d
P.2d
[pending
931]
modifying
appeal
interlocutory
from an order
the
decree]
45,
Kellett, 2
in Kellett
cases cited
Cal.2d
P.2d
interlocutory
[pending appeal
decree].)
By
from the
here, during
pendency
pro
principles,
same
the
ceeding
fix
the amount
to
awarded
power
the trial
temporary
to Mrs.
court has
to allow
alimony.
Court,
Superior
Wilson v.
266], nor 489], Harrold v. contrary states rule. The Wilson case considered the effect incorporate expressly in the final decree the of a failure to provisions judgment relating perma of the alimony. applied controversy nent The rule in the between might a final decree be entered under the Harrolds was that despite presented pendency there the circumstances rights community of the litigation as to the property. The court whether such action did not decide proper would be relating an issue pending, or, entered, is if such a could be what might right its effect to receive either permanent alimony. or question
An additional is raised Hall as to the circum- which be considered in stances amount permanent alimony and the time when such an award should operative. position portions It become is his appeal from which decree no was taken are right now final and fix Mrs. Hall to as of the specified payments therein the commencement of his Upon therefor. a retrial to determine the of such amount payments, maintains, judge will be limited he to a consideration the circumstances the date of Mrs. Hall asserts that all of the circum- trial. retrial, arising stances, including those between the trial and a may be properly considered. theory, compensation
In considered to be injured spouse resulting the loss the other’s (Arnold obligations relationship. breach of the marital 885-886 Arnold, right depends to receive not alone But it opposing party, for the fault of granting of a divorce *7 upon that the circumstances of the but also a (Civ. 139; Code, Bowman v. justify award the made. § 751, 808, Bowman, 246].) 29 811 170 A.L.R Cal.2d [178 action, spouse in divorce a Despite prevalence his the alimony in may right no to the absence acquire (Puckett Puckett, 21 it in the decree. v. provision of a Howell, 45, Howell v. Cal. 770, Am.St.Rep. 70].) P. 47 [37 Hall, supra, portion the In Hall v. the of alimony provided dealing that judgment with plaintiff pay support for her and “the defendant to the ($350.00) Fifty per sum of Three Hundred the maintenance day 6th month, or of each calendar on before month 1952; July and until order of commencing 6, further judgment Implicit in the is the determina- ...” the Court. justified but not award made tion that the circumstances other, undisclosed, some was entitled to amount that Mrs. Hall upon appeal from of a retrial that Hall’s in the event issue. plain- in of judgment . . . rendered favor part of the “that Hall, awarding plaintiff said Three M. Hundred tiff Gertrude ($350.00) per support month for her Fifty Dollars placed maintenance ...” sufficiency in issue the of the evi- justify dence portion judgment. to of the The reversal judgment predicated upon was the conclusion that the justify circumstances did not the award. But this court did not decide nor infer that the wife to would be entitled some lesser amount again when evidence presented regard in rights. contrary, her On the particularly in view of might shown, other circumstances justification which might awarding be found for support no amount and main- tenance. Code,
Under section 139 of judge the Civil ahas broad discretion in fixing both amount alimony and the in paid. manner which it shall be It is con sidered practice to be the specify periodic better payments 62, (see Tremper Tremper, Cal.App. 868]), v. P. may but the require payment also lump sum. (Honey Honey, 759, Cal.App. 250].) P. The only placed by limitations upon the section the time in which the order for operative shall be are the allow spouse ance must be made life; “for his or her or for period such shorter just”; as the court deem also that “upon allowance terminates the death -of obligor or remarriage party.” of the other Generally, periodic payments commence effective date of the decree; but it is not an abuse of payment discretion to direct ‘‘ appearance from the of the defendant action, (Sharon Sharon, or its commencement” 1, 345]), jurisdiction 75 Cal. P. or to reserve con sider it at some after of divorce. (See McCaleb, McCaleb Cal. judge may circumstances which the trial consider “practically include everything legitimate bearing which has a present pros pective relating (Hall matters parties.” lives both 442.) Hall, supra, 42 Cal.2d To limit the court to a consid eration of the circumstances at the time place wholly trial unjustified would artificial and restric upon the exercise of tion his discretion. Necessarily, looks Unquestionably, an award to the future. judge were to fix *8 as of the date of the considering decree presently without exist ing he would entitled be to consider them in circumstances possible connection with a modification of the award. To restrict him in suggested by the manner Hall could result only superfluous in proceeding. modification
Finally, some expressed concern is payments that previously made stipulation to Mrs Hall pursuant and an award alimony pending may overlap a retrial required those under an permanent alimony. award of It presumed to be the court payments will consider such in framing any decree for give and such proper may just. credit for them as discharged alternative writ is peremptory and the writ denied.
Gibson, J., J., Shenk, Traynor, J., Spence, J., con- C. curred. J., CARTER, Concurring Dissenting. in concur —I petitioner
conclusion that is not entitled to a writ of mandate agree, however, here. I do holding not with the therein that court, alimony, the amount of should not be limited to a consideration of the circumstances at the time the decree of divorce was granted. provides 139 of the
Section Civil Code that the trial court may make such suitable allowance to the wife as the court may just, having regard “deem to the circumstances parties respectively; and the court from time to time modify respects. its orders these In ...” Hall v. P.2d 249], we reversed the the trial court insofar as per it awarded Mrs. Hall $350 for her month Such a reversal maintenance. large the matter set and remanded part of the cause for a new trial. On the retrial of awarded, I escape the amount of to be see no trial court is the conclusion that the limited to a consideration they circumstances of the as existed at the time We held that award was made. the amount to Mrs. Hall at that time awarded constituted abuse. part on the court under facts then discretion provides may, prevailing. The code that the court from modify time, respect support provi its orders must, however, by it. The modification made sions (Bradley Bradley, Cal.App. proper 237]) changed that conditions have since the 638 [181 (Grant Grant, Cal.App.2d entry of the initial order Triest, 130]; Triest v.
387 2]); or become only P.2d such as have arisen have facts may party known to the since the of the decree be Bradley, (Bradley Cal.App. basis of modification ; Ralphs Ralphs, Cal.App.2d 237] 592]). P.2d
At interlocutory granted time decree was Hall, allowance for the cir- support made to Mrs. prevailing the award cumstances then led us to conclude that was excessive and of discretion. constituted an abuse Since Hall, time, Judge judge, as a federal has received district salary. an increase in no reversal this Had there been Hall, upon modification, court, proper application for Mrs. might changed have been able that because of circum- to show prior stances she was entitled to a modification order The earlier as to future installments. order would, however, have been final as to accrued installments ; (Zaragoza Zaragoza, Cal.App.2d P.2d 162] v. Stevens, Cal.App.2d Stevens Steele Steele, 63]). It seems most support, obvious here that on the retrial of the matter of a consideration of the court must limited to they originally any circumstances as existed and that modifi- proper changed cation must be made changed circumstances and date the time such cir- say cumstances. This is not to that a new action must brought multiplicity suits, avoid because to a court, sitting equity, may consider all related matters brought to its clearly attention. It should be understood, however, that any salary by Judge increase in received Hall since the time decree should not be considered trial court in its retrial matter originally as awarded. If salary this increase in should prompt the trial court to feel that an increase in allowance should be made to Mrs. such increase should not be retroactive to the award was made because of the prevailing. circumstances then In other words, my it is view award of must be based circumstances of at the date of the decree, any modification of such award change not take effect until the date a in such circumstances is shown exist. The trial court may, of course, retry the issue of any and hear application for modification at the same time.
Schauer, J., concurred.