55 Cal. 2d 279 | Cal. | 1961
— Doris S. See and Charles See were married in 1942 and divorced in 1960. On March 14, 1959, they executed an integrated property settlement agreement dividing their property and providing for child support and monthly payments in lieu of alimony. The agreement was incorporated in the interlocutory decree. The final decree was entered on April 27, 1960. On June 27, 1960, Doris filed an amended complaint in an independent suit in equity to vacate the parts of the decree incorporating the agreement. She also sought temporary alimony, child support, and suit money.
Charles invokes the rule that temporary alimony cannot be granted unless there is evidence of an existing marriage (Reeves v. Reeves, 34 Cal.2d 355, 361 [209 P.2d 937]; Colbert v. Colbert, 28 Cal.2d 276, 279 [169 P.2d 633]) and the rule that alimony cannot be granted after a marriage has been dissolved in this state by a court that had jurisdiction over both spouses. (Long v. Long, 17 Cal.2d 409, 410 [110 P.2d 383]; Tolle v. Superior Court, 10 Cal.2d 95, 97-98 [73 P.2d 607]; Hudson v. Hudson, 52 Cal.2d 735, 744 [344 P.2d 295].) He contends that these rules are controlling here, since Doris attacks only the property provisions of the decree and does not attack the final divorce.
It is true in the present case that the marriage no longer exists. The cases requiring marriage as a prerequisite for alimony and those denying alimony after a final decree of divorce did not involve a dispute over the validity of the property provisions of a divorce decree. In Reeves v. Reeves, 34 Cal.2d 355 [209 P.2d 937], and Colbert v. Colbert, 28 Cal. 2d 276 [169 P.2d 633], the question was whether an action in which alimony was requested for the first time is barred when there is no existing marriage. In Long v. Long, 17 Cal. 2d 409 [110 P.2d 383], and Tolle v. Superior Court, 10 Cal.2d 95 [73 P.2d 607], the question was whether new actions for alimony can be maintained subsequent to undisputed decrees settling property and support rights. There is no merit in the contention that Hull v. Superior Court, 54 Cal.2d 139, 145 [5 Cal.Rptr. 1, 352 P.2d 161], overruled these cases. In Hull we merely held that entry of the final decree could not be refused because the husband had not fulfilled his obligations under an integrated property settlement incorporated in the interlocutory decree.
Temporary alimony and suit money may be granted, however, “ [d]uring the pendency of any action for divorce or for separate maintenance” (Civ. Code, §§ 137.2 and 137.3), and the crucial question in this case is whether an action for divorce is pending within the meaning of those sections. The quoted language was taken from former Civil Code section 137. “It was settled under section 137 that the phrase therein, ‘when an action for divorce is pending,’ embraced many diverse proceedings growing out of the divorce action and arising after entry of the final decree.” (Lerner v. Superior
Let the peremptory writ of mandate issue.
Gibson, C. J., Schauer, J., MeComb, J., Peters, J., White, J., and Dooling, J., concurred.
