Solomon v. Solomon

• Decision Date: 27 May 1953
• Citation: 118 Cal.App.2d 149,257 P.2d 760
• Parties: SOLOMON v. SOLOMON. Civ. 15332, 15319, 15428.
• Court: California Court of Appeals Court of Appeals

Page 760

257 P.2d 760

118 Cal.App.2d 149

SOLOMON v. SOLOMON.

Civ. 15332, 15319, 15428.

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

May 27, 1953.

Rehearing Denied June 26, 1953.

Hearing Denied July 22, 1953.

Hanry C. Clausen and Richard G. Burns, San Francisco, for appellant.

Mueller & McLeod, San Francisco, Charles N. Douglas, San Francisco, for respondent.

NOURSE, Presiding Justice.

Three appeals are presented in a consolidated record. One is from an order pendente lite of the San Francisco superior court awarding plaintiff $250 alimony, $2,000 counsel fees, and $500 for costs. Another is an appeal from a similar order of the San Mateo superior court awarding plaintiff $75 a month alimony. When the defendant appealed from this second order the San Mateo court ordered her to pay $2,000 as counsel fees and $250 for costs to resist both the appeals. The defendant appealed from that order and this is the third appeal presented here. Plaintiff's cause of action at the beginning of these proceedings was named by him as an action for separate maintenance. During the course of these proceedings the cause was changed, as will hereinafter appear.

To give an overall picture of the litigation we will sketch the facts as stated in appellant's brief, some of which are corroborated and some are not. However there is no issue of fact involved in any one of the appeals and it is not necessary for us to weigh any of the evidence.

The parties formerly lived in China where the defendant wife acquired some property of her own and raised six children. The plaintiff husband had little or nothing. The defendant then came into possession of considerable funds from her mother's estate. The parties all moved from China to this state where the parents made their home in San Mateo county and the wife, with the funds brought from China, acquired some real estate in her own name. Four years before this action was commenced the plaintiff left his wife and home and made his residence in San Francisco.

On the hearing in the San Francisco court for the pendente order the defendant sought to make proof of these facts: She endeavored to prove the husband's desertion in support of her contention that he had no cause of action for separate maintenance out of the wife's separate property because of section 176 of the Civil Code. She also endeavored to prove the financial condition of both parties, and that all the property standing in her name was her separate property. She was denied that right in every instance. The court then stated that it did not have the time nor the inclination to go into the question of the property rights, that it would 'assume that counsel fees would have to be awarded the petitioner', that, if the parties could not agree, 'then the court will make an arbitrary order' as requested by plaintiff.

Respondent seeks to defend the order by the statement that counsel had in his possession an affidavit and a deposition, neither of which were offered in evidence, read to the court, or considered in making the order. The early case of Pardy v. Montgomery, 77 Cal. 326, 19 P. 530, is authority for the rule that affidavits not shown to have been used on the hearing in the trial court can not be used on appeal to support the order. Furthermore, the record discloses that the trial court would not permit plaintiff's counsel to read the affidavit or the deposition, and this emphasizes the soundness of the rule of the Pardy case.

In Sweeley v. Sweeley, 28 Cal.2d 389, 390, 170 P.2d 469, 470, which involved an order for temporary alimony and counsel fees, the court said that to support an award 'there must be a prima facie showing of three things: The existence of the marriage, the needs of the wife, and the ability of the husband to pay.' Because of the failure to prove the two last mentioned factors the court held that the award of counsel fees and support was an abuse of discretion. The rule of that case is controlling here since the defendant was denied the right to show either the needs of the plaintiff or the ability of the defendant to pay.

We conclude that the order of the San Francisco court was an abuse of discretion--made without any evidence to support it and upon the persistent denial of defendant's right to contest the motion or to offer any evidence in opposition. None of the essential factors in a case of this kind was shown and the order was contrary to the basic principles announced and approved in Sweeley v. Sweeley, supra.

The order in appeal No. 15332 is reversed with directions to the San Francisco court to dismiss the application since it has no further jurisdiction to entertain the proceedings.

The second appeal.

