Darter v. Magnussen

• Citation: 342 P.2d 528,172 Cal.App.2d 714
• Decision Date: 10 August 1959
• Docket Number: 18195,Nos. 18153,s. 18153
• Parties: R. J. DARTER, Executor of the Last Will and Testament of Anna Magnussen, Deceased, substituted for Anna Magnussen, Plaintiff and Respondent, v. Carsten MAGNUSSEN, Defendant and Appellant (two cases).
• Court: California Court of Appeals Court of Appeals

Page 528

342 P.2d 528

172 Cal.App.2d 714

R. J. DARTER, Executor of the Last Will and Testament of Anna Magnussen, Deceased, substituted for Anna Magnussen, Plaintiff and Respondent, v. Carsten MAGNUSSEN, Defendant and Appellant (two cases).

Nos. 18153, 18195.

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

Aug. 10, 1959.

Robert H. Kroninger, Oakland, for appellant.

Harris, Darter & Older, Oakland, Cyril Viadro, San Francisco, of counsel, for respondent.

BRAY, Presiding Justice.

Two consolidated appeals by defendant in a divorce action. One (No. 18153) is from an order denying defendant's motion for modification of the interlocutory decree. The other (No. 18195) is from an order appointing a receiver to sell real property as provided in that decree.

Questions Presented.

1. Did the court have power by reason of Anna's death to modify the community property award to her in the interlocutory decree?

2. Did the court abuse its discretion in appointing a receiver?

3. Did the court err in refusing to strike from the interlocutory decree the award to plaintiff of attorney's fees?

Record.

On March 11, 1957, plaintiff Anna Magnussen was granted an interlocutory decree of divorce on grounds of defendant's extreme cruelty. Finding that the property was community property, the court awarded Anna three duplexes, a triplex and certain personal property. Defendant was awarded certain personal property and was ordered to pay $75 per month for support of the minor child.

The parties owned a community property ranch of some five acres. The disposition of this ranch was set forth in paragraph X of the decree, and will be discussed later.

No appeal was taken from that decree by either party.

Anna died April 28, (approximately 1 1/2 months after the entry of the interlocutory decree). May 10, defendant moved to modify the interlocutory decree, principally by striking paragraph X and redistributing the ranch property on the ground of a material change in circumstances in that plaintiff had died. The court denied the motion. Defendant appealed. December 18, Darter as executor of Anna's estate, who had been substituted for Anna in the action, moved for an order appointing a receiver to sell the ranch 'in satisfaction of the interlocutory judgment' and for an order directing payment of attorney's fees in connection with said motion. An order appointing receiver was made and denying Darter's request for attorney's fees. Defendant appealed. The denial of attorney's fees was not appealed.

1. Court had no Power to Change Paragraph X of the Interlocutory Decree.

That paragraph provided that the ranch be sole within 90 days; 'that the Court hereby reserves jurisdiction to make any further order respecting the sale of said property, including the appointment of a commissioner, that the court may deem necessary or advisable.' The proceeds, after payment of expenses of sale, 'are hereby allocated as follows: '1. That the sum of $20,000 be paid to plaintiff herein as and for her share of community property and in lieu of alimony, to enable said plaintiff to reduce or discharge existing encumbrances on the real estate hereinabove awarded to her' (the duplexes and triplex hereinbefore mentioned). The balance of the proceeds after the payment of $4,000 attorney's fees to Anna and $4,000 attorney's fees to defendant, was to be paid defendant.

The trial court is without jurisdiction to modify an unqualified disposition of property rights made in an interlocutory decree of divorce except in accordance with the methods applicable to judgments generally (e. g. modification on appeal or under section 473, Code of Civil Procedure). Leupe v. Leupe, 1942, 21 Cal.2d 145, 148, 130 P.2d 697. An entirely different situation exists with respect to alimony. Section 139, Civil Code, provides for subsequent modification and termination. (Id., 21 Cal.2d at page 150, 130 P.2d at page 700; Dupont v. Dupont, 1935, 4 Cal.2d 227, 228, 48 P.2d 677; McClure v. McClure, 1935, 4 Cal.2d 356, 360, 49 P.2d 584, 100 A.L.R. 1257.

