Opinion
Page __
__ Cal.App.2d __ 278 P.2d 124 Peirson M. HALL, Petitioner, v. SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent. Gertrude M. Hall, Real Party in Interest and Respondent. Civ. 20681. California Court of Appeals, Second District, Second Division Dec. 21, 1954Rehearing Denied Jan. 10, 1955.
Hearing Granted Feb. 16, 1955.
Irving M. Walker, James C. Sheppard and Sheppard, Mullin, Richter & Balthis, Los Angeles For petitioner.
Harold W. Kennedy, County Counsel and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.
William J. Currer, Jr., Los Angeles, for Gertrude M. Hall.
McCOMB, Justice.
This is an application for a writ of mandate to (a) require respondent to determine the amount of permanent support and maintenance that plaintiff in the case of Hall v. Hall, 42 Cal.2d 435, 267 P.2d 249, is entitled to and (b) restrain respondent from proceeding [278 P.2d 125] to hear an order to show cause for temporary alimony and attorneys' fees.
The essential and undisputed facts are:
(1) Plaintiff in the above entitled action was awarded an interlocutory decree of divorce which ordered defendant to pay (a) alimony, and (b) attorneys' fees. There was also an order for costs of printing a brief on appeal and $200 attorneys' fees in connection therewith.
(2) Defendant appealed from the portions of the decree awarding (a) alimony and (b) attorneys' fees, and (c) from the order for costs of printing the briefs on appeal and the allowance of the attorneys' fee of $200.
(3) On March 4, 1954, the Supreme Court affirmed the portion of the interlocutory decree appealed from referred to under subdivision (b) and the order mentioned under (c), supra, and reversed the portion under subdivision (a), saying in part: 'Insofar as the judgment awards Mrs. Hall $350 per month for support and maintenance, it is reversed; in all other respects it is affirmed.' (Hall v. Hall, 42 Cal.2d 435, 442, 267 P.2d 249.)
(4) The remittitur was issued April 7, 1954.
(5) On August 31, 1954, plaintiff Gertrude Hall obtained in order to show cause from respondent court directed to petitioner to show cause why he should not be required to pay plaintiff 'reasonable sums for her support during the pendency of this action,' which was accompanied by a notice of motion for attorneys' fees, costs and expenses.
(6) On September 7, 1954, defendant gave written notice that he would make a motion on the 15th day of September 1954, for the court to fix the amount of permanent alimony and support money due plaintiff. This notice of motion together with plaintiff's order to show cause were regularly continued until September 27, 1954. At the time of the hearing the trial court denied defendant's motion and proceeded to hear plaintiff's order to show cause and motion.
Respondent contends that the trial court's ruling was correct for the reason that petitioner (defendant in the divorce action) failed to comply with rule 6(a), Rules for Superior Courts (33 Cal.2d 4), which reads as follows: '(a) [Necessity and service of memorandum] No civil case shall be set for trial until it is at issue and unless a party thereto has served and filed a memorandum as provided herein; provided, however, if a case is set on stipulation, the memorandum need not be served but shall be filed with the stipulation.'
It is conceded that the procedure outlined in said rule was not followed by petitioner but in lieu thereof that he has attempted to secure a determination of the issue of the amount of permanent alimony to be awarded to plaintiff in the divorce action by way of making a motion for the court to fix the amount.
Respondent's contention is devoid of merit. First, it is doubtful whether rule 6(a), supra, is applicable to the facts in the instant case because such rule provides that 'no civil case shall be set for trial until it is at issue and unless a party thereto has served and filed a memorandum as provided herein; * * *.' (Italics added.) In the present matter there was nothing to be tried. The evidence had all been received and the Supreme Court's decision left nothing to be done by the trial court except to fix the amount of the permanent alimony. In other words, there was no issue of fact left to be tried nor evidence to be received. Both of these things had been done and all that remained was for the trial court to reconsider the record of the original trial, to draw conclusions as to the amount of support money to be paid upon the evidence previously received in accordance with the instructions of the Supreme Court, and to enter that amount in the interlocutory decree.
Second, if we assume that the wording of Rule 6(a), supra, is technically applicable to the present case, we are confronted with the established maxim of law 'When the reason of a rule ceases, so should the rule itself.' (Civil Code, section [278 P.2d 126] 3510; see In re Estate of Hite, 155 Cal. 436, 446, 101 P. 443, 21 L.R.A.,N.S., 953; Webber v. Webber, 33 Cal.2d 153, 164, 199 P.2d 934; Flores v. Brown, 39 Cal.2d 622, 632, 248 P.2d 922; Laske v. Lampasona, 89 Cal.App.2d 284, 288 et seq., 200 P.2d 871; People v. Statley, 91 Cal.App.2d Supp. 943, 947, 206 P.2d 76.)
