ROSHER v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 2, California.

ROSHER v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.†

Civ. 11206.

Decided: December 09, 1936

Joseph Musgrove, Fred O. McGirr, and Thomas H. Cannan, all of Los Angeles, for petitioner. Everett W. Mattoon, Co. Counsel, Fred M. Cross, Deputy Co. Counsel, and Flint & MacKay, all of Los Angeles, for respondent.

This is a review of a proceeding in which the superior court made an order finding petitioner guilty of contempt for failing to pay certain sums which he had been ordered to pay for the maintenance and support of his daughter.

A decree of divorce “for an offense of the husband” was entered against the petitioner on the 29th of December, 1923, awarding the custody of the daughter to petitioner's wife, who was the plaintiff in that action, and by said decree the said petitioner was ordered to pay $100 per month for the support and maintenance of the minor daughter of the parties, “said payments to continue until said minor child shall arrive at the age of majority.” On the 8th day of April, 1927, the court modified the order by raising the monthly payments from $100 to $150 per month and by changing the phrase “said payments to continue until said minor child shall arrive at the age of majority” to the words “commencing on May 1st, 1927, and continuing thereafter until the further order of this court, and it is further ordered that the Interlocutory Decree of Divorce is hereby modified in this regard.” The law at the time the order was made and at the time the modification was made fixed the age at which a female child reached her majority at her eighteenth birthday. By statute effective July 29, 1927, the age was raised to twenty–one years. Petitioner paid all sums required under the modified order until the daughter reached the age of eighteen years, which was on July 10, 1932, and up until the month of December, 1932, but willfully refused to pay further sums although able to do so for a period of thirty–one months, when the daughter reached the age of twenty–one years.

It is the contention of the petitioner that the respondent was without jurisdiction in the premises and acted in excess of its jurisdiction in adjudging petitioner to be guilty of contempt, and he contends that the words, “until the further order of this court,” did not extend the liability of petitioner to make the payments beyond the time when she attained the age of eighteen years––that to hold otherwise would be to give the law, extending minority, a retroactive effect as applied to the judgment and that as a matter of law his liability under the order of April 8, 1927, terminated when she reached that age.

Petitioner claims that the jurisdiction of the court to make the order is found solely in section 138 of the Civil Code, which at the time the order was made read as follows: “In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.” And he relies largely upon the following cases: Kendall v. Kendall, 122 Cal.App. 397, 10 P.(2d) 131; Tremper v. Tremper, 39 Cal.App. 62, 177 P. 868; Hale v. Hale, 6 Cal.App.(2d) 661, 45 P.(2d) 246. He does not discuss section 139 of the Civil Code, which reads as follows: “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.” It will be observed that the authority of the court under this section to order maintenance is in no wise limited to minor children nor to the period of their minority.

The contention of the petitioner that the court had no jurisdiction to make an order for support of the child which extended beyond the period of the child's minority was decided adversely to the petitioner in the case of Anderson v. Anderson, 124 Cal. 48, 54, 56 P. 630, 632, 57 P. 81, 71 Am.St.Rep. 17, and so far as we are able to discover the Supreme Court has not receded from the position therein taken. The Anderson Case was followed in the case of Younger v. Younger, 112 Cal.App. 445, 296 P. 1104. In the Anderson Case, supra, the Supreme Court said: “The point is made * * * that the daughter is of age, and nothing should be awarded for her support. * * * In her case it appears from the findings that she is residing with her mother, and that, although of age, she is dependent upon her parents for support. Section 136 provides that, though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife ‘and her children or any of them.’ [Section 139 of the Civil Code contains similar provisions where a divorce is granted for an offense of the husband.] It has been held, under a statute of Oregon somewhat analogous, that the word ‘children’ must be construed to mean ‘minor children.’ Fitch v. Cornell, Fed.Cas. No. 4,834, 1 Sawy. 156. But the court adds: ‘The reason is, they are no longer in the custody or under the control of their parents, nor are the latter bound to maintain them, except under peculiar circumstances, arising from poverty or sickness.’ The same intimation appears in Snover v. Snover, 13 N.J.Eq. 261, where the chancellor says: ‘From the evidence now before the court, I incline to the opinion that, if the daughter continues in health, the allowance for her support should cease when she attains the age of eighteen. I will hear an application on this ground from the father at the proper time.’ And so, in the present case, under any change of circumstances with reference either to son or daughter, the court may at any time make a modification of the judgment, if it hold that under the circumstances of the case the presence of the children influences the amount of the allowance. In this connection section 206 of the Civil Code is important, in the line of the intimations of the Oregon and New Jersey courts. That section provides that it is the duty of the father and mother of any poor person, who is unable to maintain himself by work, to maintain such person, to the extent of their ability. In view of the finding that the daughter is dependent upon her parents for support, we must presume that, from ill health or other cause, she is ‘unable to maintain herself by work.’ It does in fact appear in the testimony, without objection, that the daughter is an invalid. From the above reasons, which are sufficient to support the judgment on this point, it becomes unnecessary to determine.” (Another question raised by respondent.)

