Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.


Civ. 15270.

Decided: July 23, 1946

Courtney A. Teel, of Los Angeles, for appellant. David A. Matlin and H. Elliott Pownall, Jr., both of Los Angeles, for respondent.

While this appeal is from the interlocutory judgment of divorce in a default action, complaint is particularly made of that portion of such judgment which provides for the support and maintenance of plaintiff, subject to the further order of the court.

The original complaint for divorce was filed November 17, 1944, alleging acts of cruelty on the part of defendant toward plaintiff. Such complaint further alleges the parties to have been married on October 15, 1938, their separation on June 1, 1944, that there is one male child the issue of the marriage, aged a little over two years, that a property settlement agreement has been entered into between the parties which is attached to and made a part of the complaint, that the custody of such minor should be awarded to plaintiff and that defendant should be ordered to pay plaintiff for the support and maintenance of plaintiff and such child the sum of $25 per week for the period of one year commencing September 2, 1944, the sum of $75 per month for a period of six months thereafter, and then the sum of $50 per month for the support and maintenance of said child only, subject to the further order of the court.

The property settlement agreement attached to the complaint is dated July 1, 1944, and among other things provides for the division of the community property of the parties whereby plaintiff receives title to the household furniture and furnishings, a 1940 Plymouth Coupe automobile, and $975 in cash. Defendant further agrees to maintain in effect a $3,000 life insurance policy for the benefit of plaintiff and their child. Defendant receives, by virtue of the agreement, a 1940 Plymouth Sedan automobile and 94 shares of stock of the par value of $10 per share. The agreement further provides for payments to be made by defendant to plaintiff in the amounts, at the times, and for the support and maintenance of the individuals, as are alleged in plaintiff's complaint, plaintiff specifically waiving any right to support and maintenance for herself other than for the period of 18 months, beginning September 2, 1944, as provided therein.

The default of the defendant was subsequently entered after service of the complaint and summons upon him and the case came on regularly for trial. After having introduced proof as to the cruelty charges by plaintiff and a corroborating witness, the property settlement agreement was submitted to the court and its approval was requested. Under questioning by the court, the plaintiff then testified that while she was not employed and was staying at home, she had worked prior to her marriage and for a short while subsequent to the separation, during which latter period she earned $155 a month and that her husband is employed as a plant manager earning about $400 a month. The judge thereupon indicated that he would not approve the property settlement agreement and ordered a continuance of the case, suggesting the possibility of a stipulation by the defendant that the property settlement agreement might be amended whereby he would agree to pay plaintiff the sum of $50 per month for the support and maintenance of herself and her minor child until the further order of the court, and that if defendant should refuse to so stipulate, that defendant be served with an amended complaint which would include a prayer for payment of such support moneys for both plaintiff and the minor child until such time as the court orders a different amount.

Some four months later plaintiff, through her counsel, served upon defendant a motion for leave to file amendment to her complaint and on April 20, 1945, the defendant appeared specially and in company with his present counsel and opposed the granting of the motion for leave to file such amendment. The court thereupon granted leave to file the same, whereupon such amended pleading was filed, denominated ‘Amendment to Complaint to Conform to Proof.’ Such pleading had the effect of amending paragraph VII and the prayer of the original complaint by adding the words ‘plaintiff and’ in both places therein, so as to include plaintiff with the minor child for support and maintenance by the defendant in the sum of $50 per month from a date 18 months following September 2, 1944, until the further order of the court. An alias summons was issued by the clerk of the court on May 4, 1945, directing the defendant to answer the amendment to complaint to conform to proof in such action within ten days after the service upon him of such document, and such alias summons and amendment to the complaint were regularly served on defendant on May 9, 1945. On May 29, 1945, the defendant having failed to appear and answer the plaintiff's amendment to complaint to conform to proof, his default was duly entered thereto. On December 20, 1944, the court having found that defendant had defaulted, both to the original complaint and to the amendment to the complaint to conform to proof, ordered entered an interlocutory judgment of divorce in behalf of plaintiff, in which the property settlement agreement of the parties was approved except as to the limitation therein with reference to the payments of $50 per month, and further ordering defendant to pay plaintiff $25 per week, commencing on September 2, 1944, and continuing for a period of one year therefrom, and the sum of $75 per month for a period of six months thereafter, and then the sum of $50 per month for the support and maintenance of plaintiff and of said minor child subject to the further order of the court.