After the cause was transferred to San Mateo County a judge of the superior court therein, on motion of the plaintiff, awarded him $75 a month alimony pendente lite.

The motion was based on an amended complaint filed October 29, 1951. Unlike the original complaint this one alleged that all the property, valued at $500,000, was acquired by plaintiff and belonged to him exclusively. Because of this amendment the interpretation of sections 176 and 137 of the Civil Code is no longer necessary. The former relates solely to applications for maintenance by the husband seeking to charge the separate property of the wife. If she has no separate property (as alleged in the amended complaint) the application is to be heard under section 137. It then states facts purporting to plead a simple case in equity to quiet title to this property, for delivery of possession to plaintiff and for declaratory relief. A demurrer to this complaint was sustained on the same day the order for support was made. This latter order was based on the allegation that plaintiff was without income, but on the hearing of that motion the defendant tendered proof that plaintiff had deserted the defendant approximately four years prior to the commencement of the action; that all the property held in the name and in the possession of the defendant was her separate property; that on January 6, 1947, the plaintiff herein executed his will, paragraph III of which reads as follows: 'I hereby declare that all real and personal property, both in the State of California and elsewhere, standing of record in the name of my beloved wife, Rachel Solomon, together with the furniture and furnishings in San Carlos, is the separate property of my said beloved wife.' It is conceded that all the property in litigation was acquired by the wife long before the date of this will. At the time of the hearing of the second application the only evidence of ownership showed that the San Carlos property was the separate property of the wife. It would serve no purpose to detail the evidence covering any of these statements. Respondent does not controvert any one of them.

After the change of venue, plaintiff on October 29, 1951, filed an amended complaint in which he alleged that he has property worth $500,000 with a monthly income of $3,000, which is in the hands of defendant. The prayer is not for any certain amount of maintenance but that the court 'grant a decree of separate maintenance' and further asks determination of right in the property and an accounting. This complaint seems predicated on the idea that there can be a 'decree of separate maintenance' independent of any need for support, in the manner of a decree for separation from bed and board. However such a limited divorce is unknown in California, O'Connor v. O'Connor, 91 Cal.App.2d 147, 149, 204 P.2d 916; Monroe v. Superior Court, 28 Cal.2d 427, 431, 170 P.2d 473; 35 Cal.L.Rev. 153, and although there is some resemblance between separate maintenance and separation from bed and board, no cases have been found indicating that an action for separate maintenance without any need of support is permitted in California.

However the fact that the action at least in that respect might be demurrable and that a demurrer to this complaint was sustained does not necessarily prevent the granting of temporary alimony. On December 27 a minute order at the same time sustained the demurrer to the amended complaint and granted $75 a month temporary alimony after a hearing on December 14. McClurg v. McClurg, 212 Cal. 15, 297 P. 27, upholds the granting of pendente lite orders notwithstanding sustaining of demurrer to the complaint, so long as the complaint can be amended.

At the hearing the evidence related to need and ability to pay, but the questions as to ownership of the real property and of desertion were mainly eliminated. An objection was sustained to the question whether the wife had inherited the money with which she bought the property and the husband was prevented from going into the reason for his leaving his home.

At the hearing in the superior court there was no mention of the question whether plaintiff's action was brought in good faith notwithstanding his allegation that he owned all the property and the pendency of the demurrer. This question the appellant now raises on appeal and asks us to rule on it. At the close of the argument on appeal an order was made permitting the parties to file supplemental briefs on this point and such briefs were filed. The appellant cited in support of the argument Heller v. Heller, 88 Cal.App.2d 603, 606, 199 P.2d 44 and Bancroft v. Bancroft, 9 Cal.App.2d 464, 471, 50 P.2d 465, both of which relate to the power of the trial court to make such determination. Appellant based her argument on the chronology of the changes in plaintiff's pleadings of his causes of action: first, an action for maintenance; then an amended complaint alleging sole ownership of the property and asking equitable relief; then a second amended complaint omitting all prayer for maintenance and pleading a straight cause for equitable relief as to the property. Appellant asks us to review these pleadings to the end that we should hold that the original...