Marriage of Stuart, In re

• Decision Date: 20 September 1972
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Dorothea A. and Frank F. STUART. Dorothea A. STUART, Respondent, v. Frank F. STUART, Appellant. Civ. 31362.

Page 395

104 Cal.Rptr. 395

27 Cal.App.3d 834

In re the MARRIAGE of Dorothea A. and Frank F. STUART.

Dorothea A. STUART, Respondent, v. Frank F. STUART, Appellant.

Civ. 31362.

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

Sept. 20, 1972.

Frank F. Stuart, in pro. per.

Robert A. Biorn, Crist, Crist, Griffiths & Bryant, Palo Alto, for respondent.

SIMS, Associate Justice.

This matter is before the court on the motion of the wife, the respondent on appeal, to dismiss the husband's appeal insofar as it purports to be from that portion of the interlocutory judgment of dissolution of marriage which declared that the parties are entitled to have their marriage dissolved and ordered that a final judgment of dissolution be entered upon proper application of either party, or on the court's own motion, after the expiration of at least six months from the date (October 21, 1970) the court acquired jurisdiction of the husband, respondent in the court below. She also requests that a remittitur issue directing the trial court to enter a final judgment of dissolution of marriage upon proper application therefor.

For the reasons set forth below it is determined that on the facts and circumstances of this case and the law as presently constituted, the motion should be granted. The appeal from that portion of the interlocutory judgment which provided for dissolution of the marriage will be dismissed and the remittitur will issue as prayed.

On September 29, 1971, an interlocutory judgment of dissolution of marriage containing the provisions referred to above (see Cal.Rules of Court, rule 1287) was made and entered. It also provided, 'The court also makes the orders with respect to child custody, support and division of community property as are set forth in the Supplement to Interlocutory Judgment of Dissolution of Marriage attached thereto, the provisions of which are made a part hereof in their entirety.'

The husband filed a notice of appeal which generally refers to 'the judgment of the above entitled Court entered on September 29, 1971.' Following unsuccessful attempts to prepare an appeal statement, the appeal proceeded on appellant's requests for reporter's and clerk's transcripts.

Appellant has filed an opening brief in which he states: 'There is one principal matter at issue here. It is the custody of the minor child, . . . However, the matter of the 'dissolution of the marriage,' itself, shall be argued and reserved to the extent that it influences custody and the property rights of the parties. Custody and marriage are necessarily interrelated.' The brief is directed to appellant's request that subdivision (a) of section 4600 ¹ of the California Family Law Act be declared unconstitutional. He concludes by noting that the primary issue is custody; and, without argument, he also requests this court to order that attorneys' fees and costs from the inception of the case (awarded to the wife below) be borne jointly and equally by the parties; that the question of spousal support (reserved in the decree below) be resolved by a final determination that the wife is entitled to no such support; and that this court 'make other awards and remedies as it deems fair and just.' Nowhere is there any attack on that portion of the interlocutory decree ordering a dissolution of the marriage.

Movant asserts that the issue of dissolution of marriage (Civ.Code, div. 4, part 5, tit. 3, §§ 4501--4531) is separate and not necessarily interrelated with the issues of custody or support of the children of the marriage (Id. tits. 4 and 5, §§ 4600--4703) or with the issue of property rights of the parties (Id. tit. 6, §§ 4800--4813). With an exception to be reviewed below, it is generally recognized that those issues may be severally adjudicated. 'The concept of divisible divorce is a part of the public policy of this state. (Citation.)' (Lopez v. Lopez (1965) 63 Cal.2d 735, 737, 48 Cal.Rptr. 136, 138, 408 P.2d 744, 746.) In Lopez the court held that it was not necessary to set aside the interlocutory and final decrees of divorce in order to set aside, for extrinsic fraud or mistake, a property settlement agreement which had been incorporated into the decree. In Hull v. Superior Court (1960) 54 Cal.2d 139, 5 Cal.Rptr. 1, 352 P.2d 161, the court issued a writ of mandate for a final decree of divorce over the objection that the moving husband was in default in the performance of a settlement agreement. The court observed, 'The marital relationship is severable from the property rights which it creates, and final settlement of the relationship should not be dependent upon final settlement of corollary property interests.' (54 Cal.2d at p. 147, 5 Cal.Rptr. at p. 6, 352 P.2d at p. 165.)

