Hall v. Hall
| Decision Date | 04 March 1954 |
| Citation | 42 Cal.2d 435,267 P.2d 249 |
| Court | California Supreme Court |
| Parties | HALL v. HALL. L. A. 22517. |
Sheppard, Mullin, Richter & Balthis, James C. Sheppard and Richard B. Hoegh, Los Angeles, for appellant.
Moore, Trinkaus & Binns and Henry T. Moore, Los Angeles, for respondent.
Peirson Hall has appealed from that part of an interlocutory decree which ordered him to pay alimony and the fees of Mrs. Hall's attorneys. He has also appealed from an order requiring him to pay the cost of printing her brief on the appeal and $200 as attorney's fees in connection therewith.
Pursuant to their stipulation, the decree divided the community property of the parties, compels Hall to pay $100 per month for the support of a minor child and to maintain in force certain insurance policies upon his life. In addition, he is ordered to pay $350 per month for the support of Mrs. Hall and $750, in monthly installments, as the fees of her attorneys.
Hall moved for a new trial upon the ground that the allowance of support and maintenance was unreasonable and excessive. He also moved to vacate the judgment and enter a different judgment upon the ground that the conclusion of law requiring the payment of support and maintenance was neither consistent with, nor supported by, the findings of fact. Both motions were denied.
Mrs. Hall urges that the appeal, because filed more than 60 days after the entry of the decree, Rules on Appeal, rule 2(a), was not timely and must be dismissed. Although recognizing that either of the motions made by Hall, if proper, would extend the time within which an appeal may be taken, Rules on Appeal, rules 3(a) and 3(b), she contends that neither of them lies to review that portion of a decree of divorce which awards alimony. She relies upon the settled rule that a motion for a new trial which is not authorized by statute does not toll the running of the time within which an appeal must be taken, Reeves v. Reeves, 34 Cal.2d 355, 359, 209 P.2d 937, and argues, by way of analogy, that the same rule shoud obtain when a motion to vacate a judgment is made improperly.
A new trial is defined by section 656 of the Code of Civil Procedure to be 'a reexamination of an issue of fact in the same court after a trial and decision by a jury, court or referee.' This section must be read in conjunction with section 590 of that code which declares that an issue of fact arises upon 'a material allegation in the complaint controverted by the answer'. Harper v. Hildreth, 99 Cal. 265, 270, 33 P. 1103. The decisive question here presented is whether the allowance of support and maintenance constitutes the determination of an 'issue of fact' within the meaning of these code provisions.
In Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 31 L.R.A. 411, the husband sought to annul his marriage. Judgment was for the wife, and the court awarded counsel fees to her pursuant to section 137 of the Civil Code, which at that time provided: 'When an action for divorce is pending, the court may, in its discretion, require the husband * * * to pay as alimony any money necessary to enable the wife * * * to support herself or her children, * * * or to prosecute or defend the action.' A motion for a new trial, one of the grounds being that counsel fees should not have been allowed, was denied.
As then allowed by statute, the husband appealed from the order denying a new trial; he also noticed an appeal from the judgment. 'As the appeal from the judgment was taken too late', the court said, 'we cannot consider the objections to the allowance of alimony.' The appeal was dismissed and the order denying a new trial affirmed. 'The allowance of alimony is an incident to an action for a divorce', said the court, 111 Cal. at page 269, 43 P. at page 758.
