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


Civ. 13190.

Decided: November 07, 1941

Joe Raycraft, of San Pedro, for appellant. Louis Lombardi and G. L. Funai, both of Los Angeles, for respondent.

This is an appeal by the husband from that portion of an interlocutory decree of divorce which awarded to the wife statutory support at the rate of $5 per month.

The broad question here is whether the trial court in decreeing a divorce for the fault of the husband acted in excess of jurisdiction where it awarded permanent statutory support to the wife without allegation or prayer therefor in the amended complaint, in a case where the husband had defaulted although duly served with process. A narrower question is whether the rule is the same or different where, as here, the husband answered the original complaint but filed no answer to the amended complaint upon which the cause was heard, as upon a default, and at which time the husband's counsel was actually present, but not, however, for the purpose of representing the husband but in connection with an entirely different case.

The facts as disclosed by the judgment roll, upon which the appeal is taken, are these: The original complaint for divorce filed by the wife alleged, among other things, the nature and extent of the community property, the earnings of the husband, the basis of the wife's need for support and the amount thereof, and prayed that she be awarded the community property and support money in a stated amount. To this complaint the husband filed an answer and cross–complaint. Subsequently the parties executed a property settlement agreement and thereafter their counsel executed a stipulation that the wife would file an amended complaint, that the husband would not proceed to trial on his cross–complaint and that the case might be heard upon the amended complaint as a default matter. Thereafter the wife filed her amended complaint and pursuant to the stipulation the husband's default was entered and the case was heard as a default matter. At the hearing the husband did not appear, but according to the recitals of the judgment the defendant was “present in court by his counsel [who] declined to offer any evidence”. In that connection it should be noted that counsel upon the oral argument before us stipulated that while defendant's counsel was present in court on another case he specifically stated in response to an inquiry of the court that he was not in court representing defendant. In view of the stipulation we feel we should treat the case upon the basis that while counsel was present in court he was not there in behalf of the defendant. On the hearing counsel for the wife presented the property settlement agreement for inclusion in the decree. The court declined to incorporate it but, in lieu thereof, approved it in part only and ordered the husband to pay support money at the rate of $5 per month until the further order of the court. This order was incorporated into the interlocutory decree, and as heretofore stated it is from that particular provision of the judgment that this appeal is taken.

In the setting of this background we approach a consideration of the ruling which the husband assigns as error. Initially it needs to be stated that in proceedings for divorce, unlike ordinary controversies, the state is a quasi–party. In its sovereign capacity the state is interested not only in maintaining the marriage unless good cause for its dissolution exists, but that there shall be a proper division of the community property of the parties and provision for reasonable future support of the spouse not at fault, so that the burden therefor shall rest on the husband, where it belongs, and not on the state. This policy of the state is enunciated in Civil Code section 139, which confers upon the court as the representative of the state the right and duty in the rendition of a decree of divorce in favor of the wife for the fault of the husband to “compel him 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”. If it be not strictly accurate to say that the statute is as much a part of the allegations of the wife's complaint as are other statutory allegations required to be set forth therein, nevertheless the statute conditions the right of the plaintiff to a divorce and the obligation of the husband upon a divorce, and so neither party may by contract or pleading emasculate the statute. The authority and power of the court to decree in accord with the statute must be deemed to be within the purview of the parties to a divorce case, be it contested or uncontested.

The theory that permanent alimony may be awarded to the wife against the husband stems from the ecclesiastical courts, where it was awarded in decrees a mensa et thoro. Alimony was awarded by those courts as an incident of the divorce and not upon an issue joined. In Stanton v. Stanton, 113 Cal.App. 462, 466, 298 P. 524, 525, the court declares: “But it is to be borne in mind that an allowance of alimony or money for the support of the wife is an incident to a divorce action and the determination as to allowance of alimony is not the trial of an issue in the case.” In this state the right to permanent alimony as an incident to divorce is codified in Civil Code section 139 as statutory support. So when an award is made by a court in this state, whether it be called “support” or “alimony”, it is now awarded, as it was in the ecclesiastical courts, as an incident of divorce; and it is no longer awarded here by virtue of any inherent right in the court but only by virtue of the statute.

If, as has been shown, alimony or statutory support is but an incident to a suit for divorce and not an issue which needs to be set up in the complaint, it follows that alimony or statutory support may rightfully be decreed in any case, whether it be contested or uncontested. To say that it may not be decreed by the court by virtue of Civil Code section 139 unless there is averment and prayer is to give the parties the right to control the effect, and indeed to eliminate, if they choose, the salutary provisions of that section, in which the state is interested. If the parties alone were concerned this might be proper enough, but as the state is a party to be considered it may not be done. As was said by the Supreme Court in Grannis v. Superior Court, 146 Cal. 245, 252, 79 P. 891, 895, 106 Am.St.Rep. 23: “* * * such an action [divorce] is really a triangular proceeding in which the husband and wife and the state are parties. * * * in such cases there can be no effectual waiver by the parties of any restriction established by law for the benefit of the public * * *.”

