Cushman v. Cushman

• Decision Date: 01 March 1960
• Citation: 178 Cal.App.2d 492,3 Cal.Rptr. 24
• Court: California Court of Appeals Court of Appeals
• Parties: Julia M. CUSHMAN, Plaintiff and Respondent, v. W. Mitchell CUSHMAN, Defendant and Appellant. Civ. 24148.

Page 24

3 Cal.Rptr. 24

178 Cal.App.2d 492

Julia M. CUSHMAN, Plaintiff and Respondent, v. W. Mitchell CUSHMAN, Defendant and Appellant.

Civ. 24148.

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

March 1, 1960.

Melvin B. Grover, Los Angeles, for appellant.

William Pitt Hyde, Los Angeles, for respondent.

LILLIE, Justice.

Defendant appeals from an interlocutory judgment awarding plaintiff a divorce, custody of and support for the minor child, and $1 per month alimony. He seeks modification of the judgment by striking therefrom that portion which orders him to pay alimony; and the sole issue before this court is whether it was error for the trial judge to make such an award. Citing, as controlling, a line of authority beginning with Parker v. Parker, 203 Cal. 787, 266 P. 283, appellant relies upon the longestablished rule that where a divorce decree is entered upon a default the relief granted may not exceed that demanded in the complaint, the soundness of which is not here open to argument; but it is clear from the record before us that the rule has no application to the instant case which was not heard as a default, and appellant's position, predicated entirely upon the erroneous assumption that the within judgment was entered upon a default hearing, is without merit.

Whether a judgment is the result of a default is, of course, dependent upon the procedural steps followed by the parties, and their conduct and intention in connection with the hearing (Blackwell v. Blackwell, 86 Cal.App.2d 513, 194 P.2d 796); and the record in the case at bar unquestionably demonstrates that the issues presented to the trial court by way of the pleadings, with the exception of that relating to the divorce itself, were not decided upon a default hearing--but on the contrary were contested issues tried by the parties in the lower court at the specific request of defendant's counsel, in a regular trial proceeding in which he and defendant actively participated and introduced evidence on the latter's behalf.

Plaintiff's complaint neither prayed for alimony nor mentioned the same in the body of the pleading. Defendant filed his answer denying the material allegations of the complaint, and the cause was regularly set for trial. On the day it was called, both parties and their counsel were present and answered 'ready,' after which Mr. Grover, defendant's attorney, volunteered to the court the following preliminary statement: 'This matter will be heard as a default. The defendant will not contest the action for divorce. The only contest will be as to the amount of child support payment and there is no community property to be disposed of. It has been disposed of by agreement between the parties satisfactorily and there is no question of alimony.' Mr. Lemaster, plaintiff's counsel, then responded: 'It is agreed, your honor, that a dollar alimony will be allowed until further order of the court,' whereupon, no objection thereto having been voiced by defendant, he proceeded with the trial offering testimony relative to the divorce. Plaintiff rested her case without offering any evidence on the issue of support. Defendant then offered proof relative to his earning capacity and testified concerning his financial status; and, at the conclusion of the trial, the judge made his oral order granting the divorce and custody and support of the child, and awarding 'one dollar a year (sic) alimony,' to which defendant's counsel immediately responded: 'Thank you, your honor.'

The cases relied upon by appellant are not in point, for therein, either the matter was heard strictly as a default in which no appearance was made by the defaulting party (Bennett v. Bennett, 50 Cal.App. 48, 194 P. 503; Parker v. Parker, 203 Cal. 787, 266 P. 283; Eddy v. Eddy, 64 Cal.App.2d 672, 149 P.2d 187; Majors v. Majors, 70 Cal.App.2d 619, 161 P.2d 494; Buchanan v. Buchanan, 114 Cal.App.2d 120, 249 P.2d 577), or while an appearance was made, the participation of counsel for the defaulting party was of such a minor degree that it was obvious a default was intended (Peck v. Peck, 52 Cal.App.2d 792, 127 P.2d 94; Darsie v. Darsie, 49 Cal.App.2d 491, 122 P.2d 64; Blackwell v. Blackwell, 86 Cal.App.2d 513, 194 P.2d 796).

In Peck v. Peck, supra, 52 Cal.App.2d 792, 127 P.2d 94, which appellant cites as controlling, the court labeled the hearing a default; but the situation there can hardly be classed as analogous, for the parties clearly intended that the matter be heard as a default. Appellant's complaint for an annulment was answered by respondent, who filed a cross-complaint for divorce, which appellant answered. When a property settlement agreement was entered into, respondent filed her amended cross-complaint incorporating its terms, to which appellant filed no answer. The cause was actually called as a default on the amended complaint. At the hearing appellant was not personally present; and, although 'counsel for both plaintiff and defendant appeared and participated therein,' (52 Cal. App.2d at page 793, 127 P.2d at page 94), the participation of his counsel was obviously of a limited nature, no proof having been offered on appellant's behalf. Nor is Blackwell v. Blackwell, 86 Cal.App.2d 513, 194 P.2d 796, of aid to appellant, for therein an answer was filed to the complaint but the defaulting party was not present at the hearing; and although his counsel appeared, he took no part in the proceedings except to call the attention of the court to the fact that respondent was seeking support only to a certain date. He introduced no evidence on appellant's behalf. Furthermore, it was 'clear from appellant's letters that he intended to let the action proceed without contest and to abandon the defenses pleaded in his answer.' 86 Cal.App.2d at page 516, 194 P.2d at page 797.

We find in the instant case none of the elements of a default hearing on the issue before us, no intention to let the action proceed without a contest, and no abandonment of the support issues raised by the pleadings--defendant filed his appearance by way of answer; plaintiff requested no default and none was entered; the cause was regularly set down for trial; when the case was called all parties and counsel were present and answered 'ready'; and the trial proceeded in the regular manner, and when plaintiff rested her case, defendant introduced evidence on his own behalf on the contested issues, upon which the court later made its order. Although defendant plainly had no concern with the divorce, was willing to let it go by default and so notified the trial court, he specifically advised the court and opposing counsel he was contesting the issue of support--and actively did so. The mere fact he submitted the divorce issue without contest does not constitute the trial on the other issues involved in the cause, a default hearing; and to advance the position that it did is to completely ignore the record.

The obvious reasoning behind the rule that where a divorce decree is entered by default, alimony may not be granted if not prayed for in the complaint, is that a party has a right to assume that the judgment following his default will not go beyond the issues presented by the complaint and the relief asked therein, and if a judgment other than that demanded is taken against him, he is deprived of his day in court (Peck v. Peck, 52 Cal.App.2d 792, 127 P.2d 94; Parker v. Parker, 203 Cal. 787, 266 P. 283); and this rationale is manifest in the cases cited by appellant. But when, as here, an appearance has been made by defendant, he and his counsel are both present at the trial and actively participate therein, and...