Grant v. Superior Court In and For City and County of San Francisco

• Decision Date: 14 March 1963
• Citation: 29 Cal.Rptr. 125,214 Cal.App.2d 15
• Court: California Court of Appeals Court of Appeals
• Parties: Paschal GRANT, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent, Ella Louise GRANT, Real Party in Interest. Civ. 21025.

Page 125

29 Cal.Rptr. 125

214 Cal.App.2d 15

Paschal GRANT, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent, Ella Louise GRANT, Real Party in Interest.

Civ. 21025.

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

March 14, 1963.

Hearing Denied May 8, 1963.

Kamini K. Gupta, Gupta & Gupta, San Francisco, for petitioner.

Noel D. Martin, San Francisco, for real party in interest.

SULLIVAN, Justice.

This is a proceeding to review an order of the trial court holding petitioner in contempt for disobedience of certain provisions of a final judgment of divorce. The principal question for our determination is whether the court below had jurisdiction in the first place to make the underlying divorce order now sought to be enforced by contempt. We have concluded that it did not. For convenience we refer to the parties herein as they appeared below, that is to say, to the real party in interest as the plaintiff and to the petitioner herein as the defendant.

On November 4, 1953, the plaintiff Ella Louise Grant commenced an action for divorce against the defendant Paschal Grant. The latter filed a cross-complaint for annulment and in the alternative for divorce. There were no children. After a trial, the court granted a divorce to the plaintiff on the ground of the defendant's extreme cruelty and denied defendant relief on his cross-complaint. In the interlocutory judgment of divorce, filed September 30, 1954, the court made an order for the disposition of the community property but no orders for the payment to the plaintiff of alimony, support, attorneys' fees or costs. The community property was awarded as follows: To the plaintiff wife, all the real property with the furniture and furnishings therein, a beauty parlor with furnishings and appurtenances; to the defendant, a Pontiac automobile. In addition the defendant was ordered to pay a clothing bill and the indebtedness on the automobile and the plaintiff was ordered to pay, generally speaking, all remaining community bills. No appeal was taken from the interlocutory judgment.

On October 21, 1958, a final judgment of divorce was entered upon the submission by plaintiff of an affidavit therefor in substantially the form required by rule of court then in effect. (Rule 20, Rules for Superior Courts, now superseded by Rule 233, Cal.Rules of Court.) Such judgment after providing for the dissolution of marriage 'further ORDERED, ADJUDGED AND DECREED as follows: that all previous orders herein be modified as follows' (emphasis added); that the defendant pay plaintiff the sum of $900 at the rate of $75 per month; that all the community property of the parties except a television set 'is hereby awarded' to the plaintiff; that all furniture removed from the residence of the parties, except the television set, be returned to the plaintiff by the defendant; that all real property 'is hereby awarded' to the plaintiff; that all bills contracted by the parties before May 15, 1958, be paid by the defendant; and that plaintiff's attorneys are awarded the additional sum of $90 in full payment of counsel fees. At the end of the judgment appears an endorsement 'APPROVED AS TO FORM' signed by defendant's then attorney. No appeal was taken from such judgment.

Thus a comparison of the two judgments shows: (1) The interlocutory judgment ordered no payment to be made to plaintiff for alimony or any other purpose; the final judgment ordered payment of $900 but failed to specify the purpose or reason therefor. (2) The final judgment changed the disposition of community property. By its terms all community property except the television set was awarded to the plaintiff. Although no award of the television set was expressly made to the defendant, this can be reasonably inferred from the provisions of the order dealing with the return of the furniture. Under the interlocutory judgment, the television set would fall within the award of household furniture to the plaintiff, providing of course it was located on the real property of the parties. In addition the interlocutory judgment awarded the Pontiac to the defendant, whereas under the final judgment it would fall within 'all of the community property' awarded to the plaintiff. (3) The final judgment changed the payment of bills. Whereas, under the interlocutory judgment, the defendant was to pay the Pontiac and clothing bills and the plaintiff was to pay all remaining community bills, under the final judgment, all bills contracted before May 15, 1958, were to be paid by the defendant. (4) The final judgment awarded attorneys' fees whereas the interlocutory judgment made no award therefor. (5) The final judgment expressly provided that 'all previous orders' were being modified.

