In Re McKenna , 116 Cal. App. 232 ( 1931 )

I concur in the judgment. It is clear, however, that the commitment under which the petitioner was placed in custody is not based upon the two orders mentioned in the opinion. The commitment is itself a copy of the order finding the defendant guilty of contempt and directing his imprisonment therefor. This commitment or order purports to find that the defendant is in contempt by reason of his failure to comply with a judgment entered on the seventh day of January, 1929, ordering that the plaintiff pay the defendant $60 per month. But said judgment contained no such order. [1] It is conceded that the judgment of January 7th was an interlocutory decree, merely determining that the plaintiff husband was entitled to a divorce from the defendant, without making any provision for support of the wife. It appears that on February 29th, six weeks after the date of the interlocutory decree, the parties by stipulation prevailed upon the court to attempt to modify the interlocutory judgment by adding thereto an order that the plaintiff pay to the defendant the sum of $60 per month, "said payments to continue until defendant remarries". The provision in the said amendment to the decree, in accordance with the stipulation, that such payments should constitute a full and complete settlement of any and all property rights "now existing or which may hereafter exist between the parties hereto," is not sufficient to deprive said amendment of its true character, which is that of an attempt to require the payment of alimony. Considered in that aspect the amendment was void, because there is no authority in law by which a court in granting a divorce to the husband for the fault of the wife may at the same time compel him to pay alimony to the wife. (Lampson v. Lampson, 171 Cal. 332 [153 P. 238]; McKannay v. McKannay, 68 Cal.App. 701, 705 [230 P. 214].)

I agree that the petitioner should be discharged from custody.

Houser, J., concurred.