We come now to the contention of the husband that as he did not file an answer to the amended complaint the court could not decree alimony or statutory support, in view of section 580 of the Code of Civil Procedure, which provides that where no answer is filed by a defendant the relief granted a plaintiff “cannot exceed that which he shall have demanded in his complaint”. We think there are several answers to this contention in addition to what we have already said on this general subject. First: “Owing to the interest of the state and of society in divorce actions, generally speaking the rules governing pleadings in such cases differ from those usually applicable * * * in an ordinary civil suit.” 27 C.J.S., Divorce, § 104. To the same effect see Rehfuss v. Rehfuss, 169 Cal. 86, 145 P. 1020. Furthermore, in this state it should be observed that not only is the substantive law of divorce found in our Civil Code but the adjective law as well, rather than in the Code of Civil Procedure. In short, a rather complete divorce procedure being found as a part of the substantive law of divorce, procedure provisions applicable to other types of cases should not be deemed applicable unless needed, and particularly so where they may seriously cut down or even emasculate the divorce statutes such as Civil Code section 139. Grannis v. Superior Court, supra. In Deyoe v. Superior Court, 140 Cal. 476, 74 P. 28, 30, 98 Am.St.Rep. 73, in pointing out that the procedure for ordinary cases and divorce cases differs materially and that the former should not control, it was said: “It is evident that a proceeding to dissolve the marriage relation is, by reason of the interest of the state, intrinsically different from the ordinary action, and that the difference is such as not only to justify, but in many cases to necessitate, special rules of procedure. As has been said, a suit for divorce is sui generis. If the action were the ordinary action between two parties who alone were interested in the result, it might be difficult to give any good reason for a special rule * * *. But the interest of the state is sufficient to distinguish it from all other cases, and to make it one concerning which the Legislature is authorized to enact such laws of procedure as may rationally be held to protect that interest.”

But a brief word needs to be said concerning Bennett v. Bennett, 50 Cal.App. 48, 194 P. 503, on which the husband relies and which holds that section 580 of the Code of Civil Procedure controls the award of alimony in a divorce case. The decision arrived at in that case is not so perplexing once its background is set out. In that case the parties had entered into a property settlement agreement which was not referred to in the complaint, nor did the complaint pray alimony. As appears from the transcript of the evidence, the parties were both employed, but what they were earning was not disclosed. Nevertheless, without any information on the subject the trial court announced at the end of the hearing that it would award the wife $25 per month as support. Thereupon counsel for the wife protested that she did not wish the award and that it contravened the property settlement agreement. The court, however, directed that the provision be included in the decree. Thereupon the husband took an appeal from the award of alimony and in his brief contended that section 580 of the Code of Civil Procedure controlled. Counsel for the wife wrote the clerk a letter, which is with the record in that case, stating that the wife would not file a brief and hence that the case was ready for submission on appellant's opening brief. Without having the benefit of any brief or argument showing the inapplicability of the section referred to, the court largely adopted the argument of the husband's counsel. So far as the opinion goes it assumes, without any reasoning, that section 580 of the Code of Civil Procedure was applicable.

Code of Civil Procedure section 580 is merely a codification of a well established principle of law. The principle recognizes and proceeds on the theory that a defendant has the right to assume that any judgment rendered by the court will be limited as against him to the cause of action stated in the complaint, and having no defense to the action as stated, judgment would necessarily have to be rendered against him. 15 R.C.L., § 44. Our statute (Code Civ.Proc., § 580) deals with the typical law or equity case where there is a default. But in a divorce case the decree entered without defendant's having appeared and answered is not a true default, since all the material facts stated in the divorce complaint must be established by proof and corroborated by one not a party to the action. Civ.Code, § 130; 27 C.J.S., Divorce, § 165. This, therefore, is not a true default case. The statute prohibits its being tried as an ordinary default case for want of answer. Civ.Code, § 130. Nor is it technically and procedurally a contested case. If we were to attempt a classification we would be inclined to say a divorce case heard without an answer filed belongs somewhere between a default and a contested case, having some of the characteristics of each. If we construe section 580 of the Code of Civil Procedure as being inapplicable to divorce suits, then full force and effect may be given to the language and legislative intent back of the various substantive and procedural statutes governing divorce, and particularly Civil Code section 139. To hold that Code of Civil Procedure section 580 must be deemed applicable in divorce proceedings is to enable a plaintiff, by a mere refusal to insert a claim for alimony, to tie the hands of the court and to prohibit it from exercising the discretion vested in it by Civil Code section 139. For this reason and the further reason that section 580 of the Code of Civil Procedure deals necessarily only with true defaults, we hold that that section is not a controlling statute in the case before us.

