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divorce. This change was made to bring the law into conformity with the legislation adopted at the same session providing for interlocutory decrees of divorce.-Estate of Elliott, 165 Cal. 339, 132 Pac. 439.
2. To the extent that this section made a marriage within a year after the entry of an interlocutory decree void it did some thing more than to fix a penalty. It was an effectual bar to attempt of parties to create the marital status. This status could only be created in the mode prescribed in section 55. The amendment to section 61 did not purport to operate as a curative act. -Estate of Elliott, 165 Cal. 339, 132 Pac. 439.
3. -- Of 1897 — Constitutionality. - The amendment of 1897 is not unconstitutional
as not complying with the requirement that the subject of every act shall be embraced in its title.-Estate of Elliott, 165 Cal. 339, 132 Pac. 439.
4. Construction - To what cases applicable (subd. 2) -A case involving the question whether a second marriage is valid notwithstanding the former husband or wife is alive, and the former marriage has not been dissolved or annulled, the element of good faith and belief of the party that the former spouse is dead is an essential element. This section does not apply if the former spouse is not shown to have been living at the time of the subsequent marriage.-Wilcox v. Wilcox, 171 Cal. 770, 155 Pac. 95.
$ 137. Expenses of action for divorce. [Alimony.]
of mind and health when she consulted 1. Annulment-Marriage valid until an
them.-Perkins v. Perkins, 29 Cal. App. 68,
154 Pac. 483. nolled (subd. 3). — While subdivision 3 of
3. It is prejudicial error in such an action section 82 of the Civil Code, declaring that
to refuse to permit the plaintiff to describe a marriage may be annulled if either party
exactly the acts of the defendant, at the to it was of unsound mind at the time of time he would intrude himself upon her prientering into it, the marriage is binding
vacy, on the ground that the proof would be upon the parties and upon all the world of no value and would be disregarded by the until such annulment is declared.-Wolf v. court.-Perkins v. Perkins, 29 Cal. App. 68, Gall, 32 Cal. App. 286, 163 Pac. 346.
154 Pac. 483. 2. -False representation as to previous chastity.-A marriage is not subject to an
$ 99, nulment, nor is a conveyance of real prop
1. Separation by consent-Not desertion. erty made by the husband to the wife after such marriage subject to cancellation upon
—Where the evidence showed that a husthe ground that the wife falsely represented
band eighty-one years old left his wife withprior to the marriage that she had always out the intent to return because of his been of chaste and moral character.-Wilcox apparent inability to support her, the trial v. Wilcox, 171 Cal. 769, 155 Pac. 95.
court is justified in his decision that there
was no wilful desertion and in the inference § 91.
that the separation was with the consent 1. Limited divorce.—Under our code lim
and acquiescence of the wife. — Lewis V. ited divorces are unknown; all divorces are
Lewis, 167 Cal. 732, 52 L. R. A. (N. S.) 675,
141 Pac. 367. absolute.-Krzepicki v. Krzepicki, 167 Cal. 449, 149 Pac. 13.
$ 101. 8 94.
1. Separation agreement — Revocation. 1. Extreme cruelty-What constitutes. An agreement of separation is not invalid In order to constitute extreme cruelty of the because not understood by the parties at the character of grievous mental suffering, it is time of its execution, in the absence of any not essential that a perceptible effect thereof claim that the signature of either party be produced upon the body or health of the thereto was procured by fraud, duress or complaining party, but it is a question of undue influence.—Silva v. Silva, 32 Cal. App. fact to be deduced from all the circum 115, 162 Pac. 142. stances of each particular case, keeping 2. -Prenature action.-An action for dialways in view the intelligence, apparent
vorce on clie ground of desertion is prerefinement and delicacy of sentiment of the maturely brought where it is made to complaining party.-Perkins v. Perkins, 29 appear that eight days after defendant's act Cal. App. 68, 154 Pac. 483.
of desertion she and the plaintiff executed 2. -Evidence as to.-In such an action a writing whereby they mutually agreed physicians of the plaintiff should be per- to live separate and apart, and that one mitted to testify generally as to the subject year had not elapsed since the time when to which plaintiff ascribed her disturbance the plaintiff revoked the agreement by seek
ing a reconciliation with the defendant.Silva v. Silva, 32 Cal. App. 115, 162 Pac. 142.
