Bowman v. Bowman

These appeals are from an order of the superior court restoring certain provisions previously struck from an interlocutory decree of divorce and from a final judgment of divorce containing the restored provisions. Plaintiff brought an action for divorce on April 13, 1944, requesting support for her child. She also alleged that the parties were indebted to a credit union and owed money secured by a mortgage on a house and lot formerly owned by them as joint tenants, which became the separate property of plaintiff by a quitclaim deed executed by the defendant before the divorce action. Plaintiff requested that defendant be required to pay these debts and also that the community property, amounting to about $1,000, be distributed. Defendant, an attorney, was personally served with process but his default was entered on May 17, 1944.

Plaintiff stated at the trial that she did not seek alimony for herself, but that she wished defendant to pay the foregoing debts. The interlocutory judgment of divorce, providing for the distribution of the community property, was granted. The trial court granted custody of the child to plaintiff and then ordered:

“3. That the 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. ’ ’

The payments in question are declared to be for the benefit of plaintiff and her child and, since they will serve to provide them with the unobstructed use of their home and household furniture, they must be regarded as provisions for support and maintenance. The amount of support that the husband must pay is within the discretion of the trial court (Scheibe v. Scheibe, 57 Cal.App.2d 336 , 343 [134-P.2d 835]) 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. (Civ. Code, §139.) Defendant contends, however, that the provisions ordering installment payments are void because the payments are to be made to the court trustee. He relies upon cases declaring that orders for payment to a person not a party to the action are beyond the jurisdiction of the court. (Keck v. Keck, 219 Cal. 316 , 322 [ 18 P.2d 338 ] ; Stevens v. Stevens, 215 Cal. 702 , 704 [ 12 P.2d 432 ] ; Samter v. Klopstock Realty Co., 31 Cal.App.2d 532 , 535 [ 88 P.2d 250 ] ; Overell v. Overell, 18 Cal.App.2d 499 , 502 [ 64 P.2d 483 ].) The court trustee, however, was not an agent of the creditors but a trustee for plaintiff and her minor child. (Bohnert v. Bohnert, 91 Cal. 428 , 432 [ 27 P. 732 ].) The sums to be paid to the court trustee were determined by the amounts of the debt installments and are to be paid until the debts are satisfied. Support normally should be paid directly to the wife (Nathan v. Nathan, 102 Neb. 59 [ 165 N.W. 955 ] ; Blair v. Blair, 40 Utah 306 [ 121 P. 19 , Ann.Cas. 1914D 989, 38 L.E.A.N.S. 269] ; see 2 Nelson on Divorce, ■ § 14.69), but the trial court may order the sums paid to a trustee for the benefit of the wife. (Nemecheck v. Nemecheck, 250 Mich. 641 [ 231 N.W. 82 ]; Yost v. Yost, 143 Neb. 80 [ 8 N.W.2d 686 ] ; Mosey v. Hiestand, [Ohio App.] 42 N.E.2d 186 ; see 2 Nelson on Divorce, § 14.69.) The court directed

Defendant contends that the parts of the interlocutory decree requiring alimony payments to the trustee are void because plaintiff did not request alimony in her prayer. Plaintiff clearly stated in her complaint that she and defendant were liable for certain debts and in her prayer she requested that defendant be ordered to pay them. Although this was not a formal prayer for alimony, it was manifestly a request for relief that would give her and her child the unobstructed use of the home and household furniture. Plaintiff did not wish ordinary support for herself but she wanted the debts paid. In the absence of agreement or sufficient community property, it was necessary to award her alimony in order to give her the required relief. The complaint was sufficient notice to defendant that plaintiff might be granted this relief. 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. (Parker v. Parker, 203 Cal. 787 , 792 [ 266 P. 283 ]; Cohen v. Cohen, 150 Cal. 99 , 102 [ 88 P. 267 , 11 Ann.Cas. 520].)

