BOWMAN v. BOWMAN (1946)

There are two appeals here involved, the first being an appeal from an order attempting to restore certain provisions of an interlocutory judgment of divorce which had been previously stricken on appellant's motion; the second appeal being from a final judgment containing the provisions originally stricken from the interlocutory judgment. The action for divorce, commenced by respondent on April 13, 1944, was based on an allegation of cruelty set forth in general terms. The complaint contained no prayer for, nor allegation concerning alimony or support for the plaintiff wife, but did allege that there was a minor child in plaintiff's custody, and prayed that defendant ‘be ordered to pay for the support of said minor child, Donald Michael Bowman, the sum of $60.00 per month’. (Italics added.) The complaint further alleged that ‘the parties hereto are indebted to the Los Angeles Teachers Credit Union in the sum of $694.16, being the balance due upon a loan, with monthly payments thereon at the rate of $43.00 per month,’ and prayed that the defendant be ordered to pay this amount ‘to the Los Angeles Teachers Credit Union,’ together with a further sum of $54.05 per month ‘to the Syndicate Mortgage Company,’ as mortgage payments on a house and lot previously held by the parties as joint tenants, and in which the appellant had conveyed his interest to the respondent. Community property, consisting of two automobiles, household furniture, and appellant's law library and furniture was alleged, with a prayer for the distribution thereof. Attorney fees and costs were also prayed for. Appellant was personally served with process, and default entered on May 17, 1944. Thereafter, on June 6, 1944, the cause came on to be heard as a default divorce and at such hearing the trial court inquired: ‘You are not asking for alimony for yourself?’, to which the respondent replied, ‘No, sir.’ The interlocutory divorce then granted, provided for the distribution of the community property as prayed, awarded the residence to respondent as her separate property, granted custody of the child to respondent, and then ordered:

‘3. That defendant pay to the Court Trustee, for the benefit of plaintiff and said minor child, the following amounts each month, to wit:

‘(a) The sum of $50.00 payable $25.00 on the first day of the month, and $25.00 on the fifteenth day of the month, for the support of said minor child, Donald Michael Bowman;

‘(b) The sum of $54.05 on the first day of each month for payment to Syndicate Mortgage Company to be applied on the mortgage on the home place of the parties, until said Loan shall have been paid in full;

‘(c) The sum of $43.00 on the first day of each month for payment to Los Angeles Teachers Credit Union to be applied on the promissory note payable to said Teachers Credit Union until it has been paid in full.’ (Italics added.)

The appellant was served with notice of said interlocutory judgment on June 15, 1944, and on November 14, 1944, appellant filed a motion under Section 473 of the Code of Civil Procedure to ‘Open, vacate or modify’ such judgment, upon the ground that it ‘was taken against said defendant through his mistake, inadvertence, surprise or excusable neglect; and further, that * * * (it) is erroneous to the extent of awarding plaintiff alimony for her benefit, maintenance and support not supported by appropriate allegations * * * and is also in excess thereof contrary to the provisions of Section 580 of the Code of Civil Procedure * * * relating to the entry of default judgments, so that this defendant was not warned of the risk in failing to answer the above entitled cause.’ This motion was granted on December 1, 1944, as follows: ‘The words ‘for the benefit of plaintiff and said minor child’ * * * are stricken. Motion is otherwise denied.' No appeal was taken from this order. Appellant did not make the specified payments to the court trustee for the Syndicate Mortgage Company and the Los Angeles Teachers Credit Union, and on February 13, 1945 was cited for contempt, the following order being made: ‘This hearing is on contempt for non-payment by defendant of orders to pay to third parties who are not parties to the action. * * * The contempt is dismissed.’ No appeal was taken from this order.

On May 28, 1945, the respondent wife made a motion ‘To vacate and/or modify certain orders modifying the interlocutory judgment,’ and at the hearing thereof the decision was ‘that the order as originally set forth in the Interlocutory Decree of Divorce herein be restored as the order now in effect. Final Judgment of Divorce is signed and filed.’ The effect of this order, now appealed from, was that the words ‘for the benefit of plaintiff and said minor child’ which on December 1, 1944, had been stricken from the interlocutory judgment, were restored, and that said provision was incorporated in the final judgment of divorce, from which final judgment the husband also appeals.

The first point presented by appellant's brief is that ‘The complaint containing no allegation supporting an award of alimony, and the prayer of the complaint not demanding that alimony be paid to respondent, the court was in error in awarding alimony in this default action.’ In this connection appellant cites Section 580 of the Code of Civil Procedure which provides that ‘The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.’ The respondent's brief apparently does not take issue with this rule, but contends, first, that the relief granted did not exceed that prayed for in the complaint; second, that ‘even if the default interlocutory judgment contained an outright award of alimony, and no demand for alimony was made in the complaint, * * * such an award would not be void on its face, but merely voidable on direct attack on the judgment, and in the absence of an appeal, * * * became res adjudicata and immune from collateral attack,’ and third, that ‘where issues are tendered in the pleadings in a divorce action concerning the property rights of the parties and a prayer is made for an assignment of community property, a default interlocutory judgment adjudicating those property rights becomes final and res adjudicata in the same manner as an ordinary judgment.’