1. Curing desertion - Determination by trlal court.-It is for the trial court, having the opportunity to observe the witnesses, to determine from the evidence whether or not the party has brought himself within this section, and the appellate court will not disturb a finding made upon conflicting evidence.-Baker v. Baker, 168 Cal. 346, Ann. Cas. 1916A 854, 143 Pac. 607.
ground for a divorce exists. Its effect is to make it erroneous to grant a divorce in the absence of proof of the facts warranting the action, and this proof must be independent of the admissions and statements of the parties.-Flynn v. Flynn, 171 Cal. 746, 154 Pac. 837.
2. The main purpose of this section was to prevent collusion.—Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483.
3. -Sufficiency of corroboration.—Where the cruelty consists of successive acts of ill treatment there need not be direct testimony of other witnesses to every act sworn to by the plaintiff; it is sufficient corroboration if a considerable number of important and material facts are so testified to by other witnesses, or there is other evidence, circumstantial or direct, which strongly tends to strengthen and confirm the statements of the plaintiff.-Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483.
1. Residence of plaintiff-Construction. Section 128 of the Civil Code, relative to residence of the plaintiff, does not impose any limitation on the jurisdiction of the superior court in the matter of divorces, but simply prescribes certain facts essential to the making out of a case warranting a divorce, and allegations in regard to residence stand on the same footing as any other allegation of facts showing the right to a divorce.--Dahne v. Superior Court, 31 Cal. App. 664, 161 Pac. 280.
2. -Averment as to in complaint. -- It must be taken as settled by the decisions that the residence prescribed by section 128 of the Civil Code is essential to the jurisdiction of a court to grant a divorce, and also that the complaint must allege such residence; and it is for the trial court to determine whether such essential residence exists, but in making such determination, it is controlled by section 130 of the Civil Code, and can not act upon the uncorroborated statement, admission or testimony of the parties.-Flynn V. Flynn, 171 Cal. 746, 154 Pac. 837.
3. An allegation of residence in a complaint in an action for divorce that "said plaintiff resides in the city and county of San Francisco, state of California; and has resided in said city and county for more than four years next immediately preceding the commencement of this action," measures up to the requirements of the statute, and is not defective for the reason that it is not in so many words alleged that such residence was "bona fide," as the allegation necessarily implies residence in good faith.Flynn v. Flynn, 171 Cal. 746, 154 Pac. 837.
8, 9. Interlocutory decree-Function of. 10, 11. —Notice of entry of-Appeal.
1. Construction-Purpose and effect of statute.—The provision for interlocutory decrees with the subsequent delay of one year before the entry of a final decree was intended to operate as a method of prolonging the action, so as to prevent the divorce from being hastily accomplished, and the interlocutory decree, so far as the termination of the marriage relation is concerned at least, is a mere step in the proceedings.Brown v. Brown, 170 Cal. 1, 147 Pac. 1168.
2. With respect to the rights of a husband and wife, respectively, in the property of the other, an interlocutory decree of divorce, given under the provisions of sections 131 and 132 of the Civil Code, does not sever the marriage relation, but they remain in that relation until the final decree of divorce is pronounced.-Brown v. Brown, 170 Cal. 1, 147 Pac. 1168.
3. The language herein contemplates that a final decree shall not be entered until after expiration of the time in which an appeal may be taken. The entry of an interlocutory decree nunc pro tunc as of an earlier date does not affect the time prescribed within which an appeal may be taken. The entry of a final decree within a week after the actual entry of the interlocutory decree nunc pro tunc as of a date one year previous is void, and may be va. cated on motion of either party or of the court's own motion. —Nolte v. Nolte, 29 Cal. App. 126, 154 Pac. 873.
4. In construing that portion of this section which declares that in divorce actions the decision and conclusions of law shall be filed “as in other cases" these latter words
1. Proof as to residence necessary.-A court is not justified in an action for divorce in relying upon the admission of the pleadings and of the parties on the trial as to the jurisdictional question of residence, and a decree granted in reliance upon such admissions, and without any express finding as to residence, must be reversed on appeal. -Flynn v. Flynn, 171 Cal. 746, 154 Pac, 837.
