Cochran v. Cochran

• Decision Date: 08 December 1970
• Citation: 13 Cal.App.3d 339,91 Cal.Rptr. 630
• Court: California Court of Appeals
• Parties: Margaret B. COCHRAN, Plaintiff and Respondent, v. Howard M. COCHRAN, Defendant and Appellant. Civ. 26982.

Page 630

91 Cal.Rptr. 630

13 Cal.App.3d 339

Margaret B. COCHRAN, Plaintiff and Respondent, v.Howard M. COCHRAN, Defendant and Appellant.

Civ. 26982.

Court of Appeal, First District, Division 1, California.

Dec. 8, 1970.

Hearing Denied Feb. 10, 1971.

Walter T. Winter, Peter Schwarz, San Francisco, for defendant and appellant.

Cyril Saunders, San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

DefendantHoward M. Cochran has appealed from a final judgment of divorce entered in favor of Margaret B. Cochran'except that portion that determines that the marriage between the parties is dissolved and that portion that determines that the provisions in the interlocutory judgment herein is made binding upon the parties hereto.'¹

The defendant contends that since there was a reconciliation after the entry of an interlocutory decree of divorce, the plaintiff had to elect whether to proceed under the terms of that decree on the theory there had been a conditional reconciliation which failed, or to proceed on the theory that the interlocutory decree was a nullity because of the reconciliation, and assert such rights as accrued to her during the entire marriage, including the period of reconciliation.He asserts that having elected to proceed on the interlocutory decree, from which no appeal had been taken, she was barred by its terms, and the court erred in the final decree by awarding her alimony, which had been waived in connection with the entry of the interlocutory decree, in awarding her costs and attorney's fees, and in awarding her a portion of property allegedly accumulated during the period of reconciliation.An examination of these contentions in the light of the record leads to the conclusion that the court erred in awarding the plaintiff alimony, attorney's fees and costs, and that the judgment must be modified by deleting these provisions from the final decree.

The Interlocutory Judgment

On January 24, 1966the plaintiff filed her complaint for divorce on the grounds of the defendant's extreme cruelty.She alleged marriage on December 7, 1964 and separation January 18, 1966.She prayed for a divorce, for an award of the community property, and for alimony.The defendant filed an answer and a stipulation waiving notice of time and place of trial and findings of fact and conclusions of law.At the hearing the plaintiff testified that she was not seeking alimony and that she knew that by not seeking alimony at that time she would at no time be able to come back and obtain any monies from the defendant.She further testified that she had agreed to accept the sum of $1,200 as her share in any community property that might exist between the defendant and herself.

The interlocutory judgment of divorce, entered February 10, 1966 on a printed form, erroneously indicates that the defendant defaulted in the proceedings, whereas he in fact filed an answer and was represented by his attorney at the hearing.Inserted in the form were provisions awarding the plaintiff $1,200 as her interest in the community property, and ordering the defendant to pay the community debts and obligations, and plaintiff's attorney's fees and costs.There was no provision for alimony.No appeal was taken from this judgment.

The effect of the interlocutory decree and the status of the parties at that stage of the proceedings was, as outlined by this court in Grant v. Superior Court(1963)214 Cal.App.2d 15, 29 Cal.Rptr. 125, as follows: 'It is well settled that where, as here, an interlocutory judgment of divorce has become final in the sense that it is no longer subject to appeal, motion for new trial or relief pursuant to section 473 of the Code of Civil Procedure, it is res judicata on all questions determined therein including the property rights of the parties.Absent any continuing authority of the court to modify its orders relating to alimony, the trial court is without jurisdiction to vacate or modify such judgment in any way.(Citations.)Although an interlocutory judgment of divorce does not dissolve the marriage, where it neither awards alimony to the wife nor reserves the jurisdiction to make an allowance for her support, such judgment terminates the obligation of support and relieves the husband from all liability therefor.(Citations.)In such event, the final dissolution of the marriage is the only question held in abeyance pending the entry of the final decree.'(214 Cal.App.2d at p. 20, 29 Cal.Rptr. at p. 128.See also, Estate of Abila(1948)32 Cal.2d 559, 560, 197 P.2d 10;Leupe v. Leupe(1942)21 Cal.2d 145, 148, 130 P.2d 697;McClure v. McClure(1935)4 Cal.2d 356, 359, 49 P.2d 584;Olson v. Superior Court(1917)175 Cal. 250, 165 P. 706;Brown v. Brown(1915)170 Cal. 1, 3, 147 P. 1168;De Luca v. Superior Court(1968)262 Cal.App.2d 254, 258--259, 68 Cal.Rptr. 535;Estate of Smith(1966)241 Cal.App.2d 205, 209, 50 Cal.Rptr. 374;Estate of Hudspeth(1964)225 Cal.App.2d 759, 764, 37 Cal.Rptr. 778;Carlson v. Carlson(1963)221 Cal.App.2d 47, 53--55, 34 Cal.Rptr. 195;Adamson v. Adamson(1962)209 Cal.App.2d 492, 501, 26 Cal.Rptr. 236;Broome v. Broome(1951)104 Cal.App.2d 148, 231 P.2d 171;andOverell v. Superior Court(1938)29 Cal.App.2d 418, 420, 84 P.2d 789.Cf.Bernard v. Bernard(1947)79 Cal.App.2d 353, 355, 179 P.2d 625.)

