Hixson v. Hixson

• Decision Date: 21 November 1956
• Citation: 303 P.2d 607,146 Cal.App.2d 204
• Court: California Court of Appeals Court of Appeals
• Parties: Grace Defenderfer Ryan HIXSON, Plaintiff and Appellant, v. William Carter HIXSON, Defendant and Respondent. Civ. 21975.

Page 607

303 P.2d 607

146 Cal.App.2d 204

Grace Defenderfer Ryan HIXSON, Plaintiff and Appellant, v. William Carter HIXSON, Defendant and Respondent.

Civ. 21975.

District Court of Appeal, Second District, Division 2, California.

Nov. 21, 1956.

Gold & Needleman, Beverly Hills, for appellant.

Morris Lavine and Wm. J. Clark, Los Angeles, for respondent.

ASHBURN, Justice.

Motion to dismiss appeal from order refusing to amend final decree of divorce to conform to oral agreement of parties that such amendment be made. Trial judge found that the agreement was made in fact but that he had no jurisdiction to make the requested amendment, the decree having become final.

The parties were in litigation with the government over their income taxes at the time of the divorce. Both the interlocutory decree and the final provided that certain property should go to the wife subject to the government's lien; that each party should be responsible for one-half the debt to the government up to $10,000; in the event it exceeded that amount the wife should pay the next $3,000 and the parties were to share equally any excess over $13,000; the husband to pay all penalties imposed on either or both parties. After the time for appeal from the final decree had expired it was orally agreed between the parties that each of them should negotiate and settle separately with the government and that the above mentioned portion of the divorce decree should be eliminated therefrom by stipulation. Each of them did effect a settlement of the tax claim, but the husband refused to go through with his agreement to amend the judgment, claiming through substituted counsel that he had never agreed to that. The appeal is from the order denying plaintiff's motion to amend the judgment.

Defendant's motion is made upon the ground that the order is not appealable. The test of appealability of an order not mentioned in § 963, Code of Civil Procedure, is stated in the cited case of Sjoberg v. Hastorf, 33 Cal.2d 116, 119, 199 P.2d 668, 670, as follows: 'It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him.' But a special order after final judgment is mentioned in § 963 and the test of appealability seems to be somewhat different. Lake v. Harris, 198 Cal. 85, 89, 243 P. 417, 419: 'In order that a special order, made after final judgment, as contemplated by subdivision 2 of section 963 of the Code of Civil Procedure, be appealable, such order must affect the judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution, Griess v. State Investment, etc., Co., 93 Cal. 411, 28 P. 1041; Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; Watson v. Pryor, 49 Cal.App. 554, 193 P. 797; 2 Cal.Jur. 153.' The quoted language was used with respect to an appeal from an order striking the judge's certificate from a clerk's transcript on appeal. The court further said that the making of that order 'neither added to nor subtracted from the relief granted by the judgment.' 198 Cal. at page 89, 243 P. at page 419. The stated test has been applied repeatedly.

Lande v. Southern Cal. Freight Lines, 78 Cal.App.2d 417, 177 P.2d 936, dealt with an appeal from an order directing engrossment of a settled statement by incorporating certain amendments therein. The court dismissed the appeal, saying, 78 Cal.App.2d at page 419, 177 P.2d at page 937: 'But the orders after judgment which are appealable under this section are only those which affect the final judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution. Lake v. Harris, 198 Cal....