196 P. 101 | Cal. Ct. App. | 1921
This is an appeal upon the judgment-roll from a portion of an interlocutory decree in an action for divorce. The complaint in said action is in two counts, one founded upon the charge of desertion, and the other upon the defendant's willful failure to provide for plaintiff the common necessaries of life. In this latter count of her complaint the plaintiff alleges that the defendant has for a long time been employed in various positions in which he has been receiving salaries amounting to two hundred dollars or more a month; that the plaintiff has no means whatever and is in such physical condition as to render it impossible for her to accept employment of any kind so as to properly support herself or prosecute this action; that the sum of seventy-five dollars a month is a reasonable sum for temporary alimony, and certain other sums are reasonable for attorney's fees and costs. The prayer of her complaint is for divorce, and it embraces the further prayer for an order of court that the defendant "pay to the plaintiff the sum of seventy-five dollars per month as temporary alimony pending the trial of this action," and certain other sums for attorney's fees and costs.
The defendant's answer by specific denials puts in issue the foregoing averments of the plaintiff's complaint, and he also presents a cross-complaint containing specifications of alleged cruelty on the part of the plaintiff, and praying for a divorce on his part. To this the plaintiff answered with specific denials, and in her said answer prayed for general equitable relief.
A trial ensued, at the conclusion of which the court made its findings in plaintiff's favor on both counts of her complaint, and thereupon entered its interlocutory decree in the following form:
"Wherefore, it is ordered, adjudged and decreed that the said plaintiff is entitled to a divorce from defendant; that when one year shall have expired after the entry of this interlocutory judgment a final judgment and decree shall be entered granting a divorce herein, wherein and whereby the bonds of matrimony heretofore existing between said plaintiff and said defendant shall be dissolved, and at that time the court shall grant such other and *126 further relief as may be necessary to complete disposition of this action.
"And it is further ordered, adjudged and decreed that the defendant pay to the plaintiff as alimony the sum of thirty ($30) dollars per month, said sum to be paid on or before the 10th day of each and every calendar month, commencing with the first day of August, 1918."
[1] The appellant has taken this appeal from that portion of the above interlocutory decree which awards alimony to the plaintiff, and his contention upon this appeal is that the trial court was not entitled upon the pleadings and issues in the case to award the plaintiff alimony in its said interlocutory decree. This contention on the appellant's part is based upon his claim that the plaintiff in her prayer in her complaint limited her demand for alimony to "temporary alimony pending the trial of this action," and by so doing limited not only the issues in the case, but the power of the court to deal with the subject of alimony in making its interlocutory decree.
This contention is utterly without merit, and finds no support in the authorities which the appellant refers to as sustaining it. The issues in cases of this character are made by the pleadings taken as a whole, and these show the plaintiff to be entitled to alimony from the defendant if the averments of her complaint were supported by the proofs in the case. The findings of the court show them to have been thus supported. It is true that the plaintiff in the prayer of her complaint referred only to "temporary alimony," but this did not limit the power of the court to grant her the relief to which she was entitled and which she was awarded by the court's interlocutory decree, since by that decree the court expressly retained the power to grant in its final decree "such other and further relief as may be necessary to a complete disposition of this action." It will thus be seen that the alimony which the court awarded the plaintiff in its interlocutory decree did not purport to be other than temporary alimony, which it would have been entitled to allow under the most rigid interpretation of the prayer of the plaintiff's complaint. We hold, however, that the court was not limited by the somewhat inartificially drawn prayer of the complaint as to its power to require the defendant *127
to pay plaintiff alimony in the action based upon charges of desertion and failure to provide sustained by a showing of the plaintiff's necessities and of the defendant's financial ability to relieve them. It possessed that power under section 137 of the Civil Code, and it also possesses the power to modify its orders made in that respect from time to time under its express reservation of that power, and also under section 139 of the Civil Code. (Soule v. Soule,
The case of Howell v. Howell,
The respondent has filed no brief on this appeal. Had she done so this court would be disposed to fix a penalty upon the defendant for having taken and prosecuted a frivolous appeal.
Judgment affirmed.
Kerrigan, J., and Waste, P. J., concurred. *128