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to be used on an appeal therefrom, does not do away with the necessity to give the formal notice of the entry of the interlocutory judgment or decree, required to be given by section 941b of the Code of Civil Procedure in order to set in motion the limitation of sixty days after such notice within which the appeal may be taken.—McDonald v. McDonald, 168 Cal. 433, 143 Pac. 726.
11. In the absence of the giving of a formal notice of the entry of an interlocutory judgment or decree for a divorce, the supreme court has jurisdiction of an appeal therefrom, taken by the "new method of appeal," within six months after the actual entry of the judgment or decree.—McDonald v. McDonald, 168 Cal. 433, 143 Pac. 726.
12. -Vacating.–The superior court is without jurisdiction to vacate a valid interlocutory judgment for divorce upon
the mere request of the party in whose favor the judgment was given, where such action is taken without notice to or consent of the defendant who suffered default.-Suttman v. Superior Court, 53 Cal. Dec. 84, 162 Pac. 1032.
refer to the form of the findings, and must not be taken as intended to relieve the trial judge in cases where default has been entered in a divorce case from making his decision in writing. This section coming as new legislation the presumption may properly be indulged that the legislature intended to correct what it deemed a foriner deficiency in the law.-Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483.
5. Findings must be made.-In actions for divorce where the adverse party has made default, the court is required to express its decision in the form of findings of fact, in view of the provision of section 131 of the Civil Code to the effect that in actions for divorce the court must file its decision and conclusions of law "as in other cases."Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483.
6. A finding that the evidence does not prove extreme cruelty, and is insufficient to warrant a decree of divorce, is not sufficient as a finding of facts.—Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483.
7. It is not essential to the validity of a divorce decree as against collateral attack that there should be an express finding of fact on the question of the essential residence, or, indeed, express findings of fact on any question.-Flynn v. Flynn, 171 Cal. 746, 154 Pac. 837.
8. Interlocutory decree-Function of.-The office of the interlocutory decree, under section 131, is merely that of "declaring that the party in whose favor the court decides is entitled to a divorce." This stands for a year. In the meantime neither party, alone, may dismiss the action. After the year the final decree may be given granting the divorce, and it is at that time that the court may give "such other and further relief as may be necessary for the complete disposition of the action."-Brown v. Brown, 170 Cal. 1, 147 Pac. 1168.
9. 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 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 divorce. Necessarily the same consequence follows where the court takes into consideration and includes in its interlocutory decree the matter of provision for the support of the wife.—Newell v. Superior Court, 27 Cal. App. 343, 149 Pac. 999.
10. —Notice of entry of-Appeal.—The fact that the defendant against whom an interlocutory judgment or decree of divorce has been rendered files a bill of exceptions
1. Construction.-The provision postponing the entry of final judgment until after the final disposition of any appeal from the interlocutory judgment, was adopted in recognition of the fact that in granting a divorce the court has a variety of duties to perform affecting the property rights of the parties and the future welfare of the parties and their children; and it was deemed advisable that all those matters should be finally adjusted in connection with the granting of a divorce.--Newell v. Superior Court, 27 Cal. App. 343, 149 Pac. 999.
2. This and the preceding section are to be interpreted in the light of previous legislation and decisions and the purposes are to be clearly understood as a limitation on the power of the court in the matter, and are intended to forbid the entry of a final judgment until after one year. Any final judgment purporting to grant a divorce is absolutely void if prematurely entered.-Nolte v. Nolte, 29 Cal. App. 126, 154 Pac. 873.
3. Mandamus to compel entry of final judgment.--Mandamus will not lie to compel the entry of a final decree, although the interlocutory judgment has become final with respect to plaintiff's right to a divorce, where there is an appeal pending affecting the provisions made therein for the support of the plaintiff.--Newell v. Superior Court, 27 Cal. App. 343, 149 Pac. 999.
1. Desertion by wife — Maintenance. Where a divorce is granted to the husband because of the desertion of the wife, and nothing further appears concerning the circumstances, the court has no power to allow permanent alimony to the wife.-Lampson v. Lampson, 171 Cal. 332, 153 Pac. 238.
8 137. EXPENSES OF ACTION FOR DIVORCE. [ALIMONY.] When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action.
[Action for permanent support of wife.] When the husband wilfully deserts the wife or when the husband wilfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety-two of this code, she may, without applying for divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and execution may issue therefor in the discretion of the court. The court, in granting the wife permanent support and maintenance of herself, or of herself and children, in any such action, shall make the same disposition of the community property and of the homestead, if any, as would have been made if the marriage had been dissolved by the decree of a court of competent jurisdiction. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court.
