Monroe v. Superior Court , 28 Cal. 2d 427 ( 1946 )

TRAYNOR, J.

A decree of separate maintenance ordered petitioner to pay his wife, for 27 months, $250 per month for her support and $50 per month for the support of their child. The decree provided that at the end of that period the payments for the support of the child should be increased to $100 per month. The court expressly reserved jurisdiction to make further orders regarding the support of the child, but made no such reservation as to the support of the wife. Petitioner' complied with the decree. After the expiration of the 27 months petitioner’s wife applied for a modification of the decree and a further allowance for her support, alleging that the circumstances upon which the decree was based had materially changed. Petitioner seeks a writ of prohibition to restrain respondent court from proceeding in the matter on the ground that it lacks jurisdiction to modify the decree.

A writ of prohibition can issue in this case only,if, despite changed circumstances, the trial court lacks jurisdiction to grant petitioner’s wife a further allowance for her support. Hence, the question is not what changes in circumstances would justify the court in modifying its decree, assuming that it has the power to do so, but whether it has that power, assuming a sufficient" change in circumstances.

The right to support arises out of the marriage relationship. (Civ. Code, § 155.) A separate maintenance decree does not end the marriage, and therefore does not end the obligation to support; it only regulates the extent of that support. It is settled that a decree of separate maintenance can be modified upon a showing of changed circumstances. (Civ. Code, § 137; 0 ’Toole v. 0 ’Toole, 215 Cal. 441, 443 [10 P.2d 461] ; Smith v. Smith, 113 Cal. 268, 271 [45 P. 332]; Booth v. Booth, 100 Cal.App. 28, 32 [279 P. 458] ; Parker v. Parker, 74 Cal.App. 646, 654 [241 P. 581], and cases cited in 42 C.J.S. § 626, n. 62.) This rule is applicable to the period for which support is granted as well as to the amount thereof. Just as it may become necessary to increase the amount of support for a period of special needs, so it may become necessary to grant support for a period not covered by the original decree.

Petitioner contends that section 137 of the Civil Code, which authorizes the court to modify its orders in a separate maintenance action, should be given a construction comparable to that of section 139 with respect to alimony in the ease of a divorce. He relies upon Long v. Long, 17 Cal.2d 409 [110 P.2d 383], and Tolle v. Superior Court, 10 Cal.2d 95 [73 P.2d 607], which held that the court has no power to modify a decree of divorce by granting a wife support after the decree has become final and the period has elapsed during which payments were to be made, unless the court reserved the power to do so. In Tolle v. Superior Court, supra, and Long v. Long, supra, the parties were no longer husband and wife when- the attempt was made to have the court modify its decree. In contrast, section 137 presupposes that the parties remain married.

When a divorce has been granted and the marital relation has ceased to exist, the jurisdiction that the court had over matters of support is exhausted unless the court has reserved it in an authorized manner. In the present ease, however, there was no need for the court to reserve jurisdiction at the time it rendered its decree, for its jurisdiction would continue as long as the marital relationship continued. The order that gave a 27-month allowance to petitioner’s wife did not give the court any jurisdiction over that allowance that it would not otherwise have had. Nor did it deprive the court of any jurisdiction that it otherwise would have had, for the court cannot divest itself of such jurisdiction while the parties remain married. So long as they are married, the court cannot refuse to consider whether the husband should be required to support his wife, for it not only has the power to grant an allowance to the wife for her support, but it may also have the duty to do so under certain circumstances. In Baumgarten v. Baungarten, 107 N.J.Eq. 274 [151 A. 606], the wife was awarded $5,000 in a lump sum for her separate maintenance in a decree that went even farther than the one in the present case, since it expressly stated that payment of that sum would permanently discharge the husband’s obligation. Two years later the court nevertheless held that upon a showing of changed circumstances the wife would be entitled to a further allowance for her support. “The court cannot divest itself of the authority and the duty to make such further orders touching the support and maintenance of the wife as may be just and equitable. The order of March 21, 1928, should be interpreted to mean that the payment of the gross sum of $5,000 should satisfy the claims of the complainant against the defendant for maintenance only until equity and justice require the payment of additional sums.” (107 N.J.Eq. 274, 280.)

Since the court has power under certain circumstances to deny any maintenance to the wife, it may give her an allowance for a limited period only. The court determined in the present case that given the circumstances in which the parties found themselves when the decree was rendered, petitioner’s wife should be given an allowance for 27 months only. When the decree was rendered, petitioner’s wife apparently had no objection to losing her allowance at the end of the 27 months, for she did not appeal from the decree. She does not now contend, however, that the court should then have given her an allowance for a longer period. She merely contends that circumstances have so changed that the court should now give her another allowance. In Binkow v. Binkow, 298 Mich. 609 [299 N.W. 734], the trial court granted separate maintenance to the wife for a period of two years. After that period elapsed the wife sought a further allowance for her support. The Supreme Court of Michigan denied her such allowance on the ground that she had made no showing of changed cireumstances. The court may similarly conclude in the present case that petitioner’s wife is not entitled to the modification that she seeks. Petitioner cannot prevent the court, however, from passing upon that question.

Petitioner contends that Erkenbrach v. Erkenbrach, 96 N.Y. 456, and Koehl v. Koehl, 92 Misc. 579 [156 N.Y.S. 234], support his position. Those eases are distinguishable, however, for they are concerned only with a question of statutory construction, and the statute involved, unlike section 137 of the Civil Code, did not allow the decree to be modified under any circumstances. Moreover, those cases involved decrees of limited divorce, whereas the present case is one of separate maintenance. It is not necessary to determine here in what respects an action for separate maintenance differs from actions for limited divorce, divorce from bed and board or judicial separation, as they are variously known (see 3 Nelson, Divorce and Annulment (2d ed., 1945) § 32.05) for, as it exists in California, it differs from them in one respect that makes the New York cases inapplicable. A limited divorce places the relationship of the parties beyond the reach of either of them alone. They are still married in the sense that neither may remarry, but they are no longer married in the sense that either can give the other the choice of resuming the marital relation or being guilty of desertion. As between themselves the parties are in the same position as they are after a decree of absolute divorce. The California law makes no provision for such limited divorces. It was expressly so held in McMullin v. McMullin, 123 Cal. 653 [56 P. 554], and although Grant v. Grant, 68 Cal.App. 23 [228 P. 412], contains a dictum to the contrary, the question was definitely settled in Cardinale v. Cardinale, 8 Cal.2d 762 [68 P.2d 351]. In that case the husband obtained a Nevada divorce some ten years after his wife had secured a decree of separate maintenance in this state. The husband then moved to stop his payments under that decree. The wife countered with an attack upon the divorce and the contention that the maintenance decree had established that not she but her husband was at fault. This court held that, although that decree established she was the innocent party when it was rendered, her attack upon the divorce must fail, for the evidence disclosed that the husband may have made a subsequent offer in good faith to fulfill his marital obligations and that she may thereafter have given him a cause of action for divorce. It is clear that had the decree that she secured been a decree of limited divorce, a subsequent offer to resume marital relations could have no effect, at least not until it was accepted.

Petitioner’s application for a writ of prohibition is denied and the alternative writ heretofore issued is discharged.

Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.