Swycaffer v. Swycaffer

This is an appeal from an order modifying an annulment and custody decree.

The plaintiff, Dorothy, had been married to one Kent. She separated from Kent who commenced divorce proceedings against her in Oklahoma. Kent informed Dorothy that he was obtaining his divorce from her on July 1, 1950. Dorothy married Joe, the defendant, on July 7, 1950. At the time of that marriage Dorothy was pregnant. Kent did not secure his divorce from Dorothy until July 28, 1950. Dorothy and Joe separated on July 15, 1952. During the period they lived together a boy was born to Dorothy. Dorothy filed a complaint against Joe in the San Diego Superior Court seeking a divorce, custody of the child, and an order for the child’s support. Joe answered and cross-complained. The cross-complaint sought an annulment on the ground that Dorothy was married to Kent at the time the ceremony between Dorothy and Joe was performed, and that at the time of that purported marriage Dorothy was pregnant by another man. On October 7, 1952, Dorothy with the knowledge and consent of her attorney signed a stipulation that her complaint for divorce might be withdrawn and that the action could proceed to trial on the cross-complaint for annulment as a default matter without any further notice to her. The matter was heard as uncontested on October 17, 1952. The trial judge did not read the pleadings in which Joe alleged that Dorothy was pregnant by another man at the time of their purported marriage. There was no allegation or prayer in the cross-complaint concerning the custody of the child born to Dorothy. At the hearing Vernon F. Bennett, Joe’s at

In December, 1952, Dorothy, through the attorney who represented her in the annulment action, John T. Holt, filed an application for an order to show cause why the annulment judgment should not be modified by striking therefrom the provision with reference to the custody of the child. The order was issued and a hearing was had before the same judge who granted the annulment decree. At that hearing Dorothy stated that she had dismissed Holt as her attorney. She asked that the action be dismissed. The court refused to dismiss it and appointed Holt as amicus curiae. Testimony was taken in which the above stated facts were established. The court then issued an order in which it reaffirmed its determination that at the time Dorothy purported to marry Joe she was married to Kent and was pregnant by another man, and that Joe was entitled to an annulment. However, the court further found that: ‘ ‘. . . Vernon F. Bennett, attorney for the defendant, Jos W. Swycaffer, knowingly and willfully deceived and defrauded the Court herein into awarding its decree [as to the custody provisions]." The court then ordered the custody provisions stricken from the decree on-the ground that the custody issue was not within the pleadings.

Joe contends that the finding that Bennett, his attorney, practiced fraud on the trial court cannot stand as a matter of law. He argues that the cross-complaint stated in several places that Dorothy was pregnant by another man; that the trial judge was charged with knowledge of the contents of the pleadings; that no statement was made in contradiction

Section 420 of the Code of Civil Procedure provides that: “The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. ’ ’

Dorothy stipulated that Joe might take a default judgment based upon his cross-complaint. That cross-complaint was the only pleading before the court at the time the decree was rendered. Paragraph 3 of the second cause of action of the cross-complaint alleged: “That for the purpose of inducing . . . cross-complainant to consent to said marriage and go through said marriage ceremony . . . cross-defendant falsely and fraudulently represented to . . . cross-complainant . . . that she was not pregnant by any other man and that she was physically competent to marry . . . cross-complainant and that she concealed from . . . cross-complainant her real physical condition, namely: That of pregnancy by some other man than . . . cross-complainant.” Paragraph 4 of that cause of action alleged: “That . . . cross-defendant was not at said time physically competent to marry . . . cross-complainant, but was at the time of said marriage to . . . cross-complainant married to another man and was in a state of pregnancy by some other man than . . . cross-complainant.” Paragraph 3 of the third cause of action of the cross-complaint alleged: “That the statistical facts required by Section 426a of the Code of Civil Procedure are as follows: 5. That no children were born the issue of this marriage. ’ ’

Under the circumstances of this case the allegations of the cross-complaint should be a sufficient record at immediate hand to advise the trial court of the facts claimed to have been fraudulently withheld or not disclosed by Bennett. Bennett was entitled to rely on the assumption that the trial court was aware of those facts in refutation of the asserted inference of fraud against him; and there is otherwise no sufficient showing of fraud on his part.

The finding of fraud against him is therefore not supported by the record and should be stricken therefrom.

It is apparent from the judgment roll in the annulment proceeding that the portion of the decree awarding custody of the child to Joe is void. Section 580 of the Code of Civil Procedure provides: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint. ...” This section is ap

Joe contends, however, that the matter of custody is so germane to the issue of annulment that a defendant must anticipate that an award of custody would be made. He argues that child custody is analogous to alimony and support orders. (See Bowman v. Bowman, 29 Cal.2d 808 [ 178 P.2d 751 , 170 A.L.R. 246 ]; Miller v. Superior Court, 9 Cal.2d 733 [ 72 P.2d 868 ] ;Karlslyst v. Frazier, 213 Cal. 377 [ 2 P.2d 362 ]; Parker v. Parker, 203 Cal. 787 [ 266 P. 283 ]; Cohen v. Cohen, 150 Cal. 99 [ 88 P. 267 ].) These cases are analyzed in detail in Burtnett v. King, supra, 33 Cal.2d 805 , and need not be reexamined here. Suffice it to say that the award of custody is of such independent importance that a defaulting defendant is entitled to conclude that child custody will not be determined unless specifically included within the prayer. Especially is this true, where as in the present ease, the complaint or cross-complaint on which the relief is granted contains an express allegation that there are no children of the marriage and that the child in question is not in fact the child of the marriage.

Nor do Civil Code, sections 84 and 138, confer power on the superior court to make the award here in question. Section 84 provides: “A judgment of nullity of marriage does not affect the legitimacy of children conceived or born before the judgment, and the court may during the pendency of

It is apparent from the facts above set forth that the portion of the annulment decree awarding the custody of the child to Joe was in excess of the relief demanded in the cross-complaint and is void. Dorothy could therefore properly attack that portion of the decree in this proceeding.

The trial court found in this proceeding that: “. . . it had no power of jurisdiction [in the annulment action] to award the child referred to herein to . . . Joe . . . for the further reason that . . . said child was not an issue within the pleadings of the above case ...” This finding is justified by the record and is sufficient to support the order.

The findings concerning the alleged fraud of the attorney Vernon P. Bennett are stricken from the record. (Code Civ. Proc., § 956a.) The conclusion of the trial court that the custody portions of the annulment decree are ineffective is correct. The order of modification is affirmed.

Gibson, C. J., Carter, J., Traynor, J., and Schauer, J., concurred.

Spence, J., concurred in the judgment.