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District Court of Appeal, Fourth District, California.

Eleanor Louise CRAFT, Plaintiff and Respondent, v. Josh Coleman CRAFT, Defendant and Appellant.*

Civ. 5282.

Decided: November 19, 1956

C. E. Crowley, Ontario, for appellant. Robert G. Beloud, Ontario, for respondent.

This is an action for divorce. The complaint states a cause of action based on cruelty and contains allegations that the parties own as community property a residence in San Bernardino county, household furniture and a 1950 Nash automobile; that plaintiff has no money or means with which to pay attorney's fees or costs of suit; that the parties lived together approximately seven and one-half years and that there are no children the issue of the marriage. The prayer is for dissolution of the marriage and award of the community property to plaintiff, attorney's fees and costs, and such ‘other and further relief as to the court may seem meet and proper in the premises.’ There was no request for alimony.

Defendant was personally served with summons and complaint and entered into a written stipulation with plaintiff wherein he waived time to appear in the action, agreed that the matter might be heard on the default calendar, and waived notice of trial and findings of fact and conclusions of law. It was further stipulated that the community property be awarded to plaintiff, that an order be made awarding plaintiff attorney's fees and costs of suit, and it was further stipulated by plaintiff that she waived payment of alimony by the defendant. This stipulation was signed and acknowledged by plaintiff and defendant before a notary public and filed in the action.

On February 15, 1954, the cause was heard by the court as a default matter and an interlocutory decree of divorce was granted to plaintiff. This decree awarded the community property to plaintiff, allowed her attorney's fees and costs and further provided as follows:

‘It is further ordered, adjudged and decreed that plaintiff is entitled to payment for alimony by defendant to plaintiff, which until the further order of the Court, shall be $1.00 per month beginning March 1, 1954.’

On February 16, 1955, the defendant filed an affidavit for final judgment of divorce in which he stated, inter alia, that since the granting of the interlocutory decree ‘all the requirements therein have been fully complied with on the part of the moving party herein, and he is not in default in any thereof; and no motion to set aside or annul said interlocutory judgment or suit brought therefor is pending and undetermined, and no appeal has been taken or is pending therefrom, and said judgment has become final.’ On February 16, 1955, the court granted the final decree of divorce in which it was ordered, among other things, that:

‘It is further ordered and decreed that if said interlocutory judgment, or any modification thereof, makes any provision for alimony or the custody or support of children or the disposition of community property, said provisions, or modification thereof if made, be and the same are hereby made binding on the parties affected thereby the same as if herein set forth in full.’

On September 30, 1955, plaintiff obtained an order of court requiring the defendant to appear and show cause why the interlocutory and final judgments should not be modified so as to require the defendant to pay plaintiff a reasonable sum as alimony for her support and maintenance. This order was supported by plaintiff's affidavit showing changed circumstances, plaintiff's inability to support herself, and the financial ability of the defendant to contribute to her support. By direction of the court, the matter of taking proof and reporting conclusions of fact relative to the order to show cause was heard before a court commissioner, who, on October 14, 1955, after a hearing, recommended that the interlocutory and final judgments be modified to provide that defendant pay plaintiff $25 per week for her support, together with attorney's fees and costs, and the commissioner found that the defendant had the ability to pay the sums recommended. On October 14, 1955, the court entered an order in accordance with the recommendation of the commissioner. On October 28, 1955, defendant filed his motion for an order striking from the interlocutory decree the portion thereof which ordered defendant to pay $1 per month alimony, and further that the recommendation of the commissioner be set aside. This motion was made on the grounds that the court was without jurisdiction to make the order for alimony after plaintiff had stipulated to waive the payment thereof. On the same day plaintiff filed a motion for additional attorney's fees. The trial court denied defendant's motion to modify the interlocutory decree by striking therefrom the provision as to alimony, granted plaintiff's motion for attorney's fees and overruled defendant's objections to the findings and recommendations of the court commissioner. Defendant appeals from these orders and from the order of the court entered on October 14, 1955, providing for the payment of $25 per week for the plaintiff's support and maintenance.