Defendant contends that the trial court erred in allowing alimony to plaintiff for a period subsequent to that set forth in the property agreement where the prayer of the original complaint failed to request it. In support of his position he cites the cases of Majors v. Majors, 1945, 70 Cal.App.2d 619, 161 P.2d 494; Eddy v. Eddy, 1944, 64 Cal.App.2d 672, 149 P.2d 187; Peck v. Peck, 1942, 52 Cal.App.2d 792, 127 P.2d 94; Darsie v. Darsie, 1942, 49 Cal.App.2d 491, 122 P.2d 64. Such cases hold that, pursuant to section 580, Code Civil Procedure, the relief granted to a plaintiff in a divorce action, if no answer be filed, cannot exceed that which is demanded in the complaint. But such cases recognize the further principle that the ‘foregoing conclusion does not deprive the court of the power given it under section 139 of the Civil Code to provide for the maintenance of children and the wife where a divorce is granted for an offense of the husband. Should the trial court be of the opinion that an award of alimony is proper in a case where a default has been entered to a complaint for divorce which fails to contain a prayer for alimony, the court may order that the default be set aside, the prayer of the complaint amended to demand alimony and that the complaint as amended be served upon the defendant.’ Darsie v. Darsie, supra, 49 Cal.App.2d at pages 494, 495, 122 P.2d at page 66.

The filing of the amendment to the complaint, where, s here, the pleading is amended in substance and not merely in form, operates to open the default. Gutleben v. Crossley, 1936, 13 Cal.App.2d 249, 253, 56 P.2d 954; Sheehy v. Roman Catholic Archbishop, 1942, 49 Cal.App.2d 537, 539, 122 P.2d 60. A defaulting party may be bound by both the decree and the agreement where provisions of the latter are modified or superseded by such decree. Robertson v. Robertson, 1939, 34 Cal.App.2d 113, 117, 93 P.2d 175; Newell v. Newell, 1915, 28 Cal.App. 784, 154 P. 32.

Defendants claim that the court was without power to order the pleadings amended during the trial is without merit. Sections 470 and 473, Code of Civil Procedure, give the trial court a wide discretion in the allowance of the filing of an amendment to any pleading. An order authorizing the filing of such amendment will not be disturbed in the absence of a clear showing of an abuse of judicial discretion. Vallera v. Vallera, 1944, 64 Cal.App.2d 266, 269, 148 P.2d 694; Burrows v. Burrows, 1936, 18 Cal.App.2d 275, 278, 63 P.2d 1135. ‘Under the provisions of section 470 of the Code of Civil Procedure, the trial court is invested with discretionary power to permit and even to order the pleadings of the parties to be amended at any stage of the trial of the cause, and even after its submission, so as to make such pleadings conform to the proofs, and it has been uniformly held that this discretion will not be interfered with upon appeal except in cases of its manifest abuse.’ Gartlan v. C. A. Hooper & Co., 1918, 177 Cal. 414, 422, 170 P. 1115, 1118. See also Richter v. Adams, 1941, 43 Cal.App.2d 184, 187, 110 P.2d 486. The allowance of such amendment was within the sound discretion of the court. Rabbit v. Atkinson, 1941, 44 Cal.App.2d 752, 759, 113 P.2d 14. Nor was defendant misled by the designation given the amendment as being one to ‘conform to proof’ so as to be entitled to rely upon proof necessarily limited to the allegations and prayer of the original complaint upon which his default had been entered. Neither the caption of the pleading nor the prayer is conclusive as to its nature, nor is the designation given it by counsel. The whole of the pleadings must be looked to as well as all the facts of the case. Hutchason v. Marks, 1942, 54 Cal.App.2d 113, 114, 128 P.2d 573; Sullivan v. Compton, 1943, 61 Cal.App.2d 500, 502, 143 P.2d 357.

