Roberts v. Roberts

• Decision Date: 24 March 1966
• Citation: 50 Cal.Rptr. 408,241 Cal.App.2d 93
• Court: California Court of Appeals Court of Appeals
• Parties: Faye ROBERTS, Plaintiff and Appellant, v. Ernest ROBERTS, Defendant and Respondent. Civ. 22592.

Page 408

50 Cal.Rptr. 408

241 Cal.App.2d 93

Faye ROBERTS, Plaintiff and Appellant, v. Ernest ROBERTS, Defendant and Respondent.

Civ. 22592.

District Court of Appeal, First District,

Division 1, California.

March 24, 1966.

Mullin & Cost, by Parker S. Kelly, San Mateo, for appellant.

William W. Penaluna, San Mateo, for respondent.

SULLIVAN, Presiding Justice.

This is an appeal by plaintiff Faye Roberts from an order denying her motion to modify an order discharging an order to show cause in a divorce action. It is presented on a record consisting of an agreed statement and a clerk's transcript. (Cal.Rules of Court, rule 6.) ¹

We set forth the following chronology of procedural events leading up to the instant appeal: On December 7, 1955 plaintiff filed in the court below her complaint for separate maintenance and on January 3, 1956 defendant filed his answer thereto and a cross-complaint for divorce. On August 30, 1956, during the pendency of such proceedings, plaintiff and defendant entered into a property settlement agreement. After reciting 'their mutual desire to effect a final and complete settlement of their respective property rights with reference to their marital status and to each other,' this document set forth Inter alia the following provision: 'Husband shall pay to wife for her support and maintenance One Hundred Seventy-five Dollars ($175.00) a month, payable on the 1st day of each month commencing with the 1st day of August 1956 and continuing until wife dies or remarries.'

On October 22, 1956 the case was heard on the uncontested calendar and plaintiff was granted an interlocutory decree of divorce on the grounds of defendant's extreme cruelty. ² Said decree approved and incorporated by reference the above-mentioned property settlement agreement. It also expressly ordered 'pursuant thereto' that defendant pay $175 per month for plaintiff's support and maintenance. No appeal was taken from the interlocutory decree. Final judgment of divorce was filed on October 24, 1957.

On April 13, 1960 defendant obtained issuance of an order to show cause why the interlocutory and final judgments should not be modified by reducing the monthly payments for the support and maintenance of plaintiff from $175 to $75. Plaintiff urged that the modification be denied on the ground that the payments rested upon a private contract not subject to modification by the court. On June 10, 1960 the court discharged the order to show cause, its minute order of that date stating: 'The Order to Show Cause re modification of divorce decree having been heretofore submitted to the Court for consideration and decision, and now the Court, having considered the same and being fully advised, renders the following decision: 'The Court is of the opinion that it does not have the power to modify the decree in view of the provisions of the property settlement agreement. The Order to Show Cause is discharged. Dated June 10, 1960. J. A. Branson, Judge of the Superior Court. " ³ It will be noted that the foregoing order does not expressly direct that a written or formal order be prepared, signed or filed.

Over four years later, counsel for defendant prepared, submitted to plaintiff's counsel for approval and submitted to the court for signature a formal order entitled 'Order Discharging Order to Show Cause.' This order was 'approved as to form' by plaintiff's counsel, signed by Judge Branson on June 8, 1964 and filed in the case on June 10, 1964. It seems clear that defendant's purpose in so doing was to establish a record available for use in defendant's bankruptcy proceedings that the monthly payments to be made to plaintiff were not in the nature of alimony and were therefore obligations properly dischargeable in bankruptcy.

The above-mentioned 1964 formal order, after the usual preliminary recitals, states: 'IT IS FOUND BY THIS COURT AS FOLLOWS: 1. That the property settlement agreement incorporated into the Interlocutory and Final Decrees of Divorce of these parties provided, among other things, for monthly payments of One Hundred Seventy Five Dollars ($175.00) by defendant to plaintiff; that said payments are not in the nature of alimony, but are contractual and a part of the division of property of the parties, and that as a result, this Court does not have the power to modify the described provisions of the property settlement agreement as incorporated in said decrees; IT IS THEREFORE THE ORDER OF THIS COURT: 1. That the provisions of the Interlocutory and Final Decrees of Divorce herein relating to monthly payments of One Hundred Seventy Five Dollars ($175.00) constitute a division of property and not alimony, and are not subject to modification by this Court. 2. That the Order to Show Cause referred to herein is hereby discharged.'