History: Enacted March 21, 1872; amended March 20, 1878, Code Amdts. 1877-8, p. 76; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; March 18, 1905, Stats. and Amdts. 1905, p. 205; March 1, 1907, Stats. and Amdts. 1907, p. 82, Kerr's Stats. and Amdts. 1906-7, p. 400; April 15, 1917, Stats. and Amdts. 1917, p. 35. In effect July 27, 1917.
1. Alimony pending appeal.-Upon an appeal by the wife from an interlocutory decree of divorce granted to the husband, the trial court has discretion to grant alimony pendente lite, and its order will not be disturbed unless a plain abuse of discretion appears.Newlands v. Superior Court, 171 Cal. 741, 154 Pac. 829.
2. In exercising such discretion the trial court has the right to take into consideration the evidence and proceedings upon the trial.-Newlands v. Superior Court, 171 Cal. 741, 154 Pac. 829.
3. Upon such an appeal, the trial court has the right to postpone, the matter of the allowance of an attorney fee for the wife, until after the determination of the appeal.Newlands v. Superior Court, 171 Cal. 741, 154 Pac. 829.
Alimony pending suit-Construction.Permanent alimony in an interlocutory decree on the ground of desertion by the wife is not authorized under this section, which contemplates only payments by the husband pending the action.-Lampson v. Lampson, 171 Cal. 332, 153 Pac. 238.
5. -When question as to alimony may be heard.-In an action by a wife for divorce, she is entitled to have an application made by her for attorney fees, court costs and alimony pendente lite heard and considered in advance of the determination of the question raised by the defendant as to her nonresidence and he lack of jurisdicti
he court.—Dahne v. Superior Court, 31 Cal. App. 664, 161 Pac. 280.
1. Custody and maintenance of childrenConstruction.—After fully describing the status of an adopted child, the court says that it necessarily follows that the jurisdiction of a court in a divorce action between the parents by blood to give such direction for the custody, care, and education "of the children of the marriage" as may seem necessary or proper can not exist as to any such child after its adoption by another.In re Darling, 173 Cal. 221, 159 Pac. 606.
2. The court has discretion in an action by a husband for a divorce on the ground of desertion to give the custody of a child to the mother and require the father to provide for its support.-Lampson v. Lampson, 171 Cal. 332, 153 Pac. 238.
3. Where in a divorce proceeding the custody of a minor child is given to the mother and no provision in the decree is made for the support of such child by the father, the parent entitled to the custody of the child must support it.—People v. Champion, 30 Cal. App. 463, 158 Pac, 501.
4. This section does not state any limitation of its effect to cases in which divorce is denied. If there be such limitation it must be by construction, and inasmuch as the section is designed for the protection of children it should be liberally construed.In re Saul, 31 Cal. App. 382, 160 Pac. 695.
5. The court may make an order affecting the custody of en even though the divorce is denied.-In re Saul, 31 Cal. App. 382, 160 Pac. 695.
1. Support on decree of separation-Construction.—The court is empowered by this section in case of divorce to compel a parent to support his children after being deprived of their custody.-People v. Champion, 30 Cal. App. 463, 158 Pac. 501.
2. Section 139 declares the power of the court, where a divorce is granted for an offense of the husband, to compel him to provide for the maintenance of the children of the marriage. But it appears that under section 138, like power exists in all divorce cases and at all stages of the proceedings.People v. Champion, 30 Cal. App. 463, 158 Pac, 501.
3. -Effect of decree to pay a fixed sum.Where in an action for divorce it is alleged in the complaint that the plaintiff and defendant had entered into an agreement for a division of the community property and that the defendant should pay the plaintiff a fixed sum per month as alimony, a decree ordering the defendant to pay such alimony is not without the issues, nor is the effect thereof to require the defendant to pay the amount of the alimony both under the contract and under the decree.--Newell v. Newell, 28 Cal. App. 784, 154 Pac. 32.
duct can not be regarded as such coercion as will invalidate the agreement.-Murray v. Murray, 28 Cal. App. 533, 153 Pac. 248.
3. How distributed under subdivision 1. -A wide latitude is conferred upon the trial court in its exercise of discretion in assigning the community property to the parties, and in every case it will be presumed that such discretion has been wisely and properly exercised.—Thomsen v. Thomsen, 31 Cal. App. 185, 159 Pac. 1054.
4. It is the duty of the court to award the innocent party more than one-half of the community property when the divorce is for cruelty.-Thomsen v. Thomsen, 31 Cal. App. 185, 159 Pac. 1054.
