Opinion
Hearing Granted April 21, 1949.
Appeal from Superior Court, Colusa County; Ben R. Ragain, Judge.
Action by Alice D. Codorniz against Joseph M. Codorniz wherein plaintiff was granted a divorce and awarded custody of three children. Interlocutory and final decrees awarded community property to defendant subject to the condition that there be paid plaintiff the sum of $140 per month. From an order modifying the interlocutory and final decrees by awarding community property unconditionally to defendant, but requiring defendant to pay the sum of $105 per month for maintenance of minor children, plaintiff appeals. Reversed.
COUNSEL
Brown, Ford & Cooney, of Colusa, for appellant.
Rutledge & Rutledge, of Colusa, for respondent.
OPINION
THOMPSON, Justice.
The plaintiff appealed from an order in a divorce case modifying the interlocutory and the final decrees with respect to the assigning of community property to the defendant subject to his payment of stated monthly sums.
The plaintiff and defendant were husband and wife. Three children were born as the issue of the marriage. Plaintiff brought suit for divorce on the ground of extreme cruelty. The complaint alleged that the spouses owned, as community property, an equity in a one-third interest in a dairy business valued at $30,000. That was a direct issue in the divorce case. June 6, 1944, the interlocutory decree was entered, granting plaintiff a divorce on the ground of extreme cruelty, and awarding to her the custody of the three children. The decree determined that the community property consisted of an equity in a "one-third (⅓ ) interest in and to the real property" described in exhibit A, and an equity in a one-third interest in the dairy business. No other property was determined to be community property or distributed by the decree. The decree provided that said community property should be "awarded to the Defendant, subject, however, to the following charges, restrictions and conditions: 1. Defendant herein shall pay to Plaintiff herein the sum of One Hundred Forty Dollars ($140.00) per month, as and for the support and maintenance of Plaintiff and the minor children of the parties hereto, on the first day of each and every calendar month." June 12, 1945, the final decree was rendered and entered, determining the community interest in said property in the language above quoted. The plaintiff remarried July 12, 1946. Her name is now Alice Ferris. She resides with her husband in Oregon. The oldest daughter, Dorothy, is also married. All payments under the decree were made by the defendant until some time after the remarriage of plaintiff.
Assuming that the divorce decree was not a final determination and disposition of the community property under Section 146 of the Civil Code, but that it was a mere award of a specified sum per month for maintenance and support of the wife and minor children under Section 139 of that code, and that the obligation to support the wife terminated upon her remarriage (Civil Code, sec. 139), the defendant sought to obtain a modification of the decrees and a reduction of said payments of $140 per month. For that purpose an order to show cause why the decrees should not be so modified and changed was issued and served. That motion was heard on December 15, 1947. The plaintiff appeared and objected to the jurisdiction of the court and to the evidence offered in support of the motion, on the ground that the decree of divorce is final and conclusive with respect to the determination and disposition of the community interest in the dairy property, which was assigned to the defendant "subject" to the "charges, restrictions and conditions" that defendant would pay to plaintiff, as her share of the community property, $140 per month. The plaintiff’s objections were overruled, and considerable evidence of the changed conditions, as above related, was adduced. The plaintiff testified that the value of their one-third interest in the dairy business was $10,000. The defendant did not deny their community interest in that property. But he said they originally had a one-third interest in 159 acres of land and the dairy business conducted thereon, which cost them only $7,500; that they milked 59 cows, and that the net income from the business was $267 per month. He said that the original interest of one of the owners was subsequently purchased and that he and his father now own and operate the dairy business, share and share alike.
Upon the conclusion of the evidence on that hearing the court made its order and decree, from which this appeal was perfected, modifying and changing the provisions of the interlocutory and final decrees of divorce, with respect to the determination of the community interests in the property and the award to plaintiff of $140 per month in lieu of her share therein. That order determines that "the charges, restrictions and conditions" of the assignment of the one-third community interest in the dairy business "be, and the same are, hereby removed, vacated and annulled," and that said property "is hereby discharged and released from all of said charges, restrictions and conditions." The court further determined that the defendant "shall be and he is hereby relieved of payments for the support of plaintiff" from and after her remarriage on July 26, 1946. The court then made an award to plaintiff for the maintenance of the minor children in the sum of $105 per month from the date last mentioned.
It will be observed the court construed the decree of divorce to mean that plaintiff was awarded no share in the community property whatever, and that the decree merely provided for an award of $140 per month "for the support and maintenance of Plaintiff and the minor children", which terminated, so far as plaintiff’s support is concerned, under Section 139 of the Civil Code, upon her remarriage. That construction would appear to result unjustly to plaintiff and contrary to the mandatory provisions of Section 146 of that code, by depriving her of any portion of the community property, notwithstanding the fact that she was awarded a divorce against the defendant on the ground of extreme cruelty. The language of both the interlocutory and final decrees of divorce seems to preclude that unfair construction. It would also be contrary to the original finding of the court that the spouses had a one-third community interest in that property.
The final decree of divorce may not be construed to be a mere allowance to plaintiff of $140 per month for "support and maintenance." The expressed conditions upon which the community property was vested in the defendant refute that construction. The statutes preclude the awarding of all the community property to one against whom a divorce has been granted on the ground of extreme cruelty. The judgment in the case of Tipton v. Tipton, 209 Cal. 443, 288 P. 65, in which the trial court awarded all the community property to the husband against whom a divorce was granted on the ground of extreme cruelty, was reversed. The Supreme Court said: "The sole question for determination is this: May the trial court lawfully award all of the community property to the offending party when the divorce is granted on the grounds of desertion and extreme cruelty? The question must be answered in the negative. *** When the divorce is granted on the ground of desertion alone, there is no discretion to divide the community property other than equally, and the plain inference to be derived from the foregoing Code sections is that when the divorce is granted on the ground of extreme cruelty the non-offending party is entitled to more than that awarded to one who is at fault. Eslinger v. Eslinger, 47 Cal. 62; Quagelli v. Quagelli, 99 Cal.App. 172, 277 P. 1089; 5 Cal.Jur. p. 358 et seq., and cases therein cited."
