MONROE v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY (1945)

This is an application for a writ of prohibition to prohibit the respondent court from hearing an order to show cause the purpose of which is to modify the provision for support money in a decree of separate maintenance which had become final.

These are the undisputed facts:

On March 23, 1945, respondent court entered a decree of separate maintenance in favor of Mary H. Monroe against petitioner herein. The decree provided in part as follows:

‘It is Further Ordered, Adjudged and Decreed that defendant pay to plaintiff for her support and maintenance the sum of $250.00 per month for a period of 27 months commencing as of March 1, 1943, payable in semi-monthly installments of $125.00 each on the 1st and 15th of each and every month.

‘It is Further Ordered, Adjudged and Decreed that defendant pay to plaintiff, for the support and maintenance of the minor child of the parties hereto the sum of Fifty ($50.00) Dollars per month for a period of twenty-seven months, commencing as of the 1st day of March, 1943, payable in semi-monthly installments of $25.00 each on the 1st and 15th days of each and every month; that upon the expiration of said period of twenty-seven months plaintiff shall be paid by defendant for the support and maintenance of said minor child the sum of $100 per month payable in semi-monthly installments of Fifty ($50.00) Dollars each on the 1st and 15th days of each and every month until said child reaches the age of majority, or is married or becomes self-supporting or until the further order of the court.’

No appeal was taken from the decree and it became final. Petitioner has performed and complied with each and every provision of the decree of separate maintenance. On May 21, 1945, respondent court issued an order directed to petitioner requiring him to show cause on June 20, 1945, why the order of March 23, 1943, should not be modified so as to provide that additional payments should be made for the support and maintenance of plaintiff in the separate maintenance action. Petitioner made a motion to quash the proceeding pending before the trial court, which motion was denied. An alternative writ of mandate has been issued by this court to respondents to show cause why they should not be enjoined from proceeding to hear the application for an order modifying the order of March 23, 1943.

This is the sole question presented for our determination:

Does the trial court have jurisdiction to make an order modifying a provision for support and maintenance previously allowed in a decree for separate maintenance, which decree has become final, where the decree does not reserve the power of modification in the trial court?

This question must be answered in the affirmative and is governed by this rule:

The trial court may in its discretion modify a final judgment granting separate maintenance to a wife. (Section 137, Civil Code.*)

Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1; Long v. Long, 17 Cal.2d 409, 110 P.2d 383; Tolle v. Superior Court, 10 Cal.2d 95, 73 P.2d 607; McClure v. McClure, 4 Cal.2d 356, 49 P.2d 584, 100 A.L.R. 1257; O'Brien v. O'Brien, 130 Cal. 409, 62 P. 598; O'Brien v. O'Brien, 124 Cal. 422, 57 P. 225; Howell v. Howell, 104 Cal. 45, 37 P. 770, 43 Am.St.Rep. 70; Schnerr v. Schnerr, 128 Cal.App. 363, 17 P.2d 749; Gillespie v. Andrews, 78 Cal.App. 595, 248 P. 715; and Bacigalupi v. Bacigalupi, 72 Cal.App. 654, 238 P. 93, relied on by petitioner, are each divorce actions and a different rule is applicable from that which applies in a separate maintenance action. In a separate maintenance action the parties are not divorced and their property rights are not necessarily settled. They may become reunited or at some future time a divorce may be granted to one or the other of the parties. Until such event they remain husband and wife and the obligation rests upon the husband to support his wife and minor children. Hence the provisions in section 137 of the Civil Code authorizing the trial court in the exercise of a sound discretion at any time to modify an order or decree providing for the support of a wife which is contained in a decree for suparate maintenance. (For an excellent discussion of the history and theory supporting the foregoing views, see Gloth v. Gloth [Virginia] 153 S.E. 879, 885 et seq.)

In view of the law established by the legislature in this state, cases such as Erkenbrach v. Erkenbrach, 96 N.Y. 456, and Koehl v. Koehl, 92 Misc. 579, 156 N.Y.S. 234, are inapplicable to the present action. (See 4 Cal.Jur., 10 year supp., [1944] p. 499, Courts, sec. 48.) In an application for a writ of prohibition directed to a court relative to a judicial act, the judge of the court is not a proper party respondent. (Brouwer v. Superior Court, 130 Cal.App. 163, 166, 19 P.2d 834.

For the foregoing reasons petitioner's application for a writ of prohibition is denied and the alternative writ heretofore issued is discharged.

FOOTNOTES

FOOTNOTE.  FN* Section 137, Civil Code reads in part as follows:‘The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court.’

McCOMB, Justice.

MOORE, P. J., and FOX, Justice pro tem., concur.