Appellant contends that the trial court exceeded its jurisdiction in ordering the payment of alimony by defendant and that the order therefor incorporated in the interlocutory decree is void. There is no prayer for alimony in the complaint herein and no answer was filed. It was error, therefore, to order the defendant to pay a designated sum per month. Eddy v. Eddy, 64 Cal.App.2d 672, 149 P.2d 187; Darsie v. Darsie, 49 Cal.App.2d 491, 122 P.2d 64. However, in Parker v. Parker, 203 Cal. 787, 792, 266 P. 283, 285, the court, in discussing the effect of granting relief in excess of that demanded in the complaint, stated:

‘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 or 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. It was held by this court in Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann.Cas. 520, which case has not been overruled or criticized so far as we are advised, that a judgment by default for alimony in a divorce action under a prayer for general relief, but where no alimony was specifically demanded, was not void and was not subject to a collateral attack such as is here attempted to be made See Harlan v. Harlan, 154 Cal. 341, 98 P. 32; Stone v. Stone, 58 Cal.App. 415, 208 P. 993.’ See also Burtnett v. King, 33 Cal.2d 805, 810, 205 P.2d 657, 12 A.L.R.2d 333; 28 Cal.Jur.2d, Judgments, Sec. 37.

In the instant case no relief was sought under the provisions of section 473 of the Code of Civil Procedure within the time prescribed therein and no appeal was taken from the interlocutory or final judgments of divorce. The interlocutory judgment was not void on its face and more than six months elapsed after the entry of the interlocutory decree before the defendant made his motion to modify it. The court lost jurisdiction to act under section 473 of the Code of Civil Procedure. Castagnoli v. Castagnoli, 124 Cal.App.2d 39, 41, 268 P.2d 37; Bowman v. Bowman, 29 Cal.2d 808, 813, 178 P.2d 751, 170 A.L.R. 246.

Appellant argues that the provision in the interlocutory decree for the payment of alimony was void because plaintiff had stipulated to waive such payment. This contention is without merit. In Baucus v. Riveroll, 95 Cal.App. 224, 225, 272 P. 760, it is held that an order of a court disregarding a stipulation entered into between the parties to an action is discretionary, and that such order may be disturbed only when it clearly appears that the order was the result of an abuse of discretion. And in Smith v. Superior Court, 89 Cal.App. 177, 190, 264 P. 573, it is held that agreements between spouses relative to alimony or fixing by and between themselves the amount which the court may allow are subject to the power of the court under section 139 of the Civil Code to modify or wholly reject, as provided in said section. See also 16 Cal.Jur.2d, Divorce and Separation, Sec. 216, p. 509. In Triest v. Triest, 67 Cal.App.2d 320, 322, 154 P.2d 2, it is stated that the law is well settled that the court possesses power to modify an alimony order because of changed circumstances, Civ.Code, § 139, and that the propriety of such an order rests largely in the discretion of the trial court. This general rule is subject to an exception where the provisions for the payment of alimony are an integral and inseparable part of the division of property and are therefore an inseparable part for the consideration of the property settlement. In such cases the alimony provision may not be modified. Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988. In the instant case there was no such property settlement agreement. Even if the stipulation involved be construed as constituting a property settlement agreement, the trial court had jurisdiction to determine whether it was equitable and should be enforced, and to award alimony. Smith v. Smith, 40 Cal.2d 461, 464, 254 P.2d 1. The amount of support that the husband must pay is within the discretion of the trial court and the court in making the award must consider the circumstances of the parties, the needs of the wife and the ability of the husband to pay. Bowman v.Bowman, supra, 29 Cal.2d 808, 811, 178 P.2d 751. In the instant case a hearing was had and findings made which support the orders of the court and no abuse of discretion appears.

Appellant filed a motion in this court for a stay of proceedings and for attorney's fees and costs on appeal. On May 8, 1956, this court denied the motion to stay the proceedings and continued the hearing on the motion for attorney's fees, to be decided with the merits. The Superior Court has power to compel the husband to pay plaintiff's attorney's fees and costs on appeal and enforce compliance with such an order. Larkin v. Larkin, 71 Cal. 330, 12 P. 227. And in Painter v. Estate of Painter, 78 Cal. 625, 628, 21 P. 433, the court held that the Superior Court was the proper court to fix and allow attorney's fees on appeal.

The application for attorney's fees and costs on appeal should have been made to the trial court and is therefore denied. The orders appealed from are affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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