This brings us to a consideration of the reasons for the procedure outlined in Rule 6(a), supra. First, it is to give the opposing party the opportunity if entitled to a jury trial to demand it; second, it is to give the opposing party time to prepare for a trial of the issues which are presented for determination. In the instant case neither party was entitled to a jury trial, so the first reason for the rule is not present. Likewise, the evidence has been taken as to the amount of alimony needed by the plaintiff and the ability of the defendant (petitioner herein) to pay it. These are the only issues left in the case. The Supreme Court in its decision held specifically that the award had been too high, pointing out the reasons therefor, and sent the case back for the trial court to fix a proper amount. It is evident that there was no issue of fact to be tried inasmuch as the evidence had already been taken. All that was necessary was for the trial court to fix the amount in accordance with the rules announced by the Supreme Court, predicated upon the evidence already received and in the record. Hence, the second reason for Rule 6(a), supra, is not present in the instant matter. No other reasons exist for Rule 6(a).
It is obvious that plaintiff, Gertrude Hall, is not in any way biased or prejudiced or deprived of any right by the procedure proposed by petitioner. On the contrary, viewing it from her standpoint, it was to her advantage to have the amount of her permanent support and maintenance fixed promptly. This could be done at a relatively early date by following the procedure adopted by petitioner, while if the procedure outlined in Rule 6(a), supra, were to be followed it would be approximately a year before the matter would be settled. Therefore it follows that the only reason for insisting upon a technical compliance with Rule 6(a) would be for the purpose of harassing petitioner and in order that additional costs and attorneys' fees could be incurred by plaintiff, Gertrude Hall, and her attorney. The courts are not to be used for the purpose of harassing parties to litigation or adding to the cost of obtaining a final adjudication of the rights of the parties.
As pointed out in the forward looking case of De Burgh v. De Burgh, 39 Cal.2d 858, 863, 250 P.2d 598, the public has an interest in the institution of marriage. It is obvious that the public's interest as well as that of the parties is best subserved by a prompt and final determination of marital controversies, the fixing of the marital status of the parties, their property rights and the amount of any permanent alimony or support money that may be awarded.
Delay leads only to uncertainty, financial embarrassment of the parties, economic and social injustice involving not only the immediate parties but their children, relatives and friends.
It is a matter of common knowledge among the legal profession that at times the delay in bringing to a final determination unfortunate situations similar to those existing in this case have verged on a public scandal and have tended to bring the administration of justice into disrepute. We therefore hold that the procedure adopted by petitioner for the determination of the amount of permanent alimony and support was proper and that a writ of mandate should issue accordingly.
Finally, the law neither does not requires idle acts. (Civil Code, section 3532.) In Robinson v. Puls, 28 Cal.2d 664, 667[3], 171 P.2d 430, 432, Chief Justice Gibson says: 'The law does not require the performance of an idle act. Civ.Code, § 3532.' In Wade v. Markwell & Co., 118 Cal.App.2d 410, 430, 258 P.2d 497, 508, Mr. Justice Fox says: 'These statements which, however, were not true, explain plaintiff's failure to send her son to pick up her coat and excused her of the necessity [278 P.2d 127] of making a tender of an amount sufficient to cover the loan, interest and charges because the law does not require the doing of an idle act. Civ.Code, secs. 3532 and 1511, subd. 3.' (See also Enfield v. Huffman Motor Co., 117 Cal.App.2d 800, 807 [4], 257 P.2d 458.)
Applying the foregoing rules to the facts of the present case, it is obvious that since the trial court should fix the amount of permanent support it would be an idle act for it to try the order to show cause for temporary alimony and attorneys' fees. Therefore, the writ of prohibition which is sought should be granted.
Let the writs issue as prayed.
MOORE, Presiding Justice.
I concur with Justice McComb. Plaintiff brought her suit and on order to show cause, while her action for divorce was pending, asked that an allowance be awarded as alimony for her support until divorced. An order was made accordingly. That order adjudicated the question of alimony until the adjudication of the demand for divorce. Civ.Code, secs. 137.2, 137.3. She was promptly adjudged to be entitled to a divorce and the Supreme Court affirmed the judgment. Further to accord plaintiff all her demands, the court fixed the amount of her permanent support money at $350 per month. The high court gave its approval to all parts of the divorce decree except the 'amount' of permanent support money. That she was entitled to permanent support was therefore finally adjudicated. The 'amount' was the only fact yet to be found from the very record made on which the judgment was based. It is thus seen that the processes of the superior court have been exhausted in making awards to plaintiff.