5. How distributed under subdivision 2 -Construction.—Where the final decree of divorce makes no disposition of the community property, the parties become tenants in common thereof. If the cause of divorce was neither cruelty nor adultery, each will thereafter be the owner of an undivided one-half of the community property without further order of the court, but if given for either of these causes, the respective interests of the parties in the community left undisposed of is subject to the determination of a court of competent jurisdiction in a subsequent action or proceeding.–Brown v. Brown, 170 Cal. 1, 147 Pac. 1168.
DISPOSITION OF COMMUNITY
PROPERTY. 1, 2. As to generally. 3. 4. How distributed under subdivision 1. 5. How distributed under subdivision 2
Construction. 1. As to generally.-Where a hotel which husband and wife are operating together under a lease is community property, the husband has a legal right, upon his wife bringing an action of divorce, to remain in possession until removed by some competent order of court in connection with its disposition of the case on its merits.-Murray v. Murray, 28 Cal. App. 533, 153 Pac. 248.
2. Where a husband and wife are conducting a hotel together under a lease, and she brings an action for divorce, whereupon he refuses to leave the premises unless he is paid a specified sum of money, his con
1. Effect of judgment that there is no community property.—Where a complaint in an action for divorce alleges that there is no community property, and the defendant makes default, the judgment rendered thereupon is a complete adjudication that there was no community property existing at the time the action was begun.-Brown Brown, 170 Cal. 1, 147 Pac. 1168.
2. Such judgment does not, however, prevent the plaintiff from claiming an interest in community property acquired after the beginning of the action and before the final judgment, where no issue is tendered in the action concerning such property.-Brown v. Brown, 170 Cal. 1, 147 Pac. 1168.
HUSBAND AND WIFE.
$ 164. Community property. Conveyance of real estate to and by married women. Time limit
for bringing action. § 172. Power of husband over community property. Personal property. f 172a. Same. Real property (new). $ 158.
vides that upon the completion of the ton
tine dividend period the assured and his 1. Contracts between husband and wife.Where a husband and wife are operating a
assigns should "without the consent of any
other person named as beneficiary" have hotel under lease, and she brings an action
the option to surrender the policy and refor divorce, a contract between them whereby
ceive therefor in cash its entire share of he agrees to leave the premises if she will
assets, the right of the insured to receive pay him a specified amount in instalments
the cash surrender value of the policy in will be regarded as binding in the divorce
the event that he should live more than proceedings.-Murray v. Murray, 28 Cal.
twenty years, is property "standing in his App. 533, 153 Pac. 248.
name" within the meaning of an agreement 2. Where husband and wife, she having
between him and his wife settling their instituted an action for divorce and they
property rights and providing that all prophaving subsequently arrived at an adjust
erty standing in his name should be "treated ment of their differences both as to their
and considered as his separate property.”— properties and their domestic affairs, enter
Simmons v. Miller, 171 Cal. 24, 151 Pac. 545. into an agreement whereby they adjust their property rights and thereafter live together without any change in their matrimonial relations, the contract is valid under section JOINT TENANCY AND TENANCY IN 158 of the Civil Code. Such an agreement
COMMON. is a settlement of property rights, not a 1, 2. Creation of. contract for separation, and the decisions 3, 4. In bank account. on separation agreements are therefore not 5. In personal property. absolute authority. The agreement is not 6. Tenancy in common. invalidated by a provision that the wife
1. Creation of. It is unnecessary to acwill make no claims upon the husband for
company the creation of a joint ownership her support.-Estate of Menihan, 6 Cof. Prob.
with a declaration respecting survivorship; Dec. 535.
that follows as a legal incident to the crea3. The claim of a married woman, under
tion of the joint interest.-Kennedy v. Kensection 158 of the Civil Code, for services
nedy, 169 Cal. 287, Ann, Cas. 1916D 515, 146 rendered in the business of her husband
Pac. 647. pursuant to an agreement with him, stands
2. One of the incidents of a joint tenwould any other claim for such
ancy is, that upon death of one of two joint vices. In re Starr, 232 Fed. 416.
tenants the survivor thereupon becomes the
sole owner of the entirety, not by descent, 8 159.