1. Default divorces-Object of section.The object of this section is to prevent collusion between the parties where no lawful
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 in tended 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.
to prosecute or Senecessary to enab.in its discretion, reONY.] When
$ 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 epable 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.
4. 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 beard.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 nonresi dence and the lack of jurisdiction of the court.—Dahne v. Superior Court, 31 Cal. App. 664, 161 Pac. 280.
1. Custody and maintenance of children Construction - 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 children even though the divorce is denied.-In re Saul, 31 Cal. App. 382, 160 Pac. 695.
duct can not be regarded as such coercion 1. Support on decree of separation-Con
as will invalidate the agreement.-Murray struction.—The court is empowered by this
v. Murray, 28 Cal. App. 533, 153 Pac. 248. section in case of divorce to compel a parent
3. How distributed under subdivision 1. to support his children after being deprived
- A wide latitude is conferred upon the trial of their custody.--People v. Champion, 30
court in its exercise of discretion in assignCal. App. 463, 158 Pac. 501.
ing the community property to the parties, 2. Section 139 declares the power of the
and in every case it will be presumed that court, where a divorce is granted for an such discretion has been wisely and propoffense of the husband, to compel him to
erly exercised.-Thomsen v. Thomsen, 31 provide for the maintenance of the children
Cal. App. 185, 159 Pac. 1054. of the marriage. But it appears that under
4. It is the duty of the court to award section 138, like power exists in all divorce the innocent party more than one-half of cases and at all stages of the proceedings. the community property when the divorce People v. Champion. 30 Cal. App. 463. 158 is for cruelty.-Thomsen V. Thomsen, 31 Pac, 501.
Cal. App. 185, 159 Pac. 1054. 3. —Effect of decree to pay a fixed sum. 5. How distributed under subdivision 2 Where in an action for divorce it is al -Construction.—Where the final decree of leged in the complaint that the plaintiff and divorce makes no disposition of the comdefendant had entered into an agreement formunity property, the parties become tena division of the community property and ants in common thereof. If the cause of that the defendant should pay the plaintiff divorce was neither cruelty nor adultery, a fixed sum per month as alimony, a decree each will thereafter be the owner of an ordering the defendant to pay such alimony undivided one-half of the community propis not without the issues, nor is the effect erty without further order of the court, but thereof to require the defendant to pay the if given for either of these causes, the reamount of the alimony both under the con spective interests of the parties in the comtract and under the decree.--Newell v. New munity left undisposed of is subject to the ell, 28 Cal. App. 784, 154 Pac. 32.
determination of a court of competent juris
diction in a subsequent action or proceed$ 146.
ing.–Brown v. Brown, 170 Cal. 1, 147 Pac. DISPOSITION OF COMMUNITY
1168. PROPERTY. 1, 2. As to generally.
§ 147. 3. 4. How distributed under subdivision 1. 1. Effect of judgment that there is no 5. How distributed under subdivision 2 community property.--Where a complaint in Construction.
an action for divorce alleges that there is 1. As to generally.-Where a hotel which no community property, and the defendant husband and wife are operating together
makes default, the judgment rendered thereunder a lease is community property. the upon is a complete adjudication that there husband has a legal right, upon his wife was no community property existing at the bringing an action of divorce, to remain in time the action was begun.-Brown v. possession until removed by some competent Brown, 170 Cal. 1, 147 Pac. 1168. order of court in connection with its dispo 2. Such judgment does not, however, presition of the case on its merits.-Murray v. vent the plaintiff from claiming an interest Murray, 28 Cal. App. 533, 153 Pac. 248. in community property acquired after the
2. Where a husband and wife are con beginning of the action and before the final ducting a hotel together under a lease, and judgment, where no issue is tendered in the she brings an action for divorce, whereupon action concerning such property.-Brown v. he refuses to leave the premises unless he Brown, 170 Cal. 1, 147 Pac. 1168. is paid a specified sum of money, his con