After she was granted a decree, her right to alimony, i. e., support pendente lite, no longer existed. She had used it up. While the judgment was 'interlocutory' no other judicial act of the court was necessary to make it final. There was no other issuable fact. The clerk could enter the 'final' after a year had elapsed. The matter of support went into the interlocutory decree thereby supplanting the order for 'alimony.' Now, because that part of the decree fixing 'permanent support' at $350 per month as reversed, the award of permanent support was not disturbed. The needs of plaintiff and the ability of defendant to pay were proved at the trial and the conclusion that 'permanent support' should be paid to plaintiff remains undisturbed.
Respondent Court is in error in holding that permanent support remains to be litigated. There is no fact in controversy; no proof to be adduced; only the agitation of the judicial intellect and the announcement of the result, to wit, the 'amount' of money to be paid monthly to plaintiff as permanent support. She is not then in the same position with reference to her decree as she would be, if the Supreme Court had reversed it for lack of proof on the subject of support or had erroneously rejected lawful evidence. That would have put the case back for a retrial of the issue on legitimate evidence.
Now, if we concede that the order for alimony was not merged in the decree for permanent support, then the first order is alive again and is res judicata of the very matter plaintiff seeks now to establish, to wit, a right to alimony pendente lite. But she is then confronted with the proposition that there is no lis pendens,--no unsettled controversy with reference to temporary alimony.
As to petitioner's demand that his motion to have the 'amount' of permanent support fixed by respondent court, that motion should be tried at once. While delay has been unnecessarily caused such delay is not due to the willingness of the court to act. But whatever be the cause justice will not be promoted by further delay. After a heated controversy and final action by the Supreme Court it is the more commendable practice to bring a case at such status to a final termination. No good reason appears why the determination of the 'amount' of petitioner's monetary obligation to his former spouse should not be promptly fixed and the judgment modified accordingly. The repetition of motions and [278 P.2d 128] appearances and continuances and arguments and demands will soon take a simple divorce action into the class of Jarndyce and Jarndyce. The court below should promptly determine the single fact resubmitted to it for reconsideration.
The long-delayed proceeding in Bleak House by Charles Dickens.
FOX, Justice (dissents).
In her divorce action plaintiff was awarded an interlocutory decree, alimony and counsel fees. Defendant 'appealed from that part' of the interlocutory decree 'which ordered him to pay alimony and the fees of Mrs. Hall's attorneys.' See Hall v. Hall, 42 Cal.2d 435, 436, 267 P.2d 249, 250. On appeal Judge Hall attacked the award of $350 per month for Mrs. Hall's support and maintenance as being excessive and an abuse of discretion under the circumstances. The Supreme Court agreed with him saying, 'the needs of the respective parties do not justify the amount of alimony here allowed to the wife.' The court thereupon disposed of this portion of the appeal in the following language: 'Insofar as the judgment awards Mrs. Hall $350 per month for support and maintenance, it is reversed; in all other respects it is affirmed.' Hall v. Hall, supra, 42 Cal.2d at page 442, 267 P.2d at page 253. The remittitur was issued on April 7, 1954. It is thus apparent that the amount of support and maintenance to which plaintiff is entitled was one of the important issues in this litigation, and that that question is back in the trial court for its consideration and decision.
On April 8, 1954, a final decree of divorce was entered which, however, has been since vacated and set aside. Thereafter, on August 31, 1954, plaintiff obtained an order from respondent court directed to petitioner to show cause why he should not be required to pay plaintiff 'reasonable sums for her support and maintenance during the pendency of this action.' This order was based on an affidavit of plaintiff wherein she stated, inter alia, that she had received nothing from plaintiff for support since April, 1954, and that she is 'destitute and without funds.' These papers were accompanied by a notice of motion for attorney's fees, costs and expenses.
Defendant objected to the hearing of the order to show cause and motion for attorney's fees and costs. He countered with a motion, duly noticed, for an order fixing the amount, if any, to be paid plaintiff for her permanent support and maintenance. The trial court denied defendant's motion and proceeded to hear plaintiff's order to show cause re support pendente lite and her motion for attorney's fees and costs.
