Opinion
Hearing Granted Nov. 23, 1960.
Opinion vacated 10 Cal.Rptr. 634.
George I. Devor, Los Angeles, for petitioner, Justin Graf, Los angeles.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.
Crowley & Rhoden, Hollywood, for real party in interest.
ASHBURN, Justice.
Petition for writ of mandate requiring the Superior Court (1) to hear upon the merits an order to show cause issued in a rescission suit, calling upon the husband to pay to petitioner attorney fees, court costs and support for herself and children, and (2) to vacate its order continuing until September 12, 1960, an order issued in a divorce action between the parties requiring the husband to show cause why petitioner should not be awarded custody of all minor children and an increase in allowance for their support; the petition also prays that respondent court be required to hear the matter forthwith. We direct our attention first to the order to show cause in the rescission suit, Superior Court No. Petitioner, as plaintiff, procured a default interlocutory judgment of divorce from her husband, Charles B. See, on April 28, 1959, in cause No. D551397 on the records of respondent court. The parties had made a property settlement agreement which the court followed in the decree, but it does not clearly appear whether it was specifically approved or incorporated, a factor which seems immaterial to the problem before us. A final judgment of divorce was entered on April 27, 1960. Respondent says it was granted upon petitioner's motion but the fact, if it be such, is not affirmatively established. Again we deem this uncertainty in the record to be of no consequence.
On April 13, 1960, two weeks before entry of final decree, petitioner gave notice of rescission of the property settlement agreement upon the grounds of frauds, misrepresentations, deceit, exercise of undue influence upon petitioner and mutual mistake. This was followed by an action for judicial rescission of the agreement, which was commenced on May 12, 1960. An amended complaint was thereafter filed which attacked the property settlement agreement upon the same grounds and also sought vacation of the portions of the interlocutory decree pertaining to the subject matter of the property agreement but not seeking a vacation of the portion awarding a divorce. An order was obtained thereon directing the husband to show cause why he should not be required to pay petitioner reasonable attorney fees, court costs and support and maintenance for herself and minor children, also the award to her of custody of all four children. Upon the return day the court dismissed the order to show cause upon the ground that it would not lie in a 'civil action' as distinguished from a divorce action.
The theory of the trial judge and of the respondent herein is that existence of a marriage relationship is essential to an allowance for support, attorney fees, etc., and as plaintiff does not seek vacation of the divorce, no basis for such an award has been or can be found. Cases cited in support of that thesis include Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528, but that decision (and inferentially others like it) was overruled in Hudson v. Hudson, 52 Cal.2d 735, 745, 344 P.2d 295. The basis of the overruling was failure of Dimon to adequately recognize the concept of divisible divorce enunciated in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456, and numerous later cases. The court said in Hudson, supra, 52 Cal.2d at page 745, 344 P.2d at page 300: 'After Estin, but before Vanderbilt, the argument could have been made that by terminating the marriage the ex parte divorce automatically terminated all rights, including the nonadjudicated right to support that grew out of that marriage. But after the Vanderbilt case, such a proposition cannot be maintained, for it is now clear that the ex parte proceeding does not affect the wife's support rights. By treating the Connecticut decree as terminating any possibility that the plaintiff in Dimon could secure a support award in this state, we gave that decree more weight in this state than it is now constitutionally entitled to receive. To follow Dimon after Vanderbilt in a case involving a foreign ex parte divorce is to permit the court of another state to preclude the courts of this state from deciding a question of California law that the foreign court had no jurisdiction to determine. Under Vanderbilt the conclusion is inescapable that the issue of alimony, which could not be decided by the divorce court, remains open for determination in a proper forum. The Dimon case is therefore overruled * * *. Since plaintiff may maintain her action for permanent alimony without attacking defendant's Idaho decree, it follows that she may receive temporary alimony, costs, and fees to enable her to continue the suit when she has shown that she needs such relief and that defendant has the ability to provide such assistance.'