Thus it appears that an order extending support and maintenance beyond the minority of a daughter was approved, with the admonition that under any change of circumstances with reference to the daughter “the court may at any time make a modification of the judgment.” The cases relied upon by petitioner are appellate court cases in which the order was “during the minority” of the child, or, on the other hand, are cases in which the court's attention had been called solely to Civil Code, § 138, and in which the trial court's jurisdiction to make an order under section 139 was not discussed. Petitioner relies greatly upon the following paragraph taken from the case of Rife v. Rife, 272 Ill.App. 404: “Complainant's contention that the incorporation in the decree of the words ‘until the further order of the court’ vested the court with authority to enter the order for support of the adult daughter is absolutely without merit. The inclusion of these words contained no grant of authority the court did not have without them. If they had been omitted the court could have exercised its authority just as fully and completely for the care and support of minor children, and no language used in the decree could possibly confer jurisdiction on the court to order support, in a divorce proceeding, for an adult daughter. In the language of the court in the Boehler Case, supra [125 Wis. 627, 104 N.W. 840], the attempt of the chancellor to order such support ‘was worse than mere error. It was extrajudicial. It was and is a nullity.”’ The answer is that the inclusion of the words “until the further order of the court” in the instant case was not an attempt of the court to confer jurisdiction upon itself to order support for an adult daughter under section 138 of the Civil Code; it was the exercise of authority which it then properly had under section 139 of the Civil Code. The order of April 8, 1927, as such, is not before this court for review. The facts and circumstances upon which that order was made are not before us, and we must assume that there were proper circumstances upon which the order was based.

The order of April 8, 1927, was a continuing order subject to modification in case there should be a change of circumstances which would warrant a modification. In any hearing for a modification of the order the fact that the legislature had changed the age at which a female child reaches the age of majority from eighteen years to twenty–one years would be a circumstance which might well be taken into consideration by the court along with any other fact or circumstance in evidence bearing upon the question of the advisability of modifying the order. Paraphrasing somewhat the language used in Moore v. Superior Court, 203 Cal. 238, at page 241, 263 P. 1009: The provisions of section 139 of the Civil Code are read into said order and, this being so, the order was not in the nature of a final judgment which determined the relation of the parties to each other or to the action or the subject–matter over which the court had thus retained all of the jurisdiction which it had during every stage of the proceedings. In the foregoing sense the trial court retained under said section, so read into its orders and decrees, the same jurisdiction over the parties and the subject–matter to which said section relates that it had and exercised prior to the making and entry of said order.

That the order was a continuing order and was so interpreted both by the parties and by the court is indicated by the following facts which appear in the record: For several months after the child reached the age of eighteen years petitioner continued to pay the monthly payments specified in the order. Thereafter and on April 9, 1935, the petitioner brought on an order to show cause why he should not be relieved from liability under the order of April 8, 1927, based upon the same grounds as urged herein. The court denied petitioner's application. No appeal was taken from this order. Again on July 8, 1935, the petitioner applied for and secured an order of respondent court directing the plaintiff in the divorce action to show cause why petitioner should not be relieved of liability subsequent to the time the child reached the age of eighteen years, and the respondent court on July 24, 1936, made its findings and order denying the petitioner's application for modification of the decree.

The petitioner also contends that because the child earned certain wages in the moving picture business as an actress during the period between her eighteenth and her twenty–first year this should be considered in this proceeding. Such facts were proper for presentation to the trial court as circumstances for the modification of the order. A transcript of the evidence is not before us and we must assume that all the facts were duly considered.

Order affirmed.

CRAIL, Presiding Justice.

I concur: McCOMB, Justice pro tem. I dissent: WOOD, J.