Hall v. Superior Court In and For Los Angeles County

• Decision Date: 28 October 1955
• Citation: 45 Cal.2d 377,289 P.2d 431
• Court: California Supreme Court
• Parties: Peirson M. HALL, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Gertrude M. Hall, Real Party In Interest and Respondent. L. A. 23450.

Page 431

289 P.2d 431

45 Cal.2d 377

Peirson M. HALL, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent Gertrude M. Hall, Real Party In Interest and Respondent.

L. A. 23450.

Supreme Court of California, In Bank.

Oct. 28, 1955.

Irving M. Walker, James C. Sheppard and Sheppard, Mullins, Richter & Balthis, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

William J. Currer, Jr., Los Angeles, for real party in interest and respondent.

EDMONDS, Justice.

Peirson M. Hall appealed 'from that part of an interlocutory decree which ordered him to pay alimony and the fees of Mrs. Hall's attorneys.' This court ordered that '(i)nsofar as the judgment awards Mrs. Hall $350 per month for support and maintenance, it is reversed; in all other respects it is affirmed.' Hall v. Hall, 42 Cal.2d 435, 436, 442, 267 P.2d 249, 253.

On the same day that the remittitur was filed, upon the ex parte application of Hall, a final judgment of divorce was granted, incorporating by reference the provisions of the interlocutory decree. Mrs. Hall attempted unsuccessfully to have execution on the judgment issued. She then moved to vacate the judgment. While that motion was pending, she obtained orders to show cause why Hall should not be required to pay temporary alimony, costs and attorneys' fees 'during the pendency of this action.' Before the time set for the hearing upon these orders, Hall filed written opposition and gave notice of motions for entry of final judgment and for orders determining his existing liability, if any, and fixing the amount of permanent alimony.

There have been no rulings made on the orders to show cause nor upon subsequent motions by Mrs. Hall for temporary alimony and attorneys' fees. However, the final judgment has been set aside upon the grounds that it was void and obtained by inadvertence. Hall noticed an appeal from the order of vacation but later abandoned it.

A minute order recites that the 'Motion of defendant for Order Determining Liability of Defendant, if any, and Fixing Amount thereof' came on for hearing and that the 'Oral motion of counsel for defendant to fix amount of permanent alimony is argued and denied.' Thereafter, the court denied a motion to reconsider that ruling. It also denied a motion later made to 'reconsider its decision re: Liability of Defendant and the fixing of permanent alimony;' and denied a 'renewed motion' to fix permanent alimony.

By his present petition, Hall seeks a writ of mandate commanding the superior court 'to hear and determine the motion of your petitioner for an order fixing the amount of permanent alimony' to be paid to Mrs. Hall and requiring it to 'desist and refrain' from hearing her application for temporary alimony, costs and attorneys' fees. But the record shows that the superior court has heard and determined adversely to Hall his motion to fix permanent alimony as well as three subsequent motions to reconsider its ruling. By his demand for affirmative action he is endavoring to compel the court to hear a motion which has been ruled upon.

However, the memorandum of points and authorities and briefs in support of the petition state that the order made upon his motion to determine his liability for permanent alimony was erroneous. His position is that the remittitur in Hall v. Hall, supra, commands the trial court to fix permanent alimony and that it has no jurisdiction to give any other relief.

The judgment and order of this court on the appeal was a partial reversal of the portion of the judgment from which the appeal was taken, without directions. In a civil action such a reversal remands the cause for a new trial. Erlin v. National Union Fire Ins. Co., 7 Cal.2d 547, 549, 61 P.2d 756; In re Estate of Pusey, 177 Cal. 367, 371, 170 P. 846. '(A)n unqualified reversal remands the cause for a new trial (citation) and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed so far as applicable.' Central Sav. Bank of Oakland v. Lake, 201 Cal. 438, 443, 257 P. 521, 523. This principle is equally applicable to a partial reversal of a judgment. Cf. Pillsbury v. Superior Court, 8 Cal.2d 469, 472, 66 P.2d 149.

In Hall v. Hall, supra, the partial reversal of the judgment was unqualified, and the opinion in no way restricts the scope of a retrial of the issues set at large. The basis of the order was the conclusion that 'the needs of the respective parties do not justify the amount of alimony here allowed to the wife.' 42 Cal.2d at page 442, 267 P.2d at page 253. Necessarily that conclusion rests upon the evidence then before the court. Cf. Erlin v. National Union Fire Ins. Co., supra, 7 Cal.2d at page 548, 61 P.2d 756. Mrs. Hall now may be able to present evidence tending to show different circumstances than those shown by the record in the former trial, and she so asserts in affidavits in support of her motions for temporary alimony and counsel fees.

