Smith v. Smith

• Decision Date: 10 March 1953
• Court: California Supreme Court
• Parties: SMITH v. SMITH. L. A. 22323.

Page 1

254 P.2d 1

40 Cal.2d 461

SMITH v. SMITH.

L. A. 22323.

Supreme Court of California, in Bank.

March 10, 1953.

Jesse Blattel, Beverly Hills, for appellant.

Erb, French & Picone and John L. Stennett, Beverly Hills, for respondent.

TRAYNOR, Justice.

On January 21, 1947, plaintiff secured an interlocutory decree of divorce from defendant by default on the ground of extreme cruelty. The parties had previously executed a property settlement agreement in which plaintiff waived all right to any payments for support and maintenance. She alleged in her complaint that 'the parties have heretofore concluded a property settlement agreement, which plaintiff confirms and asks the Court to approve, save and excepting any provision therein respecting payment of alimony. She is asking that an award of at least token alimony be made at this time.' She prayed 'for a judgment of divorce against the defendant; that the custody of the minor child of the parties be awarded to her; that the property settlement be confirmed, excepting provision for alimony; that she be awarded nominal alimony, and that she have such other and further relief as may be equitable.' The interlocutory decree provided in part that 'the property settlement agreement filed herein is hereby approved and the defendant is ordered and directed to carry out the terms thereof,' and 'It is further ordered that the defendant pay to plaintiff the sum of $1.00 per month for her support commencing February 1, 1947, and continue each month thereafter until further order of Court.' In November, 1951, plaintiff sought to have the support award increased to $100 per month on the ground of changed circumstances. The trial court refused to hear any evidence on the issue of changed circumstances and entered its order refusing modification of the interlocutory decree on the ground that the decree approved the property settlement agreement containing a provision waiving alimony. Plaintiff has appealed.

She contends that the interlocutory decree clearly provided for an award of alimony and that under Civil Code section 139 the trial court has jurisdiction to modify that award. Defendant, on the other hand, contends that the property settlement agreement, having been approved in the interlocutory decree, now stands in the way of any award inconsistent with its terms.

Although the interlocutory decree purports to approve the property settlement agreement in its entirety, it is clear when it is read in the light of the complaint that it did not do so. Plaintiff expressly requested that approval be withheld from the provision waiving support and prayed that nominal alimony be awarded. Such an award was made, and accordingly, the decree may only be interpreted as approving that part of the agreement dividing the property and not as approving the waiver of alimony.

Relying on Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265, defendant contends that the trial court did not have jurisdiction to modify the property settlement agreement by providing for relief inconsistent with its terms. In that case, on an appeal from a decree similar to the one here, we said, 'It is true that public policy requires the protection of the wife and that in a divorce action the court in its discretion may award her necessary alimony. Civ.Code, § 139. Such discretion, however, does not empower the trial court to modify valid agreements of the parties pertaining to the division of their property. The court cannot, as was attempted in the present case, purport to approve the agreement and at the same time order payment of support and maintenance contrary to its terms.' 29 Cal.2d at page 627, 177 P.2d at page 269. Since in that case the plaintiff made no showing that the agreement was inequitable or obtained by improper means, it was held that the agreement was binding on the parties and the court. In the present case, however, defendant did not appeal from the interlocutory decree. That decree is now final, and in this proceeding defendant seeks collaterally to attack the provision awarding alimony. Accordingly, we are not concerned with whether the court erred in granting relief inconsistent with the property settlement agreement but only with whether it had jurisdiction to do so.

