Lang v. Superior Court

• Decision Date: 19 December 1975
• Citation: 126 Cal.Rptr. 122,53 Cal.App.3d 852
• Court: California Court of Appeals Court of Appeals
• Parties: Robert James LANG, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Carole Agnes LANG, Real Party in Interest. Civ. 47110.

Page 122

126 Cal.Rptr. 122

53 Cal.App.3d 852

Robert James LANG, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Carole Agnes LANG, Real Party in Interest.

Civ. 47110.

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

Dec. 19, 1975.

Sidney L. Radus, Santa Ana, for petitioner.

Donald S. Park, Norwalk, for real party in interest.

BEACH, Associate Justice.

This writ proceeding presents the question whether petitioner's obligation to pay spousal support to his former wife must be terminated pursuant to newly enacted section 4801.5 of the Civil Code. ¹ Petitioner was required by the interlocutory judgment of dissolution to pay $350 per month spousal support to his former wife. On July 18, 1975, a hearing was held by respondent court on petitioner's motion to revoke the support order. At the conclusion of the hearing respondent court denied the motion 'without prejudice.' On or about August 1, 1975, petitioner filed a notice of appeal from the latter order. On September 15, 1975, he filed a petition in this court for a writ of mandate and/or prohibition challenging respondent court's order of July 18. We denied the writ petition without opinion. Thereafter the Supreme Court granted a hearing and retransferred the matter to this court with directions to issue an alternative writ of prohibition. The Supreme Court's order contained no statement of reasons for the issuance of the alternative writ. ² However, recent authority holds that such an order from the Supreme Court must be construed as conclusive of all findings necessary to an alternative writ, which would include the propositions that petitioner's pending appeal is not an adequate remedy and that respondent court's denial of the motion 'without prejudice' does not leave petitioner with a sufficient trial court remedy by renewal of the motion in that court. (Atlantic Richfield Co. v. Superior Court, 51 Cal.App.3d 168, 172, 124 Cal.Rptr. 63.) We therefore turn to the merits of the present matter.

The facts adduced at the July 18, 1975, hearing derived from the testimony of petitioner's former wife, Carole Agnes Lang, who is the real party in interest herein, one Murcel Sanford Mansell, and certain documentary evidence. It does not appear that respondent court disbelieved any of the testimony, but rather concluded that the facts proven by petitioner were insufficient to require the relief sought. Accordingly, we summarize the essential facts on the basis of the entire record of the hearing.

Sometime after the dissolution of her marriage to petitioner Robert Lang, Carole Agnes Lang (hereafter Carole) moved to Blythe, California, where she met Murcel Sanford Mansell. Mansell lived in a trailer in Space 20 of a mobile home park in Blythe. He had been totally disabled since about 1960 and derived his income of $651 per month from Oregon State Disability and Social Security. Carole live in a trailer in Space 15 of the same mobile home park. Sometime in early 1975 Mansell and Carole pooled their money and purchased a new trailer in their true names, as 'co-owners.' They installed the trailer in Space 20; Mansell continued to reside in Space 20 in the new trailer. Also during the early part of 1975 Carole began living in the new trailer in Space 20. Although she did not live in Space 20 continuously through the date of the July 18, 1975, hearing, it is apparent that she did live there for more than thirty days. When living in Space 20 she would rent out her trailer in Space 15. On occasion while she was living in Space 20 Mansell would be in the hospital for treatment of various ailments.

On January 8, 1975, Carole personally appeared at the local office of the telephone company and applied for telephone service for Space 20. Prior to that date neither Space 20 nor Space 15 had telephone service. Mansell had been unable to obtain service in Space 20 because of an unpaid debt to the telephone company. Carole testified that she did not personally fill out the telephone service application form, but that a company employee did so with information supplied by Carole. The completed form listed 'Carole Mansell' as the applicant. The form indicated that the telephone was to be listed in the directory under the name 'Carole Mansell.' In a space denominated 'Name of Spouse,' Carole told the telephone company employee to enter 'Sanford,' which was Mansell's middle name and the name he was often called. In a space labelled 'Employed By/Nature of Bus.' Carole caused the statement 'Disability--husband' to be entered. She testified that by the term 'husband' she was referring to Mansell. After the form was completed Carole signed it as 'Carole C. Lang.' She testified that she used the name Lang because she had previous credit with the telephone company under that name. After receiving the application, the telephone company verified that Carole did have good credit from a previous telephone listed under the name Carole Lang. Carole denied that she had intended to have the telephone listed in the directory under the name Carole Mansell, but she admitted doing nothing to correct that listing thereafter, even though she was aware of it and was receiving the monthly bills under the name Carole Mansell.