The award of $20,000 was not alimony but an award of community property. The court said so in the decree. Even though it added 'and in lieu of alimony' it said that the money was to enable plaintiff 'to reduce or discharge existing encumbrances on the real estate hereinabove awarded to her.' Defendant had remarried after obtaining a Nevada divorce. The court at the hearing stated its desire to avoid alimony because of the second wife. The provision in the decree reserving jurisdiction 'to make any further order respecting the sale of said property' (emphasis added) did not purport to modify the property disposition. The court stated at the hearing: '* * * if not so sold, the Court reserves jurisdiction to make any appropriate order in the premises to accomplish the sale thereof, including the appointment of a commissioner if that becomes necessary or advisable.' (Emphasis added.) It is obvious from the decree itself as well as from the statement of the court that the court's retaining of jurisdiction concerning the sale was without in any way affecting the finality of the property award.

Defendant contends that the court had no power to make a present disposition of the community property in the interlocutory decree, that the decree should have provided that the disposition would be effective only upon entry of the final decree, citing Dowd v. Dowd, 1952, 111 Cal.App.2d 760, 765, 245 P.2d 339; Slavich v. Slavich, 1951, 108 Cal.App.2d 451, 457, 239 P.2d 100; Dallman v. Dallman, 1958, 164 Cal.App.2d 815, 819, 331 P.2d 245. Those cases, however, were appeals from the interlocutory decree. In Leupe v. Leupe, supra, 21 Cal.2d 145, 130 P.2d 697, the court pointed out that it is fully established by the cases in this state that an immediate disposal of the property upon an interlocutory decree of divorce is within the jurisdiction of the trial court, although in cases dealing with direct appeals from interlocutory decrees it has been held that the trial court should not dispose of the community property immediately by such decree but should wait until such time as the marriage is absolutely dissolved. As there pointed out, when the interlocutory decree becomes final it is a conclusive adjudication and is res judicata with respect to awards of community property. Here the interlocutory decree had become final and the court had no power to strike the portion of the decree dealing with community property or to make any other disposition of it. As said in Leupe v. Leupe, supra, 21 Cal.2d at page 149, 130 P.2d at page 700, 'The time for appeal having elapsed, the determination of property issues in the interlocutory decree became final and was no longer subject to modification * * *.' If the disposition was erroneous, defendant's remedy would have been by appeal from the decree and not by this motion. Moreover, the death of Anna ended the interlocutory period. See Wilson v. Wilson, 1946, 76 Cal.App.2d 119, 172 P.2d 568, where we said: 'There can be no doubt at all that the trial court has jurisdiction to make a present disposition of the community property in the interlocutory decree, and that upon that decree becoming final, it measures finally the property rights of the parties.' 26 Cal.App.2d at page 130, 172 P.2d at page 574.

The death of one of the parties to a suit for divorce abates the action and terminates the jurisdiction of the court to proceed with the action or to make any further determination of property rights, alimony, costs or attorney's fees. Bevelle v. Bank of America Nat. Trust & Savings Ass'n, 1947, 80 Cal.App.2d 333, 334, 181 P.2d 730. However, the death of a party does not affect the court's power to take such action as may still have to be taken to enforce the property rights adjudicated by the interlocutory decree.

Section 132, Civil Code, provides in part that 'The death of either party after the entry of the interlocutory judgment does not impair the power of the court to enter final judgment * * *.' In Gould v. Superior Court, 1920, 47 Cal.App. 197, 191 P. 56, the court in denying a petition for rehearing, in referring to its decision stated: 'It was held that, although the court may have lost jurisdiction to make a final decree, after the death of the husband, dissolving the marriage status, the property rights fixed by the agreement and confirmed by the interlocutory decree still remained in existence, and that as to them the court retained jurisdiction to enter the final decree in the manner specified in the interlocutory decree.' 47 Cal.App. at page 204, 191 P. at page 59. The rationale of the decision was the contract basis of the...