When the property rights of the parties are put in issue, the court in a divorce action has jurisdiction to determine them. Huber v. Huber, 27 Cal.2d 784, 793, 167 P.2d 708. Similarly, it has jurisdiction to determine whether a property settlement agreement is equitable and should be enforced, Adams v. Adams, supra, 29 Cal.2d 621, 628, 177 P.2d 265, and to award alimony in a proper case. Civ.Code, § 139. All of these questions were raised by the pleadings in this case, and the relief granted was in accord with the prayer of the complaint. By asking that approval be withheld from the provision of the agreement respecting alimony, plaintiff in effect attacked the validity of that agreement. On the other hand, her request that the remaining provisions be approved was tantamount to a claim that she was entitled in any event to the property the agreement provided she should have. In addition, by praying for nominal alimony, she in effect asked the court to exercise its power to reserve jurisdiction to award substantial alimony in the future if changed circumstances should justify such an award. See McClure v. McClure, 4 Cal.2d 356, 359, 49 P.2d 584, 100 A.L.R. 1257; Puckett v. Puckett, 21 Cal.2d 833, 841, 136 P.2d 1; Wilson v. Superior Court, 31 Cal.2d 458, 464, 189 P.2d 266; Gebhardt v. Gebhardt, 69 Cal.App.2d 723, 727-728, 160 P.2d 177; Soule v. Soule, 4 Cal.App. 97, 101, 87 P. 205.

It may be conceded that she did not allege sufficient facts to show the invalidity of the agreement, or to show that regardless of its terms, she was entitled to the award of the property she received. The failure of a complaint to state a cause of action, however, does not render a default judgment vulnerable to collateral attack. It is sufficient if it apprises the defendant of the nature of the plaintiff's demand. Trans-Pacific Trading Co. v. Patsy F. & R. Co., 189 Cal. 509, 513-514, 209 P. 357; Christerson v. French, 180 Cal. 523, 525, 182 P. 27; In re James' Estate, 99 Cal. 374, 376-377, 33 P. 1122; Svetina v. Burelli, 87 Cal.App.2d 707, 709, 197 P.2d 562; Henderson v. Henderson, 85 Cal.App.2d 476, 479, 193 P.2d 135; see also, Wells Fargo & Co. v. City, etc., of San Francisco, 25 Cal.2d 37, 40, 43, 44, 152 P.2d 625; Estate of Keet, 15 Cal.2d 328, 335, 100 P.2d 1045. Plaintiff's complaint met this test.

Defendant finally contends that the order refusing modification should be affirmed to avoid multiplicity of suits. He argues that any amounts plaintiff might receive if the decree were modified would be in breach of their agreement, and that accordingly, he could recover them back as damages from plaintiff. This argument assumes the validity of the provision of the separation agreement waiving alimony. As pointed out above, however, plaintiff attacked that provision in her complaint, and the court, by granting her the alimony prayed for, determined that it was not binding upon her.

The order is reversed.

GIBSON, C. J., and SHENK, EDMONDS, and SPENCE, JJ., concur.

CARTER, Justice.

I dissent.

I cannot agree that the token alimony provision of $1 per month in this case is in harmony with the provisions of section provides of the Civil Code. That section provides that 'Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, * * * having regard to the circumstances of the parties respectively * * *.' (Emphasis added.) By no stretch of the imagination can it be said that the sum of $1 per month could be sufficient for the maintenance of the minor child here, or for the support of the wife. Alimony is granted for the express purpose of enabling the wife to maintain the children and support herself, § 139, Civ.Code. It is, therefore, in a different category than the $1 nominal consideration found in contracts and deeds to property. The legal effect is also entirely different. The legal effect of an alimony provision in a decree of divorce gives the trial court continuing jurisdiction to modify the sum awarded as the need of the one to whom the alimony was awarded increases or decreases, or the ability of the one paying the alimony changes. It is most apparent here that the sum of $1 per month was not sufficient to support anyone and that there is quite a difference between $1 and the $100 per month which the trial court is being asked now to allow the wife. It occurs to me that if the majority opinion is sound, had the trial court made a provision for one cent a month alimony the wife could later request that the one cent be increased to $1,000 or $10,000 per month depending upon her ability to show that the defendant had, by some means, come into a large sum of money because, under the conditions prevailing here, it would not be necessary for her to show that her condition had changed since it cannot possibly be said...