In April 1975, Mansell and Carole went to the local branch of Security-Pacific Bank and opened a joint checking account in the names 'Murcel Mansell and Carole Mansell.' Thereafter they each issued checks on that account with the foregoing names appearing on them. When Carole would issue the checks she would sign them as Carole Mansell. Carole explained that she and Mansell opened the joint account with the same last name because she had had difficulty cashing checks on a prior joint account where their names were listed as 'Murcel Mansell and Carole Lang.'

It does not appear from the record that any persons living at the mobile home park who were acquainted with Mansell and Carole believed they were formally married.

At the conclusion of the hearing respondent court denied without prejudice the motion to terminate spousal support, indicating in its minute order that the proof was insufficient. Petitioner contends that respondent court misinterpreted Civil Code section 4801.5 in arriving at its conclusion that the proof was insufficient. Prior case law is not helpful in interpreting this section; indeed, the present case is one of first impression. ³

It appears clear, however, from the terms of section 4801.5 that a spouse seeking to terminate his or her obligation to pay spousal support must prove three facts, as follows: (1) that the spouse receiving the support is living with a person of the opposite sex; (2) that the receiving spouse is holding himself or herself out as the spouse of that person; and (3) that the latter facts existed for at least thirty days, though not necessarily consecutively. If these facts are proven, enforcement of a spousal support order must cease, effective the date upon which the receiving spouse first held himself or herself out as the spouse of the other person.

In the present case there is no question that if Carole lived with Mansell and held herself out as his wife, such facts existed for at least thirty days. However, respondent court indicated petitioner's proof that Carole was 'living with' Mansell was insufficient. The court stated, 'I have no evidence of cohabitation other than the fact that they did buy a trailer and they are living in the trailer. I don't know how many rooms are in the trailer, what their mode of occupancy is, or not. I can just as well assume at this point that she was . . . only there as many men have housekeepers or someone to come in and take care of them.' It appears respondent court interpreted the 'living with' element of section 4801.5 to mean cohabitation in the sense of engaging in commonly understood marital activities. (See Kusior v. Silver, 54 Cal.2d 603, 612, 7 Cal.Rptr. 129, 354 P.2d 657; S.D.W. v. Holden, 275 Cal.App.2d 313, 314--315, 80 Cal.Rptr. 269.) We conclude that section 4801.5 does not require such extensive proof to establish the element of 'living with.' The legislative history of the statute confirms this. The original version of the bill (SB 2392) which became section 4801.5 included the term 'cohabited' rather than 'living with,' and specifically provided that "cohabited' shall not be construed to include a situation in which the parties merely share living accommodations.' If this version of SB 2392 had survived, respondent court's interpretation here would be correct. However, subsequent versions of SB 2392 deleted the latter language of limitation and, indeed, substituted the very broad term 'living with' in place of 'cohabited.' Thus, petitioner established the element of living with upon the undisputed evidence that Carole and Mansell were merely sharing living accommodations. Respondent court's apparent concern that spousal support must be terminated even if Carole had only assumed the status of Mansell's housekeeper or nurse was unfounded, in any event, since section 4801.5 also requires a showing that Carole was holding herself out as Mansell's wife. The latter requirement would preclude application of section 4801.5 to former spouses who receive support and who obtain employment as true housekeepers or nurses.

We arrive now at the final issue of this matter, whether Carole was 'holding herself out' as Mansell's wife. As noted above there are no reported cases dealing with section 4801.5 or its forerunner, the former version of section 4801, subd. (c). Thus, direct precedent is lacking on the meaning of 'holding out' as used in section 4801.5. The legislative history is not helpful. 'Holding out' does not appear in any other California statutes, of which we are aware, in any sense remotely similar to the present case. Section 248 of New York's Domestic Relations Law contains a provision similar to our section...