We therefore conclude the award which was made in this case constituted a determination and distribution to plaintiff of her share of the community property, which award was not subject to amendment by rescinding the specified conditions of vesting it in the defendant and by reducing the amount of the award.
We are convinced the court erred in modifying the final decree of divorce by rescinding the provision therein with respect to the disposition of plaintiff’s interest in the community property. It is apparent that unless the payments allowed by the decree of $140 per month represented plaintiff’s share in the community property, then the court failed to award her any portion of her community interest in the property, which is inconsistent with the pleadings and the findings of the court. It seems clear that the provisions of the decree must be construed to mean that the divorce court thereby sought to and did settle between the parties their community interests in the dairy property. That being true, the final decree of divorce was conclusive and res judicata of said community property interest which may not be modified or changed in a subsequent attack, unless the decree was procured by fraud. It is not contended there was any fraud exercised in that regard.
It is true that the decree, after finding that the spouses had community interests in the property, and after assigning it to the defendant subject to the charges, restrictions and conditions of paying to plaintiff $140 per month, added thereto the language "for the support and maintenance of Plaintiff and the minor children." But the last quoted language is immaterial since the provision of the decree was in fact a division and disposition of the community interests. In Baxter v. Baxter, 3 Cal.App.2d 676 at page 682, 40 P.2d 536, at page 538, where a similar divorce decree involving community property was determined, the court said:
"The court has statutory power to award alimony to an innocent wife, regardless of a property settlement, and whenever alimony is awarded by virtue of the statute, the court retains the power to change the amount, upon a showing being made that there has been a change in conditions. Soule v. Soule, 4 Cal.App. 97, 87 P. 205.
"But if an order for monthly payments is based upon a property settlement the amount cannot be subsequently increased or reduced. [Citing authorities.]"
Numerous authorities support the previous statement that where the decree of divorce purports to determine the property rights of the spouses in community property it becomes final and conclusive in that regard, and may not be modified or changed, except upon appeal from the judgment or in a suit based upon fraud. Dupont v. Dupont, 4 Cal.2d 227, 48 P.2d 677; Wallace v. Wallace, 136 Cal.App. 488, 29 P.2d 314; Ettlinger v. Ettlinger, 3 Cal.2d 172, 177, 44 P.2d 540; Hogarty v. Hogarty, 188 Cal. 625, 627, 206 P. 79; Johnson v. Johnson, 104 Cal.App. 283, 288, 285 P. 902; 27 C.J.S., Divorce, § 300 d, p. 1153. In the Ettlinger case, supra, the plaintiff was awarded the sum of $250 per month upon a settlement of property rights pursuant to a previous property settlement agreement, for her "support and maintenance" exactly as the decree in the present action does. After payments had been made by the defendant for the period of two and a half years, on his motion for a modification of the award on account of changed conditions, the court modified the judgment and reduced the required payments to the sum of $175 per month. On appeal that judgment was reversed. The Supreme Court said [3 Cal.2d 172, 44 P.2d 543]: "We are satisfied from an examination of the entire agreement [upon which the original judgment was based], having particular reference to the above quoted provisions thereof, that it was the intention of the parties to definitely, fully, and permanently adjust and settle all of their property rights. The agreement indicates that the monthly payments to be made thereunder by defendant to plaintiff, stated to be for the latter’s ‘support and maintenance,’ constituted an integral and important element in the amicable adjustment and liquidation of such property rights. In our opinion, the contract suggests that such payments were to be made to and received by plaintiff as part of the property settlement and in lieu of property rights. This would appear to have been recognized in both the interlocutory and final decrees of divorce, ***."
In the preceding case from which we have quoted the Supreme Court held that, notwithstanding the fact that the allowance was made for "support and maintenance," since that language was used in the settlement of property rights, as it was in the present case, "The court was therefore without jurisdiction to thereafter modify its provisions."
The only distinction between that case and the present one is that the allowance in the Ettlinger decree of divorce was based on the provisions of a former property settlement agreement, while no such agreement existed in this case. But it is nevertheless true that the challenged language of the final decree of divorce in this case was used by the court in determining and disposing of the community property, which was a direct issue in this case. The same principle is involved in both cases.
Moreover, the rule is well established by the California cases that where community interests in property are placed in issue and determined in a divorce proceeding, by either the interlocutory or final decree, the judgment becomes res judicata, and may not thereafter be modified or changed. Allen v. McCrary, 220 Cal. 508, 31 P.2d 388; Hough v. Hough, 26 Cal.2d 605, 616, 160 P.2d 15; Huber v. Huber, 27 Cal.2d 784, 793, 167 P.2d 708; Allen v. Allen, 159 Cal. 197, 202, 113 P. 160; Green v. Green, 66 Cal.App.2d 50, 60, 151 P.2d 679; Citizens National Trust & Savings Bank of Los Angeles v. Hawkins, 87 Cal.App.2d 535, 197 P.2d 385; 17 Am.Jur. 400, sec. 490; 11 Am.Jur. 223, sec. 75; 5 Cal.Jur. Ten Year Supp. 317, sec. 107a; 1 So.Calif.Law Review, p. 165; Tarien v. Katz, 216 Cal. 554, 15 P.2d 493, 85 A.L.R. 339.
The order modifying the interlocutory and final decrees of divorce with respect to the determination and vesting of community property and the conditions attached thereto are reversed.
ADAMS, P.J., and PEEK, J., concur.