It seems to be true that the Hudson case, in saying '[t]he Dimon case is therefore In that instance the wife Geraline secured on September 3, 1958, an uncontested divorce decree which incorporated an integrated property settlement agreement of the parties. In July, 1959, Geraline commenced a civil action against the husband Thomas and a new wife whom he had married in Mexico, praying for an injunction against violation of the interlocutory divorce decree by Thomas and against Lynn Starr (the new wife) receiving any property belonging to Thomas, also for judgment requiring Thomas to convey to Geraline certain property included in the settlement agreement or to pay her $150,000 in cash. That action was still pending at the time of the Supreme Court's decision to which reference has been made. It grew out of a motion of Geraline, filed in August, 1959, to prevent the entry of final decree. Thomas resisted the motion and made a counter motion for entry of the final. The trial court granted Geraline's motion to bar entry of the same. Thomas brought a proceeding in mandamus to compel the lower court to enter the final decree. This is the matter decided in 54 Cal.2d 139, 5 Cal.Rptr. 1.
In granting the writ the court said, at page 145 of 54 Cal.2d, at pages 4-5 of 5 Cal.Rptr.: 'The trial court, in the present case, has barred the entry the final decree for what, at most, is a mere breach of contract. To countenance such a procedure would be violative of the public policy of this state. That policy is not to discourage final and permanent severance of marriages that have failed. It has been stated that: '* * * when a marriage has failed and the family has ceased to be a unit, the purposes of family life are no longer served and divorce will be permitted. '[P]ublic policy does not discourage divorce where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed.' [Citing cases.]' De Burgh v. De Burgh, 39 Cal.2d 858, at page 864, 250 P.2d 598, at page 604.' At page 147 of 54 Cal.2d, at pages 5-6 of 5 Cal.Rptr.: 'The refusal to enter the final decree forces the continuation of a marriage which is no longer a going unit, and has not been such for a period of more than one year. There are no allegations of reconciliation or cohabitation. There has been neither mistake nor fraud. The parties are simply involved in a property dispute arising from a contract which they freely executed, each being represented by counsel, in an attempt to settle all property obligations resulting from their marriage. The marital relationship is severable from the property rights which it creates, and final settlement of the relationship should not be dependent upon final settlement of corollary property interests.' (Emphasis added.) This brought the court to consideration of the 'divisible divorce' decisions, their history and their ultimate philosophy. At page 147 of 54 Cal.2d, at page 6 of 5 Cal.Rptr.:
'The concept of divisible divorce has become established in our law. Beginning with Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, [1 A.L.R.2d 1412], many cases have held that a divorce action which severs the personal relationship of the parties does not necessarily determine their property rights. In Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295, this court held that an ex parte divorce which had terminated the marital status did not extinguish the wife's property right to alimony. See also Weber v. Superior 'The divisible divorce is more than a jurisdictional concept. Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness. If the parties choose to enter into a property agreement, termination of their personal status should not be conditioned upon compliance with this agreement. If they enter into an integrated property settlement which provides for support payments as well as property allocation the entire agreement is considered a property agreement (Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873, and cases cited therein; Finnegan v. Finnegan, 42 Cal.2d 762, 269 P.2d 873) and should be divisible in toto from the final dissolution of their personal status. Otherwise property disputes, real and specious, could continue for years, effectively preventing the legal establishment of any other relationship by either party. See Harrold v. Harrold, 43 Cal.2d 77, 271 P.2d 489.' (Emphasis added.)
At page 149 of 54 Cal.2d, at page 7 of 5 Cal.Rptr.: 'Entry of the final decree is not a reward for good behavior nor is the refusal to grant it a punishment. Its purpose is to finally dissolve a relationship which has been severed in fact. It would serve no legitimate purpose to compel Thomas to continue to live in a state of bigamy as punishment for already having done so. 'It is degradation of marriage and a frustration of its purposes when the courts use it as a device for punishment.' (De Burgh v. De Burgh, 39 Cal.2d at page 864, 250 P.2d at page 601.)'
The conclusion (54 Cal.2d at page 151, 5 Cal.Rptr. at page 8): 'It is therefore ordered that a writ of mandate issue directing the trial court to set aside its order denying the motion for the entry of the final decree, to enter its order granting that motion, and thereupon to enter judgment in conformity with the order.'
There seems to be no escape from the conclusion that this case takes 'divisible divorce' out of the jurisdictional realm (if it ever was so confined) and establishes it as the law pertaining to domestic divorces as well as those of foreign jurisdictions.
