This is аn appeal by plaintiff from an order made long after judgment purporting to modify both the interlocutory decree and the final decree of divorce by striking out therefrom the provisions therein for the payment of monthly alimоny by the defendant to the plaintiff for the support of the latter’s two minor children. The plaintiff was a widow with two minor children by her first husband and married the defendant, who thereafter legally adopted these children by proceedings pursuant to the pro-' visions of the Civil Code, section 221 et seq. Thereafter differences arose between the parties, and on December 15, 1920, they entered into an agreement reciting that they had resolved to live separate and apart and had “mutually agreed to divide the community property as follows.” Then followed provisions for the equal division of the community property, and then the following provisions: “Said party of the second part [dеfendant] further hereby agrees to pay the sum of $100 a month for the support and education of Vincent A. Marshall and Monica T. Marshall, that is, $50 a month for each, until they reach the age of majority.
“Said party of the second рart also agrees that he will surrender the adoption of said children, and it is understood that Mrs. Emily G. Marshall shall re-adopt said children.”
Thereupon, on December 27, 1920, plaintiff filed a petition for the adoption of these two childrеn, together with the written consent thereto of the defendant, and a decree was thereupon entered purporting to accomplish the adoption of her own children by the plaintiff. Four days thereafter an interloсutory decree of divorce was rendered in favor of the plaintiff by default, which awarded the custody of the two children to the plaintiff, but did not refer to them as minor children or as the children of the parties, and contained nо finding or recital of fact that they were the children of the parties. It made the same provision for
*764
the payment of alimony and substantially the same provisions for the division of the property as were contained in the сontract between the parties. Thereafter and on January 13, 1921, plaintiff and defendant entered into another agreement reciting the entry of the interlocutory decree of divorce and providing: “Whereas said parties hereto have agreed to settle their property rights in accordance with this agreement as amendatory of said interlocutory decree, and it is hereby agreed between them as follows.” Then follow provisions for a somewhat different division of the community property, but no mention of the subject of alimony. The defendant paid the alimony as provided in the first contract and in the decree for twenty-six months thereafter, a final decree having in the meantime been entered containing the same provisions respecting the payment of alimony and division of property as were contained in the interlocutory decree. On December 1, 1922, the defendаnt moved for an order modifying the interlocutory and final decrees by striking therefrom the provisions for the payment of alimony on the grounds “that said order was obtained by misrepresentations made to the court; that the court had nо jurisdiction to make said order; and that said order is oppressive and unreasonable.” After the hearing the court granted the motion and made the order upon the ground “that at the time of the issuance and entry of the interlocutory decree of divorce and at the time of the issuance of the final decree of divorce herein there were no children of the marriage of the parties hereto. ...” This order was evidently predicated uрon the conclusion that the adoption of the two children by their own mother changed their status so that they were no longer the children of the parties to the divorce action and that, therefore, the court in the divorce proceeding had no jurisdiction to award alimony for their support. This conclusion was rested upon the authority of
Younger
v.
Younger,
The order appealed from herein, purporting to modify the interlocutory decree and final decree, was made long after the expiration of six months. To the extent that such order was made solely upon the ground that the provision for alimony as originally included in the decrees was void as in excess of the jurisdiction of the court, we think it was erroneous. The trial court in the divorce proceeding (which was upon the ground of extreme cruelty) had jurisdiction and power to divide the community property between the spouses or to award all оf it to the wife, or to award her alimony in lieu of a division of the property, or in addition thereto, regardless of the question of the existence of children of the marriage of said parties. (Civ. Code, secs. 139, 141, 142, 146, 147.) It seems, therefore, that the provision for the application of the alimony thus awarded, to wit, for the support of the two children, may be regarded either as surplusage or as error. If the former, it could be disregarded; if the latter, it became final by the failure to apрeal therefrom. Of course, under sections 138 and 139 of the Civil Code the court, having awarded alimony in a divorce proceeding, retains jurisdiction to vacate or modify the same in the exercise of a sound discretion. But it aрpears with reasonable certainty from the record herein that the modification here appealed from was not made in the exercise of such discretion, but was made solely upon the ground that the original provision was void.
There is another question involved herein which has not been touched upon in the briefs of counsel, namely, the question of the validity and effect of the proceeding whereby the mother purported to adopt her own children. Our Civil Code provisions respecting adoption contain no definition of the term, but all of the definitions seem to be in substantial agreement to the effect that it is the act by which relations of paternity and affiliatiоn are created and recog *766 nized as legally existing between persons not so related, by nature or by law. In other words, it is a proceeding by which the adopting parent assumes a parental relationship toward the child of another. (See 1 Corpus Juris, 1370; 1 R. C. L. 592.) It seems unthinkable that one who is both the natural mother and the legal mother of a child can legally adopt such child. The natural mother of a child could legally adopt such child only in a ease wherein her parental relationship had theretofore been severed as a matter of law, and this brings us to the question whether or not the adoption of plaintiff’s two children by the defendant, her husband, had the effect of legally severing her parental relationship toward the children. We do not think that it had this effect, under the circumstances of this case, notwithstanding the provisions of Civil Code, section 229, that “the parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all respоnsibility for, the child so adopted, and have no right over it.” If, after the adoption of plaintiff’s two children by her husband and no further proceedings had, the plaintiff had died, would we hold that her two children were not legally her children and were not her heirs f It seems unlikely. It is plain from the record of the adoption proceedings herein that the parties thereto did not intend thereby to sever the parental relationship between the mother and the children. The husbаnd’s petition for adoption recited (italics added) that “Your petitioner herein is a fit and proper person to be allowed the joint custody and control of said minor children . . . with that of the right of their mother to have such custody and control. . . . Wherefore your petitioner prays that this honоrable court make an order that the above named minors [be] adopted and that they be declared to be adopted by your petitioner, in that he shall jointly together with his wife Emily Gabriel Marshall be adjudged on such adoption as having the status оf the natural father of said minors. ...” The written consent to the adoption filed therein by the mother was to the effect “That the said John Charles Marshall adopt the said Vincent Anthony Marshall and Monica Thelma Marshall, minors, my children, as his оwn natural children and *767 that in conjunction and jointly with me act, maintain and have the legal status of a father and . . . shall jointly iviih me maintain the relationship of a parent to said minors herein mentioned.” The order for adoption ended as follows : “and that all other pеrsons shall be henceforth relieved of any parental duty towards and all responsibility for the said children and have no right or control whatever over them save that of the mother of said minors, namely, Emily Gabriel Marshall, wife of petitioner herein.” It seems рlain, therefore, that after the completion of this adoption proceeding the mother of the children still retained her parental relationship toward them, legally as well as by blood. If this be so, it would follow that the proceeding thereafter, whereby she purported to adopt these children, was an utter nullity. If it was not, it would follow as matter of logic, for example, that a wife could, with her husband’s consent, legally adopt their minor child and thus sevеr, as a matter of law, the parental relationship between such child and its father.
In
In re Williams,
We conclude, therefore, that the trial court had jurisdiction to include in its decrees the order for the monthly payments by the defendant which was included in both the interlocutory and final decrees and that the order vacating the same, which was made not in the exercise of discretion under section 138 or section 139 of the Civil Code, but as the setting aside of a void order, should be reversed and the cause remаnded with direction to the trial court to con- *768 aider the pending motion upon the merits thereof and to determine the same in accordance with its sound discretion. It is so ordered.
Lawlor, J., Lennon, J., Seawell, J., Waste, J., Richards, J., and Knight, J., pro tem., concurred.
Rehearing denied.