Dimon v. Dimon

• Decision Date: 17 March 1953
• Citation: 254 P.2d 528,40 Cal.2d 516
• Court: California Supreme Court
• Parties: DIMON v. DIMON. S. F. 18118, 18359

Page 528

254 P.2d 528

40 Cal.2d 516

DIMON v. DIMON.

S. F. 18118, 18359.

Supreme Court of California

March 17, 1953.

Johnson, Harmon & Henderson and Robert H. Johnson, San Francisco, for appellant.

Samuel L. Fendel and Gerald D. Marcus, San Francisco, for respondent.

SHENK, Justice.

This is an action by a former wife against her former husband to obtain past and future alimony for herself and past and future support for the children of the marriage previously terminated by a divorce in Connecticut. The defendant interposed a cross-complaint alleging that certain real and personal property is held by the plaintiff in trust for the defendant.

The trial court by judgment entered on the 25th of November, 1949, awarded the plaintiff $1,950 for 'alimony and support' for herself from the date of the Connecticut decree until her remarriage on August 31, 1948; also $1,850 for the 'support, care and maintenance' of the two minor children from date of that decree until the commencement of this action on August 4, 1947; also the sum of $37.50 per month for the support of each child from the commencement of this action until majority. The judgment included an award of $500 counsel fees and $48.15 costs. On the cross-complaint the judgment was that the defendant take nothing. The defendant appealed from the judgment and the whole thereof. After the appeal was taken the court on the plaintiff's motion made an award of $750 counsel fees, $250 costs and $37.50 per month for the support of the child who was still a minor during the pendency of the appeal. There is also an appeal from that order.

The parties were married in Oregon in 1926. In 1945 they separated. In March, 1946, the plaintiff wife obtained a divorce in Connecticut based on constructive service only. That decree awarded the custody of the two children to the plaintiff and purported to award alimony and child support to the plaintiff.

Both parties are non-residents of this state. The plaintiff and the children live in Oregon, and the defendant in Nevada. The suit was brought by the plaintiff suing in her own name and right to recover money she had paid out for past support of the children and herself, and for future alimony and support of the children. The children are not parties to the action. The plaintiff concedes that the 'in personam' provisions of the Connecticut decree cannot be enforced, and the present action is not based on those provisions.

The primary question concerns the jurisdiction of California courts to enforce a support obligation of a non-resident former husband under the foregoing circumstances.

An examination of the law on the subject indicates merit in the defendant's contention that in this state a wife's right to recover alimony or support for herself is limited to the period when the parties are husband and wife.

Section 136 of the Civil Code provides: 'Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children * * *.'

Section 137, as it existed at the time this action was commenced provided that, 'When an action for divorce is pending' the court may require the payment of alimony or support. It also provided that 'During the pendency of any such action' the court may require payments for alimony, costs, attorney's fees and support and maintenance.

Section 139 as it existed at the time of the commencement of this action provided that 'Where a divorce is granted for an offense of the husband, the court may compel him to * * * make such suitable allowance to the wife for her support * * * as the court may deem just * * *.'

The language of these sections shows a consistent legislative purpose to confine the powers of the court to decree support in any form to the period when actions for divorce, annulment and separate maintenance are pending, including time on appeal and such further time as may be within the scope of the decree in the particular action. The amendments to Sections 137, 138 and 139 since this action was commenced, Stats.1951, vol. 2, p. 3910, do not change the provisions of these sections in matters here relevant. Primarily, the amendments broaden the provisions for separate maintenance where the marriage still exists. The language employed indicates a continued legislative purpose to limit the time during which application for alimony and support may be made. Our courts have consistently recognized that the existence of the marital status is a prerequisite to the granting of alimony. Colbert v. Colbert, 28 Cal.2d 276, 279, 169 P.2d 633; Carbone v. Superior Court, 18 Cal.2d 768, 771, 117 P.2d 872, 136 A.L.R. 1260; Talbot v. Talbot, 218 Cal. 1, 2, 21 P.2d 110. The application for alimony has been held to be a collateral proceeding or episode within the action for divorce, authorized for a particular purpose, but dependent for its maintenance upon the existence of the action. Kellett v. Marvel, 9 Cal.App.2d 629, 630-631, 51 P.2d 185; see also Dunphy v. Dunphy, 161 Cal. 87, 91, 118 P. 445; Hite v. Hite, 124 Cal. 389, 393, 57 P. 227, 45 L.R.A. 793; Sharon v. Sharon, 67 Cal. 185, 197, 7 P. 456, 635, 8 P. 709. In Howell v. Howell, 104 Cal. 45, 37 P. 770, it was held that the court had no jurisdiction to make an award for alimony to a wife who previously had obtained a final decree of divorce based on constructive service only. The court relied upon the provisions of the Civil Code referred to above to the effect that alimony could be decreed only 'When an action for divorce is pending'. Civ.Code, § 137. The case at bar is a close parallel to the Howell case, with the exception that in the present case the plaintiff's prior divorce decree was not issued by a court of this state and she seeks relief in a new and independent action. To permit her to prevail in this action would afford greater relief than would be available to her had she been a resident of this state and brought her original action here. The Howell decision has been followed in numerous cases, including McClure v. McClure, 4 Cal.2d 356, 359, 49 P.2d 584, 100 A.L.R. 1257; Tolle v. Superior Court, 10 Cal.2d 95, 97, 73 P.2d 607; Puckett v. Puckett, 21 Cal.2d 833, 841, 136 P.2d 1; Calhoun v. Calhoun, 70 Cal.App.2d 233, 237, 160 P.2d 923; Patterson v. Patterson, 82 Cal.App.2d 838, 842, 187 P.2d 113; Hinson v. Hinson, 100 Cal.App.2d 745, 746, 224 P.2d 405.

