McLellan v. McLellan

• Decision Date: 28 January 1972
• Citation: 23 Cal.App.3d 343,100 Cal.Rptr. 258
• Court: California Court of Appeals Court of Appeals
• Parties: Bruce Allan McLELLAN, etc., Plaintiff and Respondent, v. Allan C. McLELLAN, Defendant and Appellant. Civ. 35488, 38055.

Page 258

100 Cal.Rptr. 258

23 Cal.App.3d 343

Bruce Allan McLELLAN, etc., Plaintiff and Respondent, v. Allan C. McLELLAN, Defendant and Appellant.

Civ. 35488, 38055.

Court of Appeal, Second District, Division 4, California.

Jan. 28, 1972.

As Modified Feb. 7, 1972.

Louis Romero, Los Angeles, for defendant and appellant.

Hahn & Hahn, and Leonard M. Marangi, Pasadena, for plaintiff and respondent.

DUNN, Associate Justice.

This is a consolidated appeal by the defendant from an interlocutory judgment, a supplemental judgment, on order modifying that judgment, and a post-judgment order, all rendered in a divorce action commenced by Jeanne McLellan. Mrs. McLellan died after entry of the interlocutory judgment granting her a divorce, but before completion of trial and entry of the supplemental judgment. By order of the court her son Bruce McLellan, special administrator of her estate, was substituted as plaintiff.

On October 30, 1967 Jeanne McLellan filed a first amended complaint for divorce from Allan C. McLellan on the grounds of extreme cruelty and adultery. ¹ In the complaint it was alleged: The parties were married on November 29, 1941, and separated July 1, 1967; there were two minor children of the marriage; defendant had treated plaintiff with extreme cruelty, and had committed adultery with one Lydia M. in June 1967; the community property of the parties included the family residence in La Can ada, real property in Palmdale, a 1965 automobile, four life insurance policies, one health and accident and one disability policy, plus other assets presently unknown. Plaintiff sought a judgment granting her an interlocutory divorce, custody of the minor children, alimony, child support and attorneys' fees. She also requested that the court award her all of the community property of the parties.

Defendant filed an answer denying the allegations relating to extreme cruelty and adultery and the enumeration of community property. He also filed a cross-complaint for divorce on the ground of extreme cruelty in which he alleged that the community property of the parties consisted of the automobile, household furnishings and life insurance policies. Plaintiff answered the cross-complaint, denying that she had treated defendant with extreme cruelty and alleging that the community property was as set forth in her complaint, plus other items including defendant's medical practice and its assets.

Trial of the action commenced May 27, 1968, ² Plaintiff called as her first witness Ladia M., the corespondent, who testified that in June 1967 she and the defendant had committed adultery. On May 31st the trial continued in the Glendale Community Hospital for the purpose of taking the testimony of plaintiff who had been hospitalized May 30th. Plaintiff testified she had been 'upset . . . very, very much emotionally' on learning of the conduct of defendant and Lydia M. She also testified concerning various item of property of the parties and living expenses for herself and her minor child. ³

Upon completion of plaintiff's testimony, court and counsel left her room and adjourned to the hospital waiting room where further proceedings were had with defendant and Lydia M. present. Counsel for plaintiff stated that plaintiff rested as to her ground for divorce, reserving the right to offer further evidence relating to the division of property, support and other remaining issues. Plaintiff's attorney then moved that, based upon the testimony of plaintiff and Lydia M., the court make a finding that plaintiff was entitled to a divorce on the two grounds alleged. ⁴ The motion was granted on the ground of extreme cruelty over defendant's objection that he had not been given an opportunity to present evidence on the issues and on those raised under his cross-complaint. (This facet of the case is discussed later herein.)

On June 27, 1968 findings of fact and conclusions of law were signed and filed. The court found defendant had inflicted 'grievous mental suffering' on plaintiff by committing adultery, and concluded she was entitled to a divorce on the ground of extreme cruelty. On June 28th an interlocutory judgment was entered granting plaintiff a divorce on this ground. In the judgment the court expressly reserved jurisdiction to adjudicate the remaining issues, including division of the community property and whether defendant and cross-complainant was entitled to a divorce.

On July 5, 1968 defendant filed a notice of appeal from the interlocutory judgment.

On July 8, 1968 plaintiff died. By order dated July 17, 1968 her son Bruce McLellan, special administrator of her estate, was substituted as plaintiff and cross-defendant.