Hall does not allege, and the record does not show, that he has complied with the rules govening a setting for trial in the superior court. Rule 6, Rules for Superior Courts. Essentially, by this proceeding he is seeking to compel the superior court to fix the amount of permanent alimony without a retrial. But, without the consent of the parties, the trial court could not determine that matter solely on the basis of the record in the former trial. Blache v. Blache, 37 Cal.2d 531, 535, 233 P.2d 547. To do so would be prejudicial error, Heinfelt v. Arth, 4 Cal.App.2d 381, 384, 41 P.2d 191, and there is no legal basis for compelling by writ of mandate action by the trial court which should be obtained under established procedure. If, as Hall claims, the procedure for setting the matter for trial may cause hardship through delay, there is available to him a method of advancing the date of a trial. Rule 12, Rules for Superior Courts.

The further contention is made that Mrs. Hall waived her procedural rights by waiting more than five months after the remittitur was filed to have the cause set for retrial and by not moving to strike Hall's motion that permanent alimony be fixed by the court. During that period, however, Hall had equal opportunity to have the case set for retrial, and the trial judge was justified in concluding that Mrs. Hall's failure to do so resulted from the uncertainty created by her husband's entry of a final judgment of divorce and the necessity of contesting that order. No authority is cited for the proposition that Mrs. Hall waived her right to object to Hall's motion by proceeding to argue it at the time set for a hearing upon it instead of interposing a motion to strike. In any event, all of these objections, at most, would be grounds for showing an abuse of discretion by the trial judge in failing to dispense with the procedure required for setting the case for trial. The record does not include a transcript of the proceedings in which rulings upon the various motions were made, and an abuse of discretion may not be presumed. Meyer v. State Board of Equalization, 42 Cal.2d 376, 387, 267 P.2d 257.

Hall's petition for mandate also is directed toward prohibiting a hearing upon Mrs. Hall's motions for temporary alimony, costs and attorneys' fees. The court is authorized to make those awards '(d)uring the pendency of any action' for divorce. Civ.Code §§ 137.2, 137.3. Section 1049 of the Code of Civil Procedure states that an action is pending 'from the time of its commencement until its final determination upon appeal'.

Sections 137.2 and 137.3 are a restatement of former section 137 of the Civil Code. Lerner v. Superior Court, 38 Cal.2d 676, 242 P.2d 321, considered the authority of the superior court to award counsel fees and costs in connection with the application of the wife for a writ of prohibition pending an appeal from an order of modification of the terms of a final decree of divorce relating to the custody of the children. It was pointed out that 'under section 137 * * * the phrase therein, 'When an action for divorce is pending,' embraced many diverse proceedings growing out of the divorce action and arising after entry of the final decree.' 38 Cal.2d at page 685, 242 P.2d at page 326. After reviewing several decisions involving awards of counsel fees and costs made during the pendency of proceedings to enforce or modify awards of permanent alimony or to construe the provisions of a property settlement agreement, the court concluded that attorneys' fees and costs properly were allowed. 'On principle,' it was said, 'there is no difference between actions in which a woman is compelled by her former husband to resist by an appeal a proceeding brought by him to modify a custody or alimony award and actions in which she is compelled to seek prohibition to prevent improper modification of such awards.' 38 Cal.2d at pages 685-686, 242 P.2d at page 326. The Lerner case and authorities cited support the contention that the trial court in the present action has authority to award to Mrs. Hall the attorneys' fees and costs necessary to enable her to prosecute her demand for permanent alimony. Accord: Dexter v. Dexter, 42 Cal.2d 36, 44, 265 P.2d 873; Wilson v. Wilson, 33 Cal.2d 107, 115, 199 P.2d 671.

Similarly, awards of temporary alimony made after the entry of an interlocutory decree have been upheld. Nelson v. Nelson, 7 Cal.2d 449, 453, 60 P.2d 982 (during the appeal by the husband from an order granting the wife's motion to vacate the final decree); Bernard v. Bernard, 79 Cal.App.2d 353, 358, 179 P.2d 625 (pending a hearing upon the wife's application for permanent alimony made after the interlocutory decree but before a final decree); De Leshe v. De Leshe, 80 Cal.App.2d 517, 518, 181 P.2d 931 (pending appeal...