125 Cal. 65 | Cal. | 1899
A decree of divorce was rendered May 29, 1884, between the parties hereto upon the application of the plaintiff and for the offense of the defendant, and by the decree the care, custody, and control of the two minor children of the marriage, then aged five and three years respectively, was awarded to the plaintiff. No provision was made in the decree for the maintenance of the children or for the support of the wife. In 1886 the plaintiff became the wife of R. S. Polastri, and thereupon her husband took the children into Ms family,
1. Whether the court was authorized to modify the judgment entered in 1884 by adding thereto the provision requiring the defendant to provide for the care, custody, and education of the children is to be determined by a construction of the provisions of the code upon this subject. In jurisdictions where procedure is not regulated by statute, but is according to the rules and practice of the court, such authority is maintained upon the ground that when chancery has once acquired jurisdiction over the subject matter it will continue to exercise that jurisdiction so long and as often as occasion shall require for the purpose of making its decree effective. (Holt v. Holt, 42 Ark. 495; Plaster v. Plaster, 47 Ill. 290.) But, where the procedure is regulated by statute, courts have not this inherent power, and their jurisdiction over the subject matter of the action, as well as over the parties, terminates with the entry of final judgment therein, except for the purpose of enforcing the judgment and carrying out its provisions, or for correcting any mistakes in the record upon proper application therefor. The judgment becomes final upon its entry, not only as to the matters actually determined, but also as to every other matter which the parties might have litigated in the cause and have had decided. (Kamp v. Kamp, 59 N. Y. 212.) In a majority of the states, however, express authority is given to the court by statute to make changes in its judgments from time to time as circumstances may justify. (See Buckminster v. Buckminster, 38 Vt. 248; 88 Am. Dec. 652; Campbell v. Campbell, 37 Wis.
“Sec. 138. 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.” “Sec. 139. 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.”
In Howell v. Howell, 104 Cal. 45, 43 Am. St. Rep. 70, it was held that when the original decree of divorce made no provision for an allowance to the wife for her support, the court had no jurisdiction thereafter to make an order compelling the husband to pay alimony to her; that, if no order for its payment was included in the decree of divorce, there was nothing to “modify,” and that such subsequent order was void. Under
2. McKay v. Superior Court, supra, was an original application to this court for a writ of review, and the only question presented for consideration was the jurisdiction or power of the superior court to make the order; but, whether the facts before the court justified it in the exercise of this power, or whether the order was broader in its scope than was justified by the evidence presented therefor, was not involved or presented for consideration. These questions are presented upon the present appeal, and upon an examination of the evidence before the superior court we are of the opinion that it was not authorized to include in its order any direction for the payment by the defendant of
The provisions of section 138 are in their nature prospective, and the use of the term “direction” instead of “payment” implies that the action of the court is to be limited to the “care, custody, and education” which the children are subsequently to receive under its directions. If the original decree had contained a provision upon this subject, such provision would have been the measure of the rights and liabilities of the parties to the suit until the court should make some modification thereof; and, until the court had given some direction for the subsequent care and education of the children, there could be no liability on the part of the defendant for the expenses that might be incurred thereunder. Manifestly, the court could give no direction for the care and education of the children prior to its order, and, in the absence of such direction, no liability would exist against the defendant, and no obligation could be created against him. In Kendall v. Kendall, 5 Kan. App. 688, the minor children had be'en awarded to the mother, but no provision was made in the decree for their support. Sub
The question of the father’s liability for the care and support of his children after a decree of divorce, in which their custody has been awarded to the mother, has been frequently presented in actions brought therefor by strangers, or by the mother, and courts have almost invariably held that an action against him to enforce such liability could not be maintained. (Finch v. Finch, 22 Conn. 411; Ramsey v. Ramsey, 121 Ind. 215; Burritt v. Burritt, 29 Barb. 124; Harris v. Harris, 5 Kan. 46; Hancock v. Merrick, 10 Cush. 41; Brown v. Smith, 19 R. I. 319; Hall v. Green, 87 Me. 122; 47 Am. St. Rep. 311.) A contrary holding was made in Pretzinger v. Pretzinger, 45 Ohio, 452, 4 Am. St. Rep. 542, hut, as was said in Brown v. Smith, supra, this case is opposed to the preponderance of American authorities upon the subject; and in a subsequent case in the same state (Fulton v. Fulton, 52 Ohio, 229, 49 Am. St. Rep. 720), the ruling therein was materially modified. So far as the right of the wife to recover for past expenses incurred by her is involved, the principle is the same whether the application is made in an independent action or through a motion in the original case. The jurisdiction which the court retains in the original case, either by express reservation in its decree, or which it has by authority of statute, to modify its judgment with reference to the custody and education of the children, or to make a new order in reference thereto, is not for the purpose of reimbursing her for any expenditures she may have voluntarily made in that behalf, but to provide for such expenses as may be subsequently incurred by reason of the direction that may be
The order is reversed, and the superior court is directed to make such order in the premises as will be consistent with the views herein expressed.
Garoutte, J., and Van Dyke, J., concurred.
Hearing in Bank denied.