98 P. 32 | Cal. | 1908
In May, 1891, the superior court of Yolo County entered a decree granting to Lena J. Harlan a divorce from W.C. Harlan. The decree awarded to the wife, plaintiff in the action, the custody of the three minor children of the *343 parties, and awarded to her a portion of the community property. It was further decreed that "the property so awarded to plaintiff shall be in lieu of any further provision or alimony for her personal maintenance or support."
In April, 1895, Lena J. Harlan filed in the same action a petition for an order requiring the defendant to pay her the amount theretofore expended by her for the support, maintenance, and education of the children, "and a further periodical amount hereafter for the support and education of his said children." The defendant answered this petition, and, after a hearing, the court, in August, 1895, made an order that the plaintiff retain the custody of the children, and that defendant pay to plaintiff "for their support, education and maintenance" the sum of sixteen dollars per month for each child, or forty-eight dollars for the three, payments to commence on September 1, 1895. On September 11, 1895, the court made a modifying order directing the defendant to pay the plaintiff thirty-two dollars per month instead of forty-eight dollars.
Ten years later, in September, 1905, the plaintiff applied for an order directing that execution issue for an amount claimed to be due and unpaid under the order of September, 1895, and upon anex parte showing, the court ordered that execution issue against the defendant for $4,096.55. Thereupon the defendant moved to set aside the order of September 11, 1895, and the order directing execution to issue thereon. The court, reducing the amount for which execution was to issue to $4078.30, denied the defendant's motion, and ordered execution to issue for the last-named sum. From this order the defendant has appealed.
If the order of September, 1895, requiring the defendant to pay thirty-two dollars monthly to the plaintiff, was valid, there can be no question that the court had power at any time after the entry of the order, to direct execution to issue for the amount unpaid. (Code Civ. Proc., sec. 685; Harrier v. Bassford,
The appellant must, therefore, succeed, if at all, by showing the invalidity of the order of 1895, which the plaintiff was seeking to enforce by means of an execution. In this proceeding, which is clearly a collateral attack upon that order, the appellant is limited to the single contention that the court, in making the order assailed exceeded its jurisdiction, and that, in consequence, the order itself is void. In passing upon this contention, the question for decision is whether a court which had, in 1891, made a decree of divorce in favor of a wife, awarding to her the custody of the minor children, but making no provision for their support by the husband, retained power, after the time for appeal from the decree had passed, to make an order requiring the divorced husband to pay for the future "support, education and maintenance" of said children.
The answer to this question must be sought in sections 138 and 139 of the Civil Code. Section 138, at the time the judgment of divorce in this case was made and entered, read as follows: "In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same." The provision of section 139 is that "where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively, and the court may, from time to time, modify its orders in these respects." The proper construction of these sections has been the subject of consideration by this court in several cases.
Howell v. Howell,
McKay v. Superior Court,
The order considered in McKay v. Superior Court was again the subject of consideration in McKay v. McKay,
Shattuck v. Shattuck,
An endeavor to show a complete harmony and consistency in these various decisions would be a task of no little difficulty. *348 This much, however, may be said to be the clear and unequivocal result of sections 138 and 139, together with the opinions of this court dealing with those sections. When the superior court has made a decree of divorce, which has, by lapse of time, become final, and has not, in the decree itself, reserved jurisdiction to make a supplemental decree, its only power to make further orders affecting the property rights of the parties is that declared in sections 138 and 139 of the Civil Code. Where the divorce is granted for an offense of the husband, and the decree requires him to provide for the maintenance of the children or the support of the wife, the court may at any time, under section 139, modify the order making provision for such maintenance or support. This section (139) does not, however, authorize the making of any order after final judgment where the decree itself contains nothing on the subject of maintenance of children or support of wife. Section 138, permitting the court to give directions for the custody, care, and education of the children, is not so limited. It authorizes action by the court before or after judgment, and where an order is made after judgment, the right to make it exists whether or not the subject of the additional order was touched upon in the decree. Section 138 does not assume to deal with allowances for the support of the wife, and it is clear, therefore, that such allowance cannot be made by order subsequent to the decree of divorce where the decree itself contains no provision regarding the wife's support. The power to give directions for the custody, care, and education of the children of the marriage, vested in the court by section 138, involves the right, not merely to declare who shall have the custody, and what shall be the nature of the care and education of the children, but also, by necessary implication, to require the payment, by one of the parties, of such sums as may be necessary in properly carrying out the objects contemplated by the statute.
There is nothing in any of the cases cited which conflicts with what we have so far said. And it would seem to follow that an order for the payment of money to be applied to any purpose which may fairly be said to be embraced within the phrase "custody, care and education of the children" may be made after a judgment of divorce, whether or not the decree has provided for these objects. But the Shattuck case holds *349
that an order for the "maintenance" of the children, subsequent to a decree which makes no provision for their maintenance, is not within the power of the court. If this conclusion be sound, it must be because "maintenance" is not included within "care and education." We are unable to see any force in this position. The word "care," as used in the statute, is, if not synonymous with maintenance, a broader term. (Kelly v. Jefferis, 3 Penne. (Del.) 286, [50 A. 215]; Christy v. Pulliam,
The order here in question directs payments for "support, education and maintenance" of the children of the marriage. The language is precisely the same as that used in McKay v. McKay, and if there be any valid ground of distinction between that case and Shattuck v. Shattuck, the jurisdiction of the trial court in this case may well be sustained on the authority of the McKay case. We believe, however, that there is no such ground, and that an order for the benefit of the children is equally within the jurisdiction of the court under section 138, whether it uses the terms "maintenance and support" or the broader and more inclusive expression, "custody, care and education."
We have already pointed out that the power to give "directions" for the custody, care, and education of children carries with it the power to require payments of money for these purposes. It is contended that, if this be so, the court can order money to be paid only where it has given some separate specific direction regarding the manner of such custody, care, or education, and the payment is necessary to carry out such direction. But we see no reason for giving this, or any, narrow interpretation to section 138 It is a statute enacted for the protection of the children. Whatever may be the effect of a decree of divorce as between husband and wife, it does not destroy the obligation of either parent toward the children. A law intended to make it possible to enforce this obligation should be liberally construed. When the court orders that money be paid by the father for the custody, care, or education of his children, it is, according to the ordinary sense of the words, and certainly within the meaning of the statute, giving "directions," for their custody, care, or education. An order that money be paid for certain purposes implies a direction to the recipient that it be used for those purposes.
For these reasons, it must be held that the order of 1895, requiring the defendant to make payments for the future "support, education and maintenance" of his children was within the jurisdiction of the court. It may be added that, with respect to decrees of divorce granted after May 2, 1905, the legislature has, by an amendment to section 138, taking *351 effect on that date, expressly included "maintenance and support" of children among the enumeration of the objects to be provided for by order made at, before, or after the hearing of an action for divorce. It is probable that the decision in Shattuck v.Shattuck was thought to make this change necessary in order to give effect to the real intention of the legislature. We are satisfied, however, that the same intention had been declared by the prior enactment.
The order appealed from is affirmed.
Shaw, J., Angellotti, J., Lorigan, J., Henshaw, J., and Beatty, C.J., concurred.