Whatever doubt is thrown upon this proposition by Hudson v. Hudson, supra, 52 Cal.2d 735, 744, 344 P.2d 295, 300, is readily dissipated by reference to the cases cited in the following passage: 'The broad proposition of the Dimon case that alimony cannot be granted if the marriage has been dissolved cannot be denied, if the marriage was dissolved in this state and the court had jurisdiction over both spouses. See Long v. Long, 17 Cal.2d 409, 410, 110 P.2d 383; Tolle v. Superior Court, 10 Cal.2d 95, 97-98, 73 P.2d 607.' The Long case and the Tolle case hold that property rights and alimony must be determined at the time of granting the divorce and cannot be passed upon later, unless, as suggested in Tolle and White v. White, 130 Cal. 597, 599, 62 P. 1062 (cited in Tolle) jurisdiction is expressly reserved in the divorce decree. The inevitable effect of the Hull decision is to put an end to this doctrine and establish as part of California law the divisible divorce doctrine wherever equitably applicable. Cases cited by respondent, such as, Reeves v. Reeves, 34 Cal.2d 355, 361, 209 P.2d 937 and Colbert v. Colbert, 28 Cal.2d 276, 279, 169 P.2d 633, are also subject to the controlling influence of Hull. This is not to The case of Fisher v. Superior Court, 110 Cal.App. 565, 294 P. 445, becomes pertinent here. The husband obtained a default divorce on August 1, 1929. On August 2, 1930, the wife filed a complaint for separate maintenance and also alleged a cause of action to set aside the interlocutory decree upon the ground of extrinsic fraud. The court made an order requiring the husband to pay to the wife during the 'civil' action a certain sum for support of herself and her children, also the sum of $75 as attorneys' fee therein. A later order required the husband to show cause why he should not be punished for contempt for refusal to comply with the support order. He sought prohibition, which was denied, the court saying at page 567 of 110 Cal.App., at page 446 of 294 P.: 'Assuming for the moment that petitioner here was guilty of fraud designed, intended, and which actually resulted in preventing the defendant from having a fair trial of the divorce action, and that the judgment rendered against her by reason thereof was unjust and unconscionable, it is obvious that in the eyes of a court of equity it is as though no judgment had ever been rendered. In the proceeding to set aside the judgment on the grounds mentioned and to secure separate maintenance, the court is clothed with the same jurisdiction as though no decree had been rendered.' (Emphasis added.)
Factual distinctions drawn by respondent with respect to the Fisher case seem to be inconsequential, for the opinion holds that a wife who is attempting to set aside the whole decree is in the potential position of a successful complainant and hence entitled to monetary assistance in maintaining her suit. In the case before us plaintiff in the equity case, invoking the divisible divorce doctrine, would set aside all of that portion of the decree pertaining to property aspects of the marriage relationship while acquiescing in the divorce itself. Essentially she is in the same position as defendant wife who was awarded attorneys' fees, etc., in the Fisher case, supra, and the doctrine there announced is here applicable. She is entitled to a hearing of the order to show cause and a determination of the same upon the merits. To that end a peremptory writ of mandamus is the appropriate and necessary remedy.
Re order to show cause in divorce action. This order, made returnable on July 15, 1960, is based upon petitioner's affidavit of changed circumstances and calls upon respondent to show cause why petitioner should not be given custody of all minor children of the parties and should not be awarded an increase in allowance for the support of the children. The lower court, over petitioner's objections, continued the hearing of this motion from July 15, 1960 to September 12, 1960, in order to permit depositions to be taken and to enable Charles See to have present his principal attorney who was then in Africa and due back in Los Angeles in mid-September. Petitioner assigns this as an abuse of discretion and insists upon a right to immediate hearing. Affidavits are not jurisdictional or essential upon a motion for continuance (Winkie v. Turlock Irr. Dist., 24 Cal.App.2d 1, 6, 74 P.2d 302; Flynn v. Fink, 60 Cal.App. 670, 675, 213 P. 716). An examination of the record before us fails to reveal an abuse of the discretion which the court is authorized to exercise in such a matter. Therefore we cannot interfere with the ruling of the lower court (California Canning Mach. Co. v. Superior Court, 3 Cal.2d 606, 609, 44 P.2d 1046; Schlothan v. Rusalem, 41 Cal.2d 414, 417, 260 P.2d 68).
Let a peremptory writ of mandate issue as prayed with respect to the order to show cause in the 'civil' action, Superior Court No. 745504, only. In other respects relief sought by petitioner herein is denied.
FOX, P. J., and KINCAID, J. pro tem., concur.