BURTNETT v. KING

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

BURTNETT v. KING et al.

Civ. 13505.

Decided: January 20, 1948

Robt. E. Hatch, of San Francisco, for appellant. Royal E. Handlos, of San Francisco, for respondents.

In 1944 Marion Burtnett filed a complaint for divorce against her husband Edward M. Burtnett on the ground of his extreme cruelty. The complaint alleged that the home of the parties was community property. The prayer of the complaint did not ask for an award of the community property but it did contain a prayer for an order restraining the defendant ‘from being upon or at the home of plaintiff and defendant.’ The husband defaulted and by its interlocutory decree of divorce the court awarded the home property to the wife. The husband did not appeal from or otherwise directly attack this decree by any proceeding in the action for divorce.

Mrs. Burtnett subsequently conveyed the home property to one Lagarmarsino who in turn conveyed it to the respondents. Plaintiff herein, Edward M. Burtnett, thereupon commenced this action against the respondents to quiet title to a one-half interest in the property. The court gave judgment for respondents and plaintiff appeals.

Appellant's position is that the portion of the default divorce decree awarding the community property to Mrs. Burtnett is absolutely void and for that reason subject to collateral attack. He relies on the language of section 580 of the Code of Civil Procedure: ‘The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.’

Respondents cite and rely on Parker v. Parker, 203 Cal. 787, 266 P. 283; Horton v. Horton, 18 Cal.2d 579, 116 P.2d 605; and Grant v. Grant, 52 Cal.App.2d 359, 126 P.2d 130, for the proposition that in an action for divorce, as distinguished from other types of action, where defendant has defaulted an award of alimony or of community property when the facts pleaded are sufficient to support the award, is within the jurisdiction of the court and therefore not void, even though there is no prayer for such award and the decree for that reason is vulnerable to direct attack by appeal or otherwise, under Code Civ.Proc. sec. 580.

As to alimony awards this rule is well settled. In addition to the cases above cited see Bowman v. Bowman, 29 Cal.2d 808, 812, 178 P.2d 751; Miller v. Superior Court, 9 Cal.2d 733, 740, 72 P.2d 868; Karlslyst v. Frazier, 213 Cal. 377, 2 P.2d 362. The rule is succinctly stated in Bowman v. Bowman, supra, 29 Cal.2d, at page 812, 178 P.2d at page 754:

‘Plaintiff need not rely solely upon the sufficiency of her complaint and prayer, however, since it is established that if the relief in excess of prayer is alimony, the judgment, although erroneous, is not void.’

The reason for this rule insofar as an award of alimony is concerned is stated in Parker v. Parker, supra, 203 Cal. at page 793, 266 P. at page 285: ‘That an award of alimony is so germane to the cause of action for divorce as that, under a prayer for general relief, the court would have jurisdiction to make it even though error might thereby be committed in exercise of such jurisdiction.’

The disposition of the community property of the spouses would seem to be equally germane to the cause of action for divorce. Section 146, Civil Code, subdivisions 1 and 2, provides:

‘In case of the dissolution of the marriage by decree of a court of competent jurisdiction, the community property, and the homestead, shall be assigned as follows:

‘One. If the decree be rendered on the ground of adultery, incurably insanity or extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just.

‘Two. If the decree be rendered on any other ground than that of adultery, incurable insanity or extreme cruelty, the community property shall be equally divided between the parties.’

This section is not only mandatory in form but occurs in the same article of the code as do the provisions for alimony and support.

It must be conceded that if the complaint contains no allegations concerning community property the attempt to award it in a default divorce proceeding is absolutely void. Lang v. Lang, 182 Cal. 765, 190 P. 181. But where the complaint contains appropriate allegations putting in issue the community character of the property the court's judgment awarding it in a default proceeding is not void although the complaint contains no prayer for such relief. In Horton v. Horton, supra, 18 Cal.2d 579, 116 P.2d 605 the court expressly so held. In that case the court distinguished Lang v. Lang, supra, and like cases in the following language (18 Cal.2d page 582, 116 P.2d page 607):

‘Examination of these cases reveals that they were concerned with awards referable to matters which the respective complaints either failed entirely to mentioned or included in limited terms narrower in range than the perinent provisions of the decree.’

In the Horton case there was no prayer for an award of the community property, the only prayer directed to community property being: ‘For an order restraining dissipation of the assets by the husband.’ 18 Cal.2d page 583, 116 P.2d page 607. In the case before us, if this is important, there was a similar prayer that the husband be restrained from interfering with the wife's possession and occupancy of the home.

While it was dictum in the particular case the court in Grant v. Grant, supra, 52 Cal.App.2d at page 362, 126 P.2d page 132, correctly summarizes the holding in the Horton case in the following language:

‘If a complaint in a divorce action presents by appropriate allegations issues relative to property rights but the prayer seeks no relief relative thereto a decree purporting to dispose of such property rights after defendant's default has been entered is not void and is not subject to collateral attack but is voidable and subject to correction on a motion for a new trial or reversal or modification upon appeal.’

The judgment is affirmed.

DOOLING Justice.

NOURSE, P. J., and GOODELL, JJ., concur.

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