Defendant as petitioner here seeks a writ of mandate to compel the respondent court to hear his motion. He also seeks to prohibit the respondent court from proceeding with the hearing on plaintiff's order to show cause and her motion for counsel fees and costs. Petitioner is not entitled to relief in either respect.
The simple answer to petitioner's request that respondent court be ordered to hear his motion, is that such court has already heard and denied it. Thereafter petitioner made a motion to have the court reconsider its ruling and to vacate the same. Respondent court denied petitioner's motion to reconsider. It is thus apparent that respondent court has in effect ruled on petitioner's motion on two separate occasions.
On page 29 of his petition it is stated that 'said respondent court, on September 29, 1954, denied the motion of your petitioner * * *.'
On page 32 of his petition, petitioner states, 'Said Motion to reconsider was denied by the respondent court on October 15, 1954 * * *.'
What petitioner is basically praying for is an order from this court commanding respondent court to establish, through a hearing on the mere motion he has there made, the amount of permanent support and maintenance to which plaintiff is entitled. However, the trial court was justified in refusing to proceed in accordance with the summary procedure adopted by petitioner. The amount of support to [278 P.2d 129] which plaintiff was entitled was an important issue in the earlier trial and was one of the principal questions on the appeal. The form of the reversal of the Supreme Court had the effect of remanding the cause for a new trial on the issue of alimony. Central Sav. Bank of Oakland v. Lake, 201 Cal. 438, 443, 257 P. 521; Erlin v. National Union Fire Ins. Co., 7 Cal.2d 547, 549, 61 P.2d 756; Atchison, T. & S. F. Ry. Co. v. Superior Court, 12 Cal.2d 549, 554, 86 P.2d 85. The appropriate procedure after the case was remanded was plain and simple. Since the case cannot be disposed of until this remaining issue is determined, a date should have been fixed for such trial by proceeding under Rule 6, Judicial Council Rules for Superior Courts, and filing and serving a memorandum for setting. See Central Sav. Bank of Oakland v. Lake, supra, 201 Cal. 442, 257 P. 521. This procedure was not followed, but in lieu thereof petitioner has attempted to secure a determination of this issue by way of motion. Plaintiff interposed her objections to this summary procedure before the court to which the matter was referred. The court was, therefore, not required to proceed under petitioner's motion and was justified in denying same, since the authorized procedure, which was fully available to petitioner, was being ignored. There is thus no merit in petitioner's contentions (1) that the respondent court is delinquent in its alleged failure to comply with the remittitur of the Supreme Court, and (2) that a mandate should issue to compel the court to proceed in line with his motion. The court has at all times acted within the framework of the rules governing the Superior Court. The writ prayed for would serve only to circumvent those rules.
The anxiety expressed by the majority that resort to the established procedures would engender long delay and constitute an idle act is more fancied than real. This is first manifest by the fact that petitioner himself, for five months, made no effort to have the matter heard. Furthermore, once the matter is set in the prescribed manner, petitioner may move to advance the cause on the trial court calendar. This would achieve both adherence to the prescribed rules of courts and orderly expedition of the cause without sacrificing the right of either party to be properly prepared for the further proceeding on the question of permanent alimony. Obviously, following the duly adopted procedural rules of the trial court is not an idle act, but rather a commendable practice. Clearly, the ruling here was one of procedure, and discretionary in character. 'An abuse of discretion by the trial judge in making procedural rulings will never be presumed, but must appear affirmatively from the record.' Meyer v. State Board of Equalization, 42 Cal.2d 376, 387, 267 P.2d 257, 264. No abuse whatever of the court's legal discretion appears from the facts. Hence petitioner is not entitled to the writ sought.
Petitioner suggests that plaintiff has waived objection to proceeding under his notice of motion by his 'failure to object to it, or the setting of it, and the failure to move to strike it.' This position is untenable. Actually, all that was before the court prior to its assignment to Department 2 was a notice that petitioner would make a motion for an order determining his liability for support and maintenance, and the amount thereof, if any. No such motion was in fact made until the hearing started in Department 2. When such motion was then addressed to the court, plaintiff objected to such proposed procedure. Thus there was no waiver, for plaintiff raised an appropriate objection as soon as the motion was made. She was under no duty to move to strike the notice of motion or to make other formal objection thereto in the absence of statutory procedure therefor. She was at liberty to await the formal presentation of the motion in open court and then make her objection to its being granted. This is precisely what she did.