On September 11, 1964, plaintiff, apparently concerned about the discharge of the monthly payments in bankruptcy (see Yarus v. Yarus (1960) 178 Cal.App.2d 190, 195, 3 Cal.Rptr. 50), moved to modify the court's formal order of June 8, 1964 on the ground that it did not accurately reflect the court's decision made on June 10, 1960 and that although it had been approved as to form by plaintiff's counsel 'said approval was given by mistake and inadvertence, without due regard for the legal subtleties and distinctions to be grasped from the words' of the order. It is to be noted that plaintiff did not seek to Vacate the 1964 order but merely to Modify it so as to read in accordance with a New formal order proposed by plaintiff. ⁴ Defendant opposed such modification on the grounds that in discharging the order to show cause in June 1960, the court ruled in plaintiff's favor on the basis of arguments then presented by her that the monthly payments were not in the nature of alimony but were contractual and a part of the division of property; and that plaintiff's counsel approved the 1964 order with full knowledge that the real issue involved was whether the obligation was dischargeable in bankruptcy. On October 2, 1964 Judge Branson denied plaintiff's motion to modify. This appeal followed.

Plaintiff's contentions on appeal may be summarized as follows: (1) that the trial court abused its discretion in not modifying the formal order on the grounds of the mistake and excusable neglect of plaintiff's counsel; (2) that the proceedings had become final prior to the signing and filing of the formal order; and (3) that the formal order of June 8, 1964 is void. We have concluded that the last contention, which is the principal one made before us, has merit and that the order appealed from should be reversed. In view of this conclusion we need not discuss the other points raised on appeal.

The record reflects that plaintiff did not assert the nullity of the order in the court below. Defendant adverts to this but does not challenge plaintiff's right to urge the point on appeal. While it is a settled rule of appellate review that points not raised in the trial court will not be considered on appeal (Damiani v. Albert (1957) 48 Cal.2d 15, 18, 306 P.5d 780; Cope v. Cope (1964) 230 Cal.App.2d 218, 234, 40 Cal.Rptr. 917; Hearst Publishing Co. v. Abounader (1961) 196 Cal.App.2d 49, 58, 16 Cal.Rptr. 244; Buckley v. Savage (1960) 184 Cal.App.2d 18, 32, 7 Cal.Rptr. 328, cert. denied 366 U.S. 910, 81 S.Ct. 1086, 6 L.Ed.2d 235; 3 Cal.Jur.2d 604) and while, as a corollary to the above rule, a party must adhere on appeal to the theory upon which the case was tried below and cannot for the first time on appeal adopt a new and different theory (Ernst v. Searle (1933) 218 Cal. 233, 240--241, 22 P.2d 915; Gibson Properties Co. v. City of Oakland (1938) 12 Cal.2d 291, 298--299, 83 P.2d 942; Panopulos v. Maderis (1956) 47 Cal.2d 337, 340--341, 303 P.2d 738), nevertheless, an exception to the last rule exists and where the newly advanced theory presents, as it does here, only a question of law arising on agreed facts, a change of theory is permitted on appeal. (Tyre v. Aetna Life Ins. Co. (1960) 54 Cal.2d 399, 405, 6 Cal.Rptr. 13, 353 P.2d 725; Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720, 725--726, 344 P.2d 307; Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534; Panopulos v. Maderis, supra, 47 Cal.2d at p. 341, 303 P.2d 738.) We therefore proceed to a consideration of the question whether the formal order ise void.

As the Supreme Court noted in Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851 271 P.2d 18, quoting from In re Dahnke's Estate and Guardianship (1923) 64 Cal.App. 555, 560, 222 P. 381: 'It is well settled that a judgment or other which is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. (Citations.)' (See case there collected. In accord: Wettstein v. Cameto (1964) 61 Cal.2d 838, 40 Cal.Rptr. 705, 395 P.2d 665; Myers v. Washington (1963) 211 Cal.App.2d 767, 771, 27 Cal.Rptr. 778.) This court has had occasion in the past to point out that a void order is never binding and is but 'a dead limb on the judicial tree' which can be lopped off at any time. (Macmillan Petroleum Corp. v. Griffin (1950) 99 Cal.App.2d 523, 533, 222 P.2d 69; Svistunoff v. Svistunoff (1952) 108 Cal.App.2d 638, 641, 239 P.2d 650; Brady v. Superior Court (1962) 200 Cal.App.2d 69, 73, 19 Cal.Rptr. 242; Grant v. Superior Court (1963) 214 Cal.App.2d 15, 19--20, 29 Cal.Rptr. 125.)

A comparison of the pertinent minute order of June 1960 and of the formal order of June 1964 shows: (1) Under the former, the order to show cause was discharged on the basis that the court did not have the power to modify the decree of divorce in view of the provisions of the property settlement; under the latter, the court in addition to 'finding' substantially as above, 'found' that the pertinent monthly payments were not in the nature of alimony but were...