79 Cal. 511 | Cal. | 1889
—This is an action for divorce on the
ground of extreme cruelty. It' is alleged in the complaint that there are-two female children, the issue of the marriage, one under four and the other under two years of age; that plaintiff has no property or means of support; and that defendant has separate property of the value of five thousand dollars, which yields him an income. The court found that plaintiff was entitled to a divorce, and the custody of the children; that defend
The judgment dissolved the marriage between the parties, and awarded the custody of the children to the plaintiff, and proceeded as follows:—
“And it is further ordered, adjudged, and decreed that defendant pay to plaintiff’s attorney the sum of one hundred dollars as counsel fees of plaintiff in this action, and that the said defendant pay to the clerk of this court, for the use of the plaintiff, as plaintiff’s costs in this action taken, the sum of $28.05, and that the said defendant pay to said plaintiff the sum of $1,500 in full for all future alimony for the support of herself and her two minor children, and that said sum to be paid, amounting in the aggregate to the sum of $1,628.05, be and the same is hereby declared a lien on the following described real property which is hereby declared to belong to the defendant.....That all of said sums may be paid to the party entitled thereto, or to the clerk of this court for their use, and if the same be not paid, and receipts therefor filed with the said clerk within twenty days from the date of this decree,, execution or*514 order of sale of the said property may issue thereon, on demand of the plaintiff, under which execution or order of sale the said real property, or so much thereof as will satisfy plaintiff’s demand, to wit, $1,628.05, may be-sold in the manner prescribed by law for the sale of real property under execution.”
From this judgment defendant appeals, and the case is brought here on the judgment roll.
The judgment is objected to on two grounds: 1. It is claimed that it is void in so far as it awards counsel fees and costs, because it directs the money to be paid to the attorney and clerk; and 2. It is claimed that the court had no power to award, and abused its discertion in awarding, alimony in a gross sum.
In support of the first point, the case of Sharon v. Sharon, 75 Cal. 37, is cited. In that case an order was made that defendant pay as counsel fees, on or before a day named, “the sum of fifty-five thousand dollars; that is to say, twenty-five thousand dollars to Messrs. Tyler & Tyler or order; ten thousand dollars to George Flourney or order; ten thousand dollars to Walter Levy or order; ten thousand dollars to David S. Terry or order; and five thousand dollars to R. P. Clement or order; and in case any of such payments are not made on or before the time herein fixed, then the party or the parties entitled thereto shall have execution therefor, pursuant to section 1007 of the Code of Civil Procedure of the state of California”; and it was held that this order “was a direct judgment for money in favor of persons not parties to the suit, and to that extent was irregular and void.”
In this case there was no direct judgment for money in favor of any one but the plaintiff. The finding was that “defendant should pay her (the plaintiff) the sum of one hundred dollars as her counsel fees,” and “all her costs,” and the judgment simply directs him to pay the one hundred dollars to plaintiff’s attorney, “ as
As to the second point, the Civil Code (section 139) provides as follows: “When 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 question is, Had the court the power, under this section, to require a gross sum to be paid to the plaintiff for her support? We think the language broad enough to confer this power. It will be observed that the allowance may be for the wife’s support during her life, and there is nothing limiting it to periodical payments. If it were so limited, it Would be possible, where no security had been required, for the husband to dispose of all his property, and then go away or die, and thus defeat the allowance altogether. And this has been the practical construction of similar statutes in many other states. In Burrows v. Purple, 107 Mass. 432, Jus
In Jeter v. Jeter, 36 Ala. 391, a sum of money in gross was decreed to the wife under a statute which reads as follows: “If the wife has no separate estate, or if it be insufficient for her maintenance, the chancellor, upon granting a divorce, must decree the wife an allowance out of the husband’s estate, taking into consideration the value thereof and the condition of his family.” And it was held that the word “ allowance,” as used in the statute, authorized a decree for a sum in gross. So in Piatt v. Piatt, 9 Ohio, 37, the same term was used in the statute, and it was held that under it the court was authorized to render a decree for a gross sum, or for installments payable at stated intervals.
There are other cases to the same effect which might be cited, but we think the above sufficient.
Assuming, then, that the court had power to make an allowance of a gross sum, is there anything here showing an abuse of its discretion ? We think not. The sum
We therefore advise that the judgment be affirmed.
Foote, C., and Vanclief, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.