This principle was followed by the District Court of Appeal in two later cases in which there had been an allowance of permanent support and maintenance pursuant to section 139 of the Civil Code. Stanton v. Stanton, 113 Cal.App. 462, 465-466, 298 P. 524; Scheibe v. Scheibe, 57 Cal.App.2d 336, 342-343, 134 P.2d 835. In the Stanton case there was a lump-sum award of $20 per week for alimony and support of a child. The husband contende, as justifying the reversal of the interlocutory decree of divorce, that there was no evidence or findings to support the award. After noting the additional fact that the complaint did not demand support, the court stated: 'But * * * an allowance of alimony or money for the support of the wife is an incident to a divorce action and the determination as to allowance of alimony is not the trial of an issue in the case.' 113 Cal.App. at page 466, 298 P. at page 525. That language was quoted with approval in Scheibe v Scheibe, supra, where an allowance of alimony had been made in the absence of either allegations or evidence in regard to the necessities of the wife. The award was upheld as being 'incidental to the determination of a divorce action'. 57 Cal.App.2d at page 342, 134 P.2d at page 840.
Justification for the broad language appearing in the Hunter case and similar decisions of that period may be found in the then prevailing procedure for obtaining temporary support and counsel fees. Usually, an allowance was made upon the ex parte application of the wife without previous notice to the husband. See Mudd v. Mudd, 98 Cal. 320, 321, 33 P. 114. It was presumed that the court would give proper consideration as to the needs of the wife, the ability of the husband to pay, and the value of any legal services rendered. Turner v. Turner, 80 Cal. 141, 144, 22 P. 72; Mudd v. Mudd, supra, 98 Cal. at page 321, 33 P. 114; Rose v. Rose, 109 Cal. 544, 546, 42 P. 452. The husband's remedy for an improvident order was by a motion to set it aside or to modify it. Mudd v. Mudd, supra, 98 Cal. at page 322, 33 P. 114. Normally, the proceeding upon a wife's application was conducted with greater informality than one in which the parties appeared as adversaries. Cf. Arnold v. Arnold, 215 Cal. 613, 615, 12 P.2d 435. Furthermore, even under the modern practice by which the necessity for an allowance for temporary support or counsel fees is presented in a hearing initiated by an order to show cause, for the purpose of appeal, the proceeding is considered to be collateral to the main action. Lincoln v. Superior Court, 22 Cal.2d 304, 310, 139 P.2d 13.
However, the legal principles properly to be considered in determining whether an award of temporary alimony or counsel fees, now authorized by sections 137.2 and 137.3 of the Civil Code, may be reversed upon a motion for a new trial have no application to an allowance of permanent support and maintenance made under section 139 of the Civil Code. That section 'clearly contemplates that the right to alimony, as well as other financial and property rights, shall have been presented and litigated in the action for divorce, and established by the judgment'. Howell v. howell, 104 Cal. 45, 47, 37 P. 770, 771. Otherwise stated, the right to permanent support and maintenance 'is properly at issue' at the time the cause of action for divorce is tried and determined; the ensuing interlocutory decree is intended to bring an end to all matters so litigated and in controversy. McCaleb v. McCaleb, 177 Cal. 147, 149, 169 P. 1023; Wilson v. Superior Court, 31 Cal.2d 458, 463, 189 P.2d 266.
Reeves v. Reeves, supra, states no contrary rule. There the appeal from an interlocutory decree of divorce was dismissed upon the ground that the time within which it might have been taken was not extended by proceedings on motion for a new trial. But the decree was obtained by default, and in holding the motion improper, the court followed the firmly established rule that a default proceeding is not the 'trial of an issue' within the meaning of section 626 of the Code of Civil Procedure. 34 Cal.2d at page 359, 209 P.2d 937; Foley v. Foley, 120 Cal. 33, 36-37, 52 P. 122.
In the present case, Hall's motion for a new trial was made upon the ground that the allowance of support and maintenance is 'unreasonable and excessive and contrary to the provisions of Section 139 of the California Civil Code'. Other points relied upon by him were that 'the evidence is insufficient to justify the decision', and 'errors in law occurring at the trial and excepted to by the defendant' entitle him to a further hearing. The grounds upon which such a motion may be based, Code, Civ.Proc. § 657, are as applicable to a re-examination of an allowance of permanent support and maintenance as to any other controversy adjudicated by a court sitting without a jury. On that question, as well as on other material...
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