It appears that the defendant made some payments to the plaintiff as ordered by the final judgment of divorce and that the plaintiff, apparently dissatisfied with the defendant's compliance with the court's order, initiated contempt proceedings prior to those now under review. Finally, on April 13, 1962, plaintiff obtained the issuance of an order to show cause re contempt upon her affidavit that the defendant had wilfully failed and refused to pay $675 of the $900 previously ordered, to transfer the Pontiac automobile to the plaintiff, and to return to her certain furniture and furnishings. The defendant filed a motion to quash the above order to show cause and to declare portions of the final judgment of divorce a nullity on the ground that the court had no jurisdiction to act in the matter. Defendant's position was that any provision of the judgment 'purporting to award alimony, counsel fees, and the Pontiac automobile * * * is a nullity.'

The order to show cause and the above motion of the defendant were heard at the same time. In the course of such hearing, the plaintiff called as a witness her former attorney, ¹ who, over the repeated objections of the defendant, testified substantially as follows: that after the aforementioned interlocutory judgment of divorce, the plaintiff commenced an action for separate maintenance against the defendant; that eventually after a discussion among the parties, their counsel and the trial judge in chambers, the parties 'disposed of the matter' by having a final judgment of divorce granted in the earlier action now before us; ² that the sum of $900 therein directed to be paid to plaintiff represented a compromise between the parties and 'was intended to reimburse * * * [plaintiff] for certain property aspects'; and that such sum of $900 related to certain transactions occurring between the parties after the entry of the interlocutory decree. The court thereupon made its order denying the defendant's motion to quash the order to show cause and to declare portions of the final judgment of divorce a nullity and holding the defendant in contempt of the order contained in such final judgment under which he was required to pay plaintiff the sum of $900. ³

There is and can be no dispute that the defendant, petitioner herein, has invoked the proper remedy. It is settled that as there is no appeal from an order made in a contempt proceeding, it may be reviewed upon certiorari if it is in excess of jurisdiction. (Code Civ.Proc. § 1222; Tripp v. Tripp (1922) 190 Cal. 201, 202, 211 P. 225; Phillips v. Superior Court (1943) 22 Cal.2d 256, 257, 137 P.2d 838; Nutter v. Superior Court (1960) 183 Cal.App.2d 72, 73, 6 Cal.Rptr. 404; Brady v. Superior Court (1962) 200 Cal.App.2d 69, 72, 19 Cal.Rptr. 242.)

Nor can there be any question about the legal principles which guide and govern us in our examination of the final judgment of divorce underlying the contempt. In Brady v. Superior Court, supra, Mr. Justice Tobriner has written for this court: 'A series of California cases hold that the violation of an order which exceeds the court's jurisdiction cannot produce a judgment of contempt. Mr. Justice Wood in Oil Workers Intl. Union v. Superior Court (1951) 103 Cal.App.2d 512, 230 P.2d 71 ruled: 'If it be determined that in the rendition of said judgment the trial court acted within its jurisdiction, then the inquiry ends, and the only order the reviewing court is authorized to make is one affirming the proceedings of the trial court. On the other hand, should it appear from the record as certified to us that the court either had no jurisdiction to pronounce said judgment, or exceeded its jurisdiction in doing so, then the proceedings should be annulled.' (P. 526, 230 P.2d p. 79.) [Citations.] As Witkin states: the 'view, long settled in California, is that a void order is never binding, and that its violation cannot constitute contempt. * * *'' (200 Cal.App.2d at p. 73, 19 Cal.Rptr. at p. 244.) We therefore proceed to determine whether, in rendering the final judgment of divorce, the trial court acted in excess of its jurisdiction.

It is well settled that where, as 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. (Dupont v. Dupont (1935) 4 Cal.2d 227, 228, 48 P.2d 677; Bacigalupi v. Bacigalupi (1925) 72 Cal.App. 654, 659, 238 P. 93; Borg v Borg (1938) 25 Cal.App.2d 25, 29-30, 76 P.2d 218; Overell v. Superior Court (1938) 29 Cal.App.2d 418, 420, 84 P.2d 789; Harrold v. Harrold (1954) 127 Cal.App.2d 582, 584, 274 P.2d 183; Brink v. Brink (1956) 143 Cal.App.2d 527, 528-529, 299 P.2d 991.) Although an interlocutory judgment of divorce does not dissolve the marriage, where it neither awards alimony to the wife nor reserves the jurisdiction...