The substantial change made by the amendment in both the allegations and prayer of the complaint, the service upon defendant of the notice of motion for leave to file the amendment, his presence with counsel at such hearing, the personal service upon him of the written amendment together with alias summons advising of his right to appear in response thereto followed by his default after having full knowledge of the nature of the additional relief and award sought by plaintiff, are conclusive upon defendant in this respect and defendant cannot now claim to have been misled or to be wrongfully prejudiced by the permitted amendment.

Defendant further contends that int he absence of pleadings attacking the validity of the property agreement, or asking a reformation thereof upon appropriate grounds, a court is without power to modify its terms or make a new agreement for parties otherwise competent to contract between themselves. It now seems well settled, however, that the general rule to the effect that parties to actions affecting real property may control the disposition of the interests involved and that the judgment of the court will be made to conform to such disposition, has no application to divorce cases. In re Lazar, 1940, 37 Cal.App.2d 327, 330, 99 P.2d 342; Roberts v. Roberts, 1927, 83 Cal.App. 345, 350, 256 P. 826. In actions wherein a divorce is granted to the wife a broad discretion is vested in the trial court in the allowance of permanent support to her even in the face of contracts of property settlement wherein such support moneys are expressly waived. The court has full power to examine the contract and inquire into the facts surrounding its execution and may in the exercise of a proper discretion, accept or reject it in whole or in part and may dispose of the community property in spite of the agreement if the provision made is against public policy, or not sufficient for the wife's needs and may provide for her support without requiring the return of what she received under the agreement. Auclair v. Auclair, 1946, 72 Cal.App.2d 791, 801, 165 P.2d 527; In re Lazar, supra, 37 Cal.App.2d 327, 99 P.2d 342; Lazar v. Superior Court, 1940, 16 Cal.2d 617, 620, 107 P.2d 249; Robertson v. Robertson, supra, 34 Cal.App.2d 113, 116, 93 P.2d 175; Kelly v. Kelly, 1933, 129 Cal.App. 325, 328, 18 P.2d 781; Moog v. Moog, 1928, 203 Cal. 406, 408, 264 P. 490. Under such circumstances the court may further determine, after considering the provisions of such an agreement and the evidence relating thereto, that all or part of such agreement is consistent with good morals and is not in violation of the policy of the law and as to such valid portions may endorse its approval, but in the exercise of its power as a court of equity may decline to follow other provisions which may fail to meet these tests. A clause of such an agreement wherein a wife waives her right to any future maintenance by her husban may be disapproved by the court even though it approves the balance of such agreement. Roberts v. Roberts, supra, 83 Cal.App. 345, 351, 256 P. 826.

The defendant further asks us to review the sufficiency of the evidence to support the part of the judgment of which complaint was made. While a defendant whose default has been taken may appeal from the succeeding judgment, such an appellant is not privileged to urge as a ground for reversal the insufficiency of the evidence upon which the trial court based its findings and judgment. Such a defaulting appellant must confine his attack to the consideration of jurisdiction or of the sufficiency of the pleadings. Reed Orchard Co. v. Superior Court, 1912, 19 Cal.App. 648, 662, 128 P. 9, 18; Crackel v. Crackel, 1911, 17 Cal.App. 600, 121 P. 295; San Gabriel Valley Bank v. Lake View Town Co., 1906, 4 Cal.App. 630, 633, 89 P. 360; Lester v. Beer, 1946, 74 Cal.App.2d ——, 168 P.2d 998. As previously indicated the relief granted by the trial court was within the scope of the complaint as amended and the court did not exceed its jurisdictional powers.

The judgment is affirmed.

I concur in the judgment and in the opinion in so far as the statements therein are applicable to the facts of the case. I do not, however, agree that the court can properly approve a property settlement agreement in part and at the same time render a decree which is contrary to the terms of the agreement in material respects. If the agreement is not acceptable, the court should either decline to approve it and make no disposition of the community property, or cause the entire matter to be placed in issue for trial. If a man should give his wife all the community property in consideration of her waiving other support, the court should not award her the property, by virtue of the agreement, and at the same time award her support money. But the defendant had an opportunity to defend when he was served with the amended complaint, which stated a cause of action for support, and on appeal from the default judgment may not complain of errors which do not go to the question of jurisdiction.

KINCAID, Justice pro tem.

WOOD, J., concurs.

Copied to clipboard