but by survivorship and in virtue of the 1. Property relations - Court
not original grant creating the tenancy.-Estate change contract concerning.–Where a plain- of Harris, 169 Cal. 725, 147 Pac. 967. tiff had secured an interlocutory decree of
In bank account.-Where a husband divorce on the ground of adultery, and and wife enter into an agreement which in thereafter had filed a supplemental com- effect provides that all the property held plaint describing certain community prop- or acquired by either or both of them durerty and praying for a disposition thereof ing marriage shall be held in joint ownerfor the support of herself and her minor ship as joint tenants, and to carry out such children, the court could not dispose of such agreement the money received from earnproperty in a different manner from the
ings, proceeds of property and all other provisions of a contract between the hus
sources by either of them is deposited in a band and wife settling their property bank from time to time to their joint acrights, where such contract was not pro- count in pursuance of an agreement between cured by coercion, intimidation, or undue them entered in the passbook which recites influence on the part of the husband.-Mur- that the money shall be held in joint tenray v. Murray, 28 Cal. App. 533, 153 Pac. 248. ancy and at the death of either the balance
-Semi-tontine insurance policy.- shall belong to the survivor, property acWhere a twenty-year semi-tontine policy of quired with money drawn rom such account insurance provides that if the insured is likewise joint property, and upon the should die at any time within the existence death of the husband belongs to the wife.of the policy the insurance company would Estate of Harris, 169 Cal. 725, 147 Pac. 967. pay to the wife of the insured the principal 4. A deposit made by a husband and wife sum mentioned in the policy, and also pro- with a savings bank upon the understand
ing and agreement that all moneys at any time deposited by them, or either of them, were and should continue to be their joint property, with right of survivorship, and were, and should continue to be payable to them, or either of them, or to the survivor of them, without reference to the original ownership, and that the act of so depositing the moneys was and should be an absolute termination of the original ownership thereof, constitutes a joint tenancy as to the fund with right of survivorship, and upon the death of either the ownership of the deposit passes to the survivor.–Crowley v. Savings Union Bank & Trust Co., 30 Cal. App. 144, 157 Pac. 516.
In personal property.-A joint tenancy in personal property may be created by an oral agreement whereby title to the property is transferred to two persons as joint tenants.-Estate of Harris, 169 Cal. 725, 147 Pac. 967.
6. Tenancy in common.-A conveyance of real property to a married woman and her husband, presumptively, vests the property in them as tenants in common.-Pabst v. Shearer, 172 Cal. 239, 156 Pac. 446.
munity property.-Dyment v. Nelson, 166 Cal. 38, 134 Pac. 988.
2. The management by the husband of property established not to be community property raises no presumption except that he was holding it in trust for the wife.Dyment v. Nelson, 166 Cal. 38, 134 Pac. 988.
3. Where real estate is conveyed by a man to his wife, it is presumed to become her separate property.-Hitchcock v. Rooney, 171 Cal. 285, 152 Pac. 913.
4. A presumption of gift is raised where a husband purchases property with community funds and thereafter conveys it to his wife.-Alexander v. Bosworth, 26 Cal. App. 589, 147 Pac. 607.
5. Where a husband purchases property with community funds and directs the conveyance to be made to his wife, with the intent to make it her separate property, the deed will operate to vest the property in her as her separate estate.-Alexander v. Bosworth, 26 Cal. App. 589, 147 Pac. 607.
6. Where real property is purchased during marriage and the title thereto taken in the name of the wife, the presumption is that the property is her separate property, and such presumption is not overcome by proof of the mere fact that the purchase price was paid from the joint earnings of the husband and wife.-Holmes v. Holmes, 27 Cal. App. 546, 150 Pac. 793.
1. Separate property of wife.-Money borrowed by the wife upon the credit of her separate property is her own and not com
$ 164. COMMUNITY PROPERTY. CONVEYANCE OF REAL ESTATE TO AND BY MARRIED WOMEN. TIME LIMIT FOR BRINGING ACTION. All other property acquired after marriage by either husband or wife, or both, including real property situated in this state, and personal property wherever situated, acquired while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this state, is community property; but wherever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance is to such married woman and to her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her, as tenant in common, unless a different intention is expressed in the instrument, and the presumption in this section mentioned is conclusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration. And in cases where married women have conveyed, or shall hereafter convey, real property which they acquired prior to May nineteenth, one thousand eight hundred eighty-nine, the husband, or their heirs or assigns, of such married women, shall be barred from commencing or maintaining any action to show that said real property was community property, or to recover said real property, as follows: As to conveyances heretofore made, from and after one year from the date of the taking effect of this act; and as to conveyances hereafter made, from and after one year from the filing for record in the recorder's office of such conveyances, respectively.
History: Enacted March 21, 1872; amended March 19, 1889, Stats. and Amdts. 1889, p. 328; March 3, 1893, Stats, and Amdts. 1893, p. 71; March 4, 1897, Stats, and Amdts. 1897, p. 63; by Code Commission Act March 16, 1901, Stats. and Amdts. 1900-1, p. 193; act held unconstitutional see history, $ 4 ante; amendment approved May 23, 1917, Stats. and Amdts. 1917, p. 827. In effect July 27, 1917.