Defendant contends that he properly attacked the interlocutory judgment on the ground that the judgment exceeded the relief prayed for and that he was given relief under section 473 of the Code of Civil Procedure, which is now final, since plaintiff did not appeal. Defendant gave notice of a motion to “Open, vacate or modify the default judgment or default” within six months after the entry of the judgment, but not within six months after the entry of the default. He stated therein that the judgment had been taken against him by mistake, inadvertence, surprise or excusable neglect and, further, that the decree was erroneous insofar as it awarded alimony unsupported by appropriate allegations in plaintiff’s complaint and prayer. In his affidavit of merits, defendant stated that plaintiff and her attorney had misled him and also

The trial court could not relieve defendant from the entry of the default because the motion under section 473 was not made within six months after the entry of default. (Phillips v. Trusheim, 25 Cal.2d 913 , 917 [ 156 P.2d 25 ] ; Hunt, Mirk & Co., Inc. v. Hesperides Mining Co., 200 Cal. 382 , 384 [ 253 P. 317 ] ; Title Ins. & T. Co. v. King etc. Co., 162 Cal. 44 , 46 [ 120 P. 1066 ].) Defendant states, however, that he was not attacking the entry of default, but was seeking a modification of the judgment to make it correspond to the relief requested by plaintiff in her complaint. Defendant concedes that the interlocutory judgment was rendered precisely as intended by the trial judge. The modification of the judgment, therefore, cannot be based upon the power of the trial court, under section 473 or independent of it, to correct clerical errors made either by the clerk or by the court. (Bastajian v. Brown, 19 Cal.2d 209 , 214 [ 120 P.2d 9 ].)

Section 473 also provides that a trial court may relieve a party from “a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. ...” The purpose of this provision, however, is to enable trial courts to set aside the judgment, order or proceeding in order to allow the party to proceed on the merits rather than to allow him to be defeated by a determination or proceeding caused by his mistake, inadvertence, surprise or excusable neglect. (Riskin v. Towers, 24 Cal.2d 274 , 279 [ 148 P.2d 611 , 153 A.L.R. 442 ] ; Estate of Simmons, 168 Cal. 390 , 396 [ 143 P. 697 ].) The trial court in the present case did not attempt to vacate the judgment on the ground

Defendant contends that even if a court is without authority to amend its judgment to correct errors of law, it has continuing jurisdiction, under section 139 of the Civil Code, to modify its .support decrees. It is no longer seriously questioned that a trial court has power to terminate payments of support and maintenance in a proper case and upon a proper showing. (McClure v. McClure, 4 Cal.2d 356 , 360 [ 49 P.2d 584 , 100 A.L.R. 1257 ].) In the present case, defendant’s notice of motion was based upon the two grounds mentioned above, i. e., surprise and relief in excess of prayer. The notice of motion was accompanied by defendant’s affidavit, a proposed answer and an affidavit executed by his attorney. Defendant’s affidavit stated facts showing surprise and alleged that the relief afforded plaintiff was contrary to section 580 of the Code of Civil Procedure. He alleged further that his attorney had advised him that he had a valid and substantial defense to the action. His attorney’s affidavit was entitled “Affidavit Supporting Motion To Vacate Judgment.” The trial court, upon the hearing of the motion, ordered the words “for the benefit of plaintiff and said minor child” struck from the interlocutory decree, but did not disturb that part of the decree ordering defendant to pay the installments to the court trustee. (McClure v. McClure, supra at 360.) The trial court apparently attempted to convert a judgment for alimony into a division of property. There is nothing in the record to indicate that the trial judge made his decision after considering the circumstances of the parties. In fact, the order of the court purports to retain, in the inter

Subsequent to the purported amendment of the interlocutory judgment, plaintiff gave notice of a motion to restore the judgment to its original form. Upon hearing, the trial court ordered that the interlocutory decree be restored to its original form, and the final judgment of divorce was then entered in the words of the original interlocutory judgment of divorce. It is from this order and judgment that defendant appealed. The trial court was correct in entering the final judgment in accord with the language of the interlocutory decree since the purported modification of that decree was without authority.

The order appealed from and the final judgment of divorce are affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., and Spence, J., concurred.

Schauer, J., did not participate herein.