In another frame of reference, this court in Hansen v. Hansen (1965) 233 Cal.App.2d 575, 43 Cal.Rptr. 729, held that the appealing wife did not waive her right to appeal from certain portions of an interlocutory decree which denied her alimony, and which declared that certain property held in joint tenancy was not community property, by accepting the fruits of another, independent provision of the judgment. (233 Cal.App.2d at pp. 579--582, 43 Cal.Rptr. 729.) Other examples indicate that an appeal may be taken from but a part of the judgment. (See Harrold v. Harrold (1950) 100 Cal.App.2d 601, 604, 224 P.2d 66; Harrold v. Harrold (1953) 43 Cal.2d 77, 79, 271 P.2d 489; Webster v. Webster (1932) 216 Cal. 485, 487, 14 P.2d 522; Newell v. Superior Court (1915) 27 Cal.App. 343, 344, 149 P. 998; Cory v. Cory (1945) 71 Cal.App.2d 309, 310, 162 P.2d 497 (prior appeal from order modifying custody provisions of interlocutory decree); and 6 Witkin, Cal. Procedure (2d ed.1971) Appeal, § 131, p. 4127.) It is also common practice to abandon portions of an unqualified appeal from an interlocutory judgment of divorce which provides for dissolution of the marriage, support of the wife, custody and support of children, and division of the property by failing to urge any error with respect to one or more of those issues. (See Hansen v. Hansen, supra, 233 Cal.App.2d 575, 581, 43 Cal.Rptr. 729; Haldeman v. Haldeman (1962) 202 Cal.App.2d 498, 501, 21 Cal.Rptr. 75; Haldeman v. Superior Court (1962) 206 Cal.App.2d 307, 23 Cal.Rptr. 895; Whitney v. Whitney (1958) 164 Cal.App.2d 577, 580, 330 P.2d 947; and Witkin, op. cit., Appeal, § 425, p. 4391.) Moreover, it may be noted that in many cases a judgment may be only partially reversed and be affirmed in other severable particulars. (See Witkin, op. cit., Appeal, §§ 557--559, pp. 4497--4499; DeVall v. DeVall (1951) 102 Cal.App.2d 53, 54--55, 226 P.2d 605 (partial new trial granted).)

It is concluded that since the appellant husband could have limited his appeal to certain severable issues, leaving the remainder of the judgment in effect, the respondent wife should not be prejudiced by the overbreadth of the former's notice of appeal. If he has abandoned his attack with respect to all but the child custody provisions of the decree, she should be permitted to have his appeal dismissed to that extent, unless, as discussed below, she is precluded in any event from proceeding to finalize the dissolution.

Section 4514, which provides for a final judgment dissolving the marriage, provides in part, '. . . but if any appeal is taken from the interlocutory judgment or A motion for a new trial Is made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. . . .' (Emphasis added.) Except for the emphasized words, which were added effective January 1, 1970 (Stats.1969, ch. 1609, § 16, p. 3356), these provisions are the same is those originally enacted in former section 132 of the Civil Code in 1903. (Stats.1903, ch. 67, § 1, p. 76.) The policy behind the adoption of the provisions contained in sections 131 and 132 of the Civil Code was analyzed in Harrold v. Harrold, supra, as follows: 'The entry of an interlocutory decree prior to the entry of a final decree of divorce was first provided for in 1903, Stats.1903, pp. 75, 76 by adding sections 131 and 132 to the Civil Code. Two years later, in Grannis v. Superior Court, 146 Cal. 245, 79 P. 891 . . ., this court at some length assigned reasons for the addition of the new sections. See also Pereira v. Pereira, 156 Cal. 1, 103 P. 488 . . .; Deyoe v. Superior Court, 140 Cal. 476, 74 P. 28 . . .. It appears from those early cases that the purpose of the 1903 legislation was based upon a policy of the state which does not favor a hasty dissolution of the bonds of matrimony, not from the standpoint of property considerations affected by the marriage, but from the standpoint of past and future personal relationships.' (43 Cal.2d at p. 84, 271 P.2d at p. 493.)

The interpretation to be given the provision quoted above was first considered by the courts in Newell v. Superior Court, supra, 27 Cal.App. 343, 149 P. 998, wherein the defendant husband, who had appealed from that portion of the interlocutory decree which provided for the maintenance and support of the plaintiff wife who had been found entitled to a divorce, sought a writ of mandate to compel the entry of a final decree more than two years after the entry of the interlocutory decree. In denying the writ the court stated, 'It has been determined that in a divorce action under the provisions of our Code the function of an interlocutory decree includes not only the establishment of the right of a party to a divorce, but includes also the hearing and final determination of the rights of the parties as to property. Any disposition of property rights made in connection with the hearing of the principal cause of action is regularly included in and becomes a part of the interlocutory decree. If no appeal be taken, such decree becomes final with respect to those property rights, as well as with respect to the adjudged right to a...