On July 17th the court also issued a temporary restraining order which enjoined defendant from interfering in any manner with real or personal community property of defendant and decedent in the possession of Bruce McLellan, including the La Can ada residence. On July 19th defendant was personally served with a copy of the restraining order, which was extended on July 29th. On October 28, 1968 Bruce McLellan filed a declaration stating that on October 17th defendant broke into the residence in which McLellan and his family were living and forcibly removed several rifles alleged to be community property of defendant and the decedent. Based upon this declaration the court on October 28th issued an order to show cause why defendant should not be adjudged guilty of comtempt for willfully disobeying the restraining order.

On April 10, 1969 trial resumed. Counsel for defendant contended the court had no jurisdiction to proceed because the death of Mrs. McLellan had abated the cause of action stated in the cross-complaint, thereby precluding defendant from presenting evidence on the issue whether he was entitled to a divorce, and preventing the court from determining whether or not the community property should be equally divided. The court then offered to receive evidence as to defendant's cause of action for divorce 'not by reason of his being entitled to a divorce as such . . . but rather to show what his cause of action might have been so as to have some effect on the disposition of property.' Counsel stated he was 'not prepared to put on any evidence on the cause of action that has been abated.' Thereafter, and continuing on June 25, June 26 and July 3, 1969, the trial proceeded on issues reserved in the interlocutory judgment and on the order to show case re contempt.

On September 15, 1969 findings of fact and conclusions of law were signed and filed covering these issues. The court found: defendant declined to produce evidence regarding his entitlement to a divorce from Mrs. McLellan or her conduct toward him, as alleged in his cross-complaint; by reason of defendant's conduct toward the decedent, plaintiff was entitled to more than half the community property, which included the family residence, the unimproved real property in Palmdale, household furnishings, a gun collection, the automobile, certain shares of stock, life insurance policies and defendant's medical practice; defendant was able to and should pay $175 per month as support for the minor child and $2,500 as fees for plaintiff's attorneys; defendant willfully violated the temporary restraining order. Based on the last finding, the court concluded defendant was in contempt of court but that no sentence should be imposed because no purpose would be served thereby.

On September 17, 1969 a supplemental judgment was entered on the issues which had been reserved in the interlocutory decree. The following community assets were awarded to plaintiff as executor of the estate of the decedent: ⁵ the residence and the furnishings therein, an undivided half interest in the Palmdale property and $5,986.89 representing certain community assets appropriated by defendant. Various items of community property were awarded to defendant, who was ordered to pay child support and fees for plaintiff's attorneys.

On October 7, 1969 plaintiff moved for an order modifying the judgment to include an award of costs. Pursuant to an order made November 4, 1969 the supplemental judgment was modified to include an award of costs to plaintiff as the prevailing party.

On November 10, 1969 defendant appealed from the supplemental judgment and the order modifying the judgment.

On May 12, 1970 plaintiff filed a motion for attorneys' fees and costs on appeal. Following a hearing, on June 12th the court made an order awarding attorneys' fees of $1,000 and costs in the amount of $526.

On July 10, 1970 defendant filed a notice of appeal from that order.

We ordered that the three appeals be consolidated, I.e., (1) the appeal from the interlocutory judgment of divorce, (2) the appeal from the supplemental (final) judgment as modified by the order awarding costs, and (3) the appeal from the order awarding attorneys' fees and costs on appeal. Each of these is an appealable judgment or order. (Code Civ.Proc. § 904.1, subds. (a), (b), (j); Raff v. Raff, 61 Cal.2d 514, 519, 39 Cal.Rptr. 366, 393 P.2d 678 (1964); Fulton v. Fulton, 220 Cal. 726, 728--729, 32 P.2d 634 (1934); Hardin v. Elvitsky, 232 Cal.App.2d 357, 363, 42 Cal.Rptr. 748 (1965); Distefano v. Hall, 218 Cal.App.2d 657, 681, 32 Cal.Rptr. 770 (1963).)

I

Defendant first contends that the trial court exceeded its jurisdiction in granting Mrs. McLellan a divorce without first having permitted defendant to present either his defense thereto or evidence on his cross-complaint for divorce.

The record shows: after completion of Mrs. McLellan's testimony and that of Lydia M., plaintiff rested on the issue of divorce and moved for a finding that she was entitled to a divorce. Defendant objected, stating he was entitled to present evidence before the court made any such finding. The court indicated the only relevant issue at that point was whether Mrs. McLellan was entitled to a divorce and offered defendant the...