266 P. 283 | Cal. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *789 The plaintiff and the defendant herein were married in November, 1902. In 1912 the plaintiff sued the defendant for divorce on the sole ground of wilful neglect. The complaint alleged the weekly earnings of the defendant and that there was, as the issue of said marriage, a minor child, Gladys Madeline Parker, aged seven years. The prayer was for a decree dissolving the bonds of matrimony; that the plaintiff have the care and custody of the minor child and "for such other and further relief as to the court may seem proper." There was no specific prayer for alimony or for maintenance of the child. On May 21, 1912, the default of the defendant was entered for failure to answer after his demurrer had been overruled. The cause came on for hearing as a default matter on June 10, 1912, whereupon an interlocutory decree was granted. This decree contained the usual provisions entitling the plaintiff to a final decree of divorce upon the expiration of one year from the entry of the interlocutory decree and provided that the plaintiff have the custody of the minor child. In addition, the interlocutory decree set forth the following: "It is further ordered that the defendant pay to plaintiff the sum of forty dollars ($40.00) per month for the support of plaintiff and Gladys Madeline Parker, the minor child of said marriage." On May 28, 1914, a final decree of divorce was made and entered incorporating the same provisions for the custody of the minor child and for the support of the plaintiff and said child as were contained in the interlocutory *790 decree. On June 5, 1914, or eight days after the entering of the final decree, the plaintiff married one E.W. Pappert at the city of Visalia. The plaintiff and said Pappert lived together as husband and wife until May, 1923, when they separated. On May 15, 1923, the plaintiff instituted an action for divorce against said Pappert and obtained an interlocutory decree therein on October 24, 1925. Prior to the commencement of the second divorce action the plaintiff and said Pappert entered into a property settlement wherein and whereby certain real property in the city of Oakland was set apart to the plaintiff, from which she received an income of $75 per month. In addition to the property settlement the court, upon the institution of the second divorce action, awarded temporary alimony to the plaintiff in the sum of $50 per month, said payments to continue to May 1, 1925. The temporary alimony was paid by Pappert as required. On the twenty-seventh day of May, 1925, the plaintiff, under the name of Emma Parker, made an affidavit and presented the same to a judge of the superior court in and for the city and county of San Francisco, in which the original decree of divorce had been granted. In this affidavit she set forth the entry of the judgment in the original divorce action and the requirement therein that the defendant, J.W. Parker, pay to the plaintiff the sum of $40 per month "for the support of plaintiff and Gladys Madeline Parker." It was further averred that none of said payments had been made except the sum of $480 and that there was then due and owing to the plaintiff on account of said judgment the sum of $4,360 and interest thereon, said sum being the amount claimed to be due from June 10, 1913, to and including July 10, 1922. The affiant prayed for an order directing execution to issue for the sum of $4,360 and interest. The application, made ex parte, was granted and the judge made an order directing that execution issue. Pursuant to said order the clerk of the court, on May 27, 1925, issued the execution directed to the sheriff of Sacramento County where the defendant herein was engaged in business.
On June 5, 1925, the defendant made a motion, duly noticed in the superior court at San Francisco, to vacate the order of May 27 directing execution to issue and to recall the execution issued on that day. This motion was *791 supported by the affidavit of the defendant and was made on numerous grounds, some of which are and others of which are not now urged on this appeal. The plaintiff filed a counter-affidavit on the hearing of the motion at which both parties were represented. The matter was taken under submission and under date of September 23, 1925, the court made an order denying said motion. In this order it was recited that the court, on the hearing of the motion, had received evidence, "oral and documentary adduced by the parties respectively," and the court found from such evidence that the sum of $560 had been paid by the defendant on account of the judgment in said action; that on the fifth day of June, 1914, the plaintiff intermarried with said E.W. Pappert and ever since said date and up to on or about the twenty-fourth day of October, 1924, the plaintiff and said Pappert had lived together as and continued to be husband and wife, and that the minor child became of age on the tenth day of August, 1922. It was then ordered as follows: "It is therefore ordered, adjudged and decreed that said judgment and execution be and the same are hereby modified so that the plaintiff may recover under said judgment the sum of $20 per month for the period of five years immediately preceding the 10th day of August, 1922, to wit: the total sum of $1,200 exclusive of the amount heretofore paid by the defendant to the plaintiff." The order also authorized and directed the sheriff of Sacramento County to amend said execution so that the plaintiff should recover the sum of $1,200 in lieu of the amount stated in said execution. The motion of the defendant to vacate the order directing the issuance of execution and to recall the same was denied.
The defendant has appealed from the whole and each part of said order of September 23, 1925, and the plaintiff has appealed from that portion of said order modifying and reducing said judgment and execution to the sum of $1,200.
[1] The appeal of the defendant will first be considered. It is contended by him that the court was without jurisdiction to direct an execution on said judgment. It is insisted that said judgment is void on its face, for the reason that the relief therein granted was in excess of the relief demanded in the complaint. The claim is based on the fact that the complaint did not demand support for the plaintiff or the minor child and that the judgment included a provision *792
for such support in alleged contravention of section 580 of the Code of Civil Procedure which provides: "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint"; also of subdivision 2 of section 585 of the Code of Civil Procedure which provides that in such cases the plaintiff may, on the default of the defendant, "apply to the court for the relief demanded in the complaint." The defendant also cites numerous cases in support of his contention, including Brooks v. Forington,
[3] It is further urged that the original order for the issuance of the execution is void as having been made without notice to the defendant. It has been the law of this state since 1861 that the court, under section
[5] During the marriage of the plaintiff with Pappert she was presumptively supported by him. (Cohen v. Cohen, supra; McKay
v. McKay,
[7] It is contended by the plaintiff that the portion of the order of September 25, 1925, directing the modification of the original judgment so as to provide that the plaintiff recover $20 per month, instead of $40 per month as in said judgment originally provided, was beyond the power of the court. The original judgment had long since been final. No appeal was taken therefrom and in the intervening years no application ever was made by the defendant for a modification thereof. It is beyond question that the court had jurisdiction in the original proceeding for divorce upon a proper pleading and evidence to award support to the wife and to the minor child and that the court retained jurisdiction to modify its order for such support from time to time also upon a proper application and showing, the said modification to operate prospectively (Secs. 138, 139, Civ. Code; Harlan v. Harlan, supra), but no authority has been cited and we have discovered none which would authorize or justify the court merely on an application under section
On the showing developed during the proceeding in the trial court, it is clear that the plaintiff was not entitled to the order directing execution to issue and the court should have granted the motion to set aside said order and to quash the levy under the execution. The order denying that motion should therefore be reversed, with directions to the trial court to grant the same. Likewise, the order modifying the judgment from which the plaintiff has taken an appeal should be reversed for the reason that it was beyond the power of the court so to modify said judgment as to make said modification operative on payments already accrued under the judgment. It is so ordered.
Richards, J., and Langdon, J., concurred. *797