Another case relied upon by the husband is Lang v. Lang, 182 Cal. 765, 190 P. 181. That was not a divorce action but an action brought by the ex–wife against the exhusband to partition a homestead property. The general language of the opinion in that case, upon which the husband here relies, must of course be read with reference to the issues before the court. So read, it is of no help to the husband in the instant case. The opinion discusses the need of an allegation as to property and a prayer therefor as contradistinguished from alimony––the point for consideration here. Moreover, it is to be noted that the court made no reference to Civil Code sections 146 and 147, and so we do not have in that opinion, nor in any opinion rendered since by the Supreme Court, any determination of the much disputed question whether the mandatory provisions of those code sections require the trial court to divide community property and assign homestead property as an incident to the divorce rather than as an issue made by the pleadings. We merely state the point but express no opinion upon it.

Another case upon which the husband relies is Parker v. Parker, 203 Cal. 787, 266 P. 283, 284. In that case a default interlocutory judgment for divorce awarded the wife the sum of $40 per month for her support and that of a minor child, predicated upon a complaint which merely alleged the weekly earnings of the husband, with a prayer that requested a dissolution of the bonds of matrimony, the awarding of the custody of the minor to the wife and “for such other and further relief as to the court may seem proper”. Some thirteen years after the final decree of divorce was entered, embodying the award made in the interlocutory decree, the wife procured execution to issue on the judgment for support for the amount unpaid thereon in a sum in excess of $4,000. The trial court having denied a motion to recall the execution, the husband appealed and assigned as one of several errors the claim that the judgment was void on its face in that the award was in excess of jurisdiction for want of necessary allegation in the complaint. The Supreme Court held the attack was collateral and so could not succeed. In the course of its opinion it referred to the fact that cases, among them Bennett v. Bennett, 50 Cal.App. 48, 194 P. 503, had held that section 580 of the Code of Civil Procedure controlled in the rendition of judgment, but the court neither approved nor disapproved those holdings but reiterated its approval of Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 269, 11 Ann.Cas. 520. In the Cohen case there is this quotation from Gaston v. Gaston, 114 Cal. 542, 545, 46 P. 609, 55 Am.St.Rep. 86: “The provision for support in such cases is ordinarily an incident of the judgment of divorce; the jurisdiction of the court (which is the extent of our concern at present) to make such provision is not dependent upon averments in the complaint of the husband's resources any more than its power to dispose of the children depends upon an allegation of the relative fitness of the parents for their custody.”

Among recent cases to which attention should be directed is Queen v. Queen, 44 Cal.App.2d 475, 112 P.2d 755, 757, where the court said: “In a divorce proceeding issues may be broadened at the trial to include questions not made an issue by the pleadings. The court as representative of the public interest has the power, irrespective of a contract settlement or the silence of the pleadings with reference thereto, to make a fair and just disposition of property rights in consonance with the law thereon.” While the Queen case was a contested case, the court's language is not limited, and we feel it should be deemed applicable to uncontested cases.

In the Gaston case the defendant did not answer the complaint but he appeared by attorney at the trial. The court did not discuss the effect of the appearance and we apprehend it did not do so because it considered the fact immaterial. Likewise we in this case think the appearance of counsel for the husband, in the manner hereinbefore set forth, added nothing to the right of the court to award alimony, and the case accordingly must be viewed as if the attorney had not appeared. Cf. Christerson v. French, 180 Cal. 523, 182 P. 27.

The judgment is in all respects affirmed.

I dissent. See section 580, Code of Civil Procedure; also Bennett v. Bennett, 50 Cal.App. 48, at page 49, 194 P. 503, where Mr. Justice Shaw says:

“Clearly, the trial court erred in making the order, the effect of which was to grant relief in excess of that demanded in the complaint. Not only was there an absence of any prayer for alimony, but the complaint contains no allegations upon which to base such prayer. Section 580, Code Civ.Proc., provides that, where no answer is filed by defendant, the relief granted plaintiff ‘cannot exceed that which he shall have demanded in his complaint.’ As stated, the prayer was for a dissolution of the bonds of matrimony only, and the power of the court to grant such relief was not enlarged by the prayer for general relief against defendant, who had made default. Staacke v. Bell, 125 Cal. 309, 57 P. 1012. See, also, Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann.Cas. 520; Foley v. Foley, 120 Cal. [33], 42, 52 P. 122, 65 Am.St.Rep. 147; Benton v. Benton, 122 Cal. 395, 55 P. 152.”

Bennett v. Bennett was decided by this court in 1920 and has been accepted by the profession as the correct rule since.

In Parker v. Parker, 203 Cal. 787, at page 792, 266 P. 283, at page 285, Mr. Justice Shenk, after citing Bennett v. Bennett, supra, says:

“None of the cases relied upon go to the length of holding that the granting of relief in excess of that demanded by the complaint renders the judgment void on its face. They do, however, uniformly hold that the granting of such excessive relief is erroneous, from which relief may be granted under section 473 of the Code of Civil Procedure of which may be corrected by appeal, either by a reversal or by a modification of the judgment, neither of which courses was pursued by the defendant in this case.”

See, also, Wallace v. Wallace, 111 Cal.App. 500, at page 506, 295 P. 1061, where Bennett v. Bennett, supra, is cited and approved.

In view of the foregoing authorities in my opinion the judgment should be reversed.

HANSON, Justice pro tem.

WOOD, Acting P. J., concurred.

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