The plaintiff seeks to distinguish the Howell case on the ground that the action there was brought upon the prior divorce decree, whereas in the present case the action is one in equity, so called, and not dependent upon the provisions of the codes. It is claimed that the Superior Courts of this state have the same jurisdiction in equity possessed by the English Courts of Chancery unless prohibited by statute, Tulare Irr. Dist. v. Superior Court, 197 Cal. 649, 660, 242 P. 725; that although the code sections provide no authority for the cause of action she has attempted to state, they do not prohibit such an action; that 'For every wrong there is a remedy', Civ.Code, § 3523; that the powers of a court of equity should not be 'confined by the rigid rules of law', and that 'its powers should be so broad as to be capable of dealing with novel conditions.' Citing Bechtel v. Wier, 152 Cal. 443, 446, 93 P. 75, 77, 15 L.R.A.,N.S., 549.

If the plaintiff's arguments are to prevail the provisions of the Civil Code which have been held to prohibit remedies similar to that which she seeks must be disregarded. However it is urged that the long-continued application of the code sections has placed California out of harmony with other states of the Union; that it permits the husband to desert his family and flee the matrimonial domicile to the haven which the laws of this state afford him; that the wife is put to the election either of never divorcing him in a jurisdiction where she cannot get personal service on him, or of sacrificing the right to alimony however necessitous her circumstances might be. The answer would seem to be that where she is, as here, the actor in the case she is put to the election of seeking a divorce in a jurisdiction where personal service on her husband may be obtained or of proceeding in a jurisdiction where subsequent awards of alimony are authorized, such as Massachusetts, Annotated Laws of Massachusetts, 1951, vol. 6, p. 484, and New Jersey, New Jersey Revised Statutes 1937, vol. 1, tit. 2, 2:50-36 et seq., p. 269, N.J.S.A. 2A:34, 13, 23 et seq. There are states wherein the courts have recognized that when a husband is the actor and has secured a divorce from an absent wife, the latter is permitted to claim alimony in a later suit. Turner v. Turner, 44 Ala. 437; Davis v. Davis, 70 Colo. 37, 197 P. 241; Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017; Crawford v. Crawford, 158 Miss. 382, 130 So. 688; Cox v. Cox, 19 Ohio St. 502; Toncray v. Toncray, 123 Tenn. 476, 131 S.W. 977, 34 L.R.A.,N.S., 1106. In Hutton v. Dodge, 58 Utah 228, 198 P. 165, the court allowed a wife to bring a subsequent action for alimony where, in the prior divorce action on constructive service by the wife in that state, the decree specifically provided that it was subject to modification, as to alimony, at any time upon notice of motion by the plaintiff served upon the defendant within the state. Here the plaintiff would distinguish many of the cases, see McFarlane v. McFarlane, 43 Or. 477, 73 P. 203, 75 P. 139; Hall v. Hall, 141 Ga. 361, 80 S.E. 992; Darby v. Darby, 152 Tenn. 287, 277 S.W. 894, 42 A.L.R. 1379; Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659; Doeksen v. Doeksen, 202 Iowa 489, 210 N.W. 545, Staub v. Staub, 170 Md. 202, 183 A. 605, which take a view contrary to her theory of relief on the same basis that she would distinguish Howell v. Howell, supra, 104 Cal. 45, 37 P. 770, 771, namely, that the wife in those cases attempted to reopen the divorce suit and modify that decree to provide for support rather...