Petitioner points out that plaintiff took no steps for some four or five months to have this case set for retrial. Such delay does not, however, appear to have prejudiced petitioner's position in any respect. As has been stated, he had the same right and opportunity to have the case set for retrial as did the plaintiff. He is therefore [278 P.2d 130] in no position to complain of her failure to take such steps.
We turn next to the question of the court's jurisdiction to hear Mrs. Hall's application for alimony pendente lite, costs and attorney's fees. By the express terms of the Civil Code the court may, during the pendency of an action for divorce, order the husband to pay any amount necessary to enable the wife to support herself or the children, as well as to pay such amount as may be reasonably necessary for the cost of maintaining or defending the action and for attorney's fees. Civ.Code, secs. 137.2, 137.3. An action is pending 'from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.' Code Civ.Proc., sec. 1049. It was well settled that under former Civil Code section 137, of which sections 137.2 and 137.3 are a recodification, the phrase therein employed, 'when an action for divorce is pending', embraced many diverse proceedings growing out of the divorce action, including even those arising after entry of the final decree. Lerner v. Superior Court, 38 Cal.2d 676, 685, 242 P.2d 321, 326, and cases there cited. It is obvious that, since a retrial of the alimony issue, as an outgrowth of the divorce action, is still required, the action remains pending within the meaning of Civil Code sections 137.2 and 137.3. Cf. Bernard v. Bernard, 79 Cal.App.2d 353, 358, 179 P.2d 625.
It is clear that where a judgment is unqualifiedly reversed and the case remanded for a new trial, the parties are placed in the same position below 'as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed to far as applicable.' Central Sav. Bank of Oakland v. Lake, 201 Cal. 438, 443, 257 P. 521, 523; Odlum v. Duffy, 35 Cal.2d 562, 565, 219 P.2d 785. When only a part of a judgment is appealed from, and the reversal necessitates a new trial of an issue considered on appeal, with respect to that issue the parties likewise are restored to the position that they had before the reversal order was made and with the same rights they originally had. See Odlum v. Duffy, supra; Whalen v. Smith, 163 Cal. 360, 363, 125 P. 904.
At the time she filed her action for divorce, Mrs. Hall was entitled to the statutory allowances authorized by Civil Code sections 137.2 and 137.3 upon a proper showing therefor. It is true, of course, that ordinarily an award of alimony pendente lite is terminated by the entry of the interlocutory decree unless the question of permanent alimony is reserved for later consideration by the court. Wilson v. Superior Court, 31 Cal.2d 458, 462-463, 189 P.2d 266. When, however, an appeal is taken from that portion of the decree awarding alimony, and the appellate tribunal reverses for a redetermination of that issue, a new situation is created. The award made below is expunged from the decree and the matter is set at large to await a readjudication of the issue by the trial court. With respect to her right to support, attorney's fees and costs pending the retrial of the proceeding for permanent support, Mrs. Hall occupies no worse position than she had at the outset of the action. The final decree having been set aside, the parties retaining their status as husband and wife, the cause still 'pending' within the meaning of sections 137.2 and 137.3 of the Civil Code, and the matter of permanent alimony having been remitted for reconsideration by the trial court, the court is vested with jurisdiction to hear an application for the statutory allowances until the question of permanent support still at issue has been disposed of. Nelson v. Nelson, 7 Cal.2d 449, 453, 60 P.2d 982; Grannis v. Superior Court, 143 Cal. 630, 632-633, 77 P. 647. Cf. Bernard v. Bernard, supra, 79 Cal.App.2d at page 358, 179 P.2d 625. To hold otherwise would render nugatory the fundamental purposes of the statute, which is to provide a spouse with (1) such sum as may be necessary for support during the pendency of a divorce action, and (2) the means to secure adequate representation in, and defray the costs of, such suit. Whelan v. Whelan, 87 Cal.App.2d 690, 197 P.2d 361; Heller v. Heller, 88 Cal.App.2d [278 P.2d 131] 603, 199 P.2d 44. Like any spouse during the pendency of a divorce action in which, for good cause and sufficient reason, the issue of permanent alimony remains to be litigated, plaintiff is entitled to apply for temporary alimony for her maintenance until the matter is tried, and for counsel fees and costs so that she may adequately plead her cause at such trial. Lerner v. Superior Court, supra; Bernard v. Bernard, supra.
The effect of the majority decision is to prevent plaintiff from receiving interim support during such time as may be required to obtain a final disposition of this matter. The inequity of this position is apparent when it is recalled that it has been judicially determined that plaintiff is entitled to support, with only the amount thereof still at issue.
I would discharge the alternative writ.