It is impossible to agree with respondent's conclusion that ‘the interlocutory judgment as originally entered, did not deviate from the demands made in the complaint.’ Not only did the complaint fail to ask any allowance for the wife or in any way mention such matter, but at the hearing of the default divorce complainant specifically stated that she was not asking for alimony. In this state of the record which placed the matter of a wife's allowance clearly outside the issues presented, and notwithstanding respondent's express disclaimer of any alimony, the trial court nevertheless made an order in favor of the wife, and adjudged that appellant should ‘pay to the Court Trustee, for the benefit of plaintiff and said minor child’ (italics added) certain sums of money. Two of the specified sums, moreover, were to be paid to the Syndicate Mortgage Company and to the Los Angeles Teachers Credit Union, persons who were not parties to the divorce action. To uphold such a default judgment would be to sanction a direct violation of Section 580 of the Code of Civil Procedure which provides that where there is no answer, ‘The relief granted to the plaintiff * * * cannot exceed that which he shall have demanded in his complaint.’ The appellant husband had permitted a default to be entered under what was certainly a justifiable belief that he would not be ordered to pay any allowance to the respondent wife.

In respect to respondent's argument that the award in question was not ‘void on its face but merely voidable on direct attack on the judgment,’ it may be noted that the appellant did make such an attack by way of motion and the court struck out the odious words as requested. The present problem is in respect to a later order, entered by a different judge, which attempted to restore the objectionable phrase to the interlocutory and final judgments. No case presented by respondent furnishes any authority for such a contradictory and dangerous procedure, and no argument, specious or otherwise, should be permitted to prevail over the plain implications of such a situation. If a defendant in a default divorce case may not depend upon the precise allegations and statements of the plaintiff that no alimony is sought, then all security vanishes and a defendant can only secure adequate protection by filing an answer and appearing in court. Such is obviously not the law, and Section 580 of the Code of Civil Procedure must be given its full effect in all cases. The respondent's contention that the original alimony award might be sustained on the theory that the trial court had authority to adjudicate community property rights of the parties is beside the point; the present controversy does not involve community property. As said in the case of Peck v. Peck, 52 Cal.App.2d 792, 793, 127 P.2d 94, 95, ‘There being no prayer for it in the cross-complaint, the trial court was without authority to grant any support money to the defendant and cross-complainant.’

It is insisted in respondent's brief that the appellant's motion to vacate or modify the interlocutory judgment as to the alimony provisions was filed too late, since it was not made within six months of the entry of the default of the appellant. The record discloses, however, that the interlocutory divorce judgment was entered on June 7, 1944, and that appellant's motion was filed on November 24, 1944, thus complying with Section 473 of the Code of Civil Procedure which provides that the court may ‘relieve a party * * * from a judgment, order, or other proceeding,’ but specifies that application therefor ‘must be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken.’ (Italics added.) In this case it was the interlocutory judgment, and not the mere default, from which the appellant sought relief, and the motion, made well within six months from the entry of the judgment, was timely. That the matter was properly presented by such a motion, was decided in Parker v. Parker, 203 Cal. 787, 792, 266 P. 283, 285, where the court said that the cases ‘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.’ In the present case, the original order ‘for the benefit of plaintiff’ should never have been made, considering the state of the pleadings and respondent's waiver of alimony such provision was properly stricken, and another branch of the Superior Court had no authority to restore the objectionable phrase to the interlocutory and final judgments after it had previously been stricken. Furthermore, no order should have been made for the payment of sums of money to persons not parties to the action. Respondent's assertion that this defect is cured by the fact that the judgment runs ‘for the benefit of plaintiff and said minor child,’ is not persuasive. Without authority to grant alimony ‘for the benefit of plaintiff’, as hereinbefore set forth, the trial court made a bad matter worse by ordering appellant to make payments to the court trustee ‘for payment to’ the Syndicate Mortgage Company and the Los Angeles Teachers Credit Union. Previous to the adoption of Section 137.5 of the Civil Code in 1937, authorizing payment of attorney fees directly to the attorney, it was uniformly held that such an order could not be made (Keck v. Keck, 219 Cal. 316, 26 P.2d 300) for the reason that the ‘attorney was not a party to the action.’ So also in Walters v. Superior Court, 129 Cal.App. 19, 18 P.2d 343, it was held that the trial court did not have authority to direct a guardian to pay money to certain creditors who were not parties to the action which had been compromised by the guardian.

For the reasons heretofore given, the order attempting to restore the phrase ‘for the benefit of plaintiff and said minor child,’ previously stricken from the interlocutory judgment, is reversed. The final judgment of divorce containing the same provisions, is likewise reversed with directions to enter a final judgment of divorce omitting such phrase. The judgment herein, however, is not to be understood as invading the power of the trial court to make provision in the judgment for the support of minors in a divorce action. That portion of the judgment is not intended to be affected.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur. Hearing granted; SCHAUER, J., not participating.