The Reconciliation

The declaration filed by plaintiff, in which she sought the relief which was ultimately granted, recites: 'That within two weeks after the interlocutory decree was signed in this matter, the defendant * * * phoned plaintiff many times, begging her to return to him.She was then living in Vancouver, Canada.On or about May 1, 1967, (sic)they became reconciled, and she returned from Vancouver, Canada, with (defendant) to San Francisco, where they continued to live as man and wife.Between the 1st day of May, 1967, (sic) and October 20, 1968, the plaintiff was informed by defendant that they had accumulated a sum in excess of $8,000, all of which is in the possession and control of the defendant.That during the period of time between May 20, 1968, and October, 1968, the defendant was guilty of cruel and inhuman treatment toward this plaintiff.The treatment was such and so severe that plaintiff is now under a doctor's care.'The prayer was for $200 per month support until further order of court and for attorney's fees in the sum of $300, and $25 costs.On December 4, 1968, the date plaintiff executed her declaration, the trial court issued its order commanding the defendant to show cause 'why plaintiff should not be granted a final decree of divorce and that defendant should not pay plaintiff one half of all community property accumulated by the parties between the 10th day of May, 1966, and the 20th day of October, 1968, and shall pay plaintiff the sum of $200 per month as alimony and support and attorney's fees in the sum of $300 and court costs of $25.'

The matter came on regularly for hearing on December 23, 1968.The plaintiff's attorney asserted he was seeking for his client a final decree, an accounting of funds that the couple earned during a period of reconciliation, and support.The defendant's counsel immediately pointed out that the interlocutory decree was res judicata as to the matters covered therein.Although he did not oppose the entry of a final decree, he objected to relitigating in this proceeding the questions of the defendant's cruelty, of his obligation to support the plaintiff, and of the property rights of the parties.

It was brought out that the plaintiff had filed a new action for divorce in which another judge of the same court had denied an application for support on the grounds of the pendency of this prior action, and that it had been recommended that this action be dismissed so that the plaintiff could proceed in the new action.The plaintiff declined to so do.

The court overruled the defendant's objections and indicated that it would determine the effect of the alleged reconciliation, and the rights of the parties to any community property accumulated during the period following the interlocutory decree.

The plaintiff testified that the defendant contacted her by telephone in Vancouver, British Columbia, where she had moved following the interlocutory decree, in March 1966, and that in April he came to see her.She stated, 'He * * * asked me to go back to him, that he needed me and wanted me and loved me.And that if I would come back to him that he would give up all his bad company and his bad habits, and at least he would try, and so then he came back May 15 and we packed up my furniture and brought it back to San Francisco.'The plaintiff affirmed that at that time she forgave the defendant's past conduct and all of the problems that occurred between them previously, and that he said he would give up all his bad company.She said that she did not impose any conditions for coming back, and only asked him to be a little kind and not get so flared up with temper.She acknowledged that he gave up his bad company for a little while, but that problems arose practically from the first, following her return.

At the end of 1967 problems arose.The defendant presented the plaintiff with a document dated November 22, 1967, which she signed involuntarily.It acknowledged the receipt of $1,000, which he in fact paid her, and recited, 'Subsequently we attempted to try a conditional reconciliation which proved unsuccessful and we have separated again without abrogating any of the provisions contained in the interlocutory judgment of divorce.'The defendant suggested that she go back to Canada for a holiday until "we are settled down in our minds."They talked it over, however, and decided to get their own apartment, but that attempted reconciliation failed.

The plaintiff returned to Canada on December 15, 1967 leaving a tearful defendant at the airport.He phoned her on Christmas and on New Year's Day, and...