SHENK, J.
This is an action by a former wife against her former husband to obtain past and future alimony for herself and past and future support for the children of the marriage previously terminated by a divorce in Connecticut. The defendant interposed a cross-complaint alleging that certain real and personal property is held by the plaintiff in trust for the defendant.
[519]*519The trial court by judgment entered on the 25th of November, 1949, awarded the plaintiff $1,950 for ‘1 alimony and support” for herself from the date of the Connecticut decree until her remarriage on August 31, 1948; also $1,850 for the “support, care and maintenance” of the two minor children from date of that decree until the commencement of this action on August 4, 1947; also the sum of $37.50 per month for the support of each child from the commencement of this action until majority. The judgment included an award of $500 counsel fees and $48.15 costs. On the cross-complaint the judgment was that the defendant take nothing. The defendant appealed from the judgment and the whole thereof. After the appeal was taken the court on the plaintiff’s motion made an award of $750 counsel fees, $250 costs and $37.50 per month for the support of the child who was still a minor during the pendency of the appeal. There is also an appeal from that order.
The parties were married in Oregon in 1926. In 1945 they separated. In March, 1946, the plaintiff wife obtained a divorce in Connecticut based on constructive service only. That decree awarded the custody of the two children to the plaintiff and purported to award alimony and child support to the plaintiff.
Both parties are nonresidents of this state. The plaintiff and the children live in Oregon, and the defendant in Nevada. The suit was brought by the plaintiff suing in her own name and right to recover money she had paid out for past support of the children and herself, and for future alimony and support of the children. The children are not parties to the action. The plaintiff concedes that the “in personam” provisions of the Connecticut decree cannot be enforced, and the present action is not based on those provisions.
The primary question concerns the jurisdiction of California courts to enforce a support obligation of a nonresident former husband under the foregoing circumstances.
An examination of the law on the subject indicates merit in the defendant’s contention that in this state a wife’s right to recover alimony or support for herself is limited to the period when the parties are husband and wife.
Section 136 of the Civil Code provides: “Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children. ...”
[520]*520Section 137, as it existed at the time this action was commenced provided that, “When an action for divorce is pending” the court may require the payment of alimony or support. It also provided that “During the pendency of any such action” the court may require payments for alimony, costs, attorney’s fees and support and maintenance.
Section 139 as it existed at the time of the commencement of this action provided that “Where a divorce is granted for an offense of the husband, the court may compel him to . . . make such suitable allowance to the wife for her support ... as the court may deem just. ...”
The language of these sections shows a consistent legislative purpose to confine the powers of the court to decree support in any form to the period when actions for divorce, annulment and separate maintenance are pending, including time on appeal and such further time as may be within the scope of the decree in the particular action. The amendments to sections 137, 138 and 139 since this action was commenced (Stats. 1951, vol. 2, p. 3910) do not change the provisions of these sections in matters here relevant. Primarily, the amendments broaden the provisions for separate maintenance where the marriage still exists. The language employed indicates a continued legislative purpose to limit the time during which application for alimony and support may be made. Our courts have consistently recognized that the existence of the marital status is a prerequisite to the granting of alimony (Colbert v. Colbert, 28 Cal.2d 276, 279 [169 P.2d 633] ; Carbone v. Superior Court, 18 Cal.2d 768, 771 [117 P.2d 872, 136 A.L.R. 1260] ; Talbot v. Talbot, 218 Cal. 1, 2 [21 P.2d 110]). The application for alimony has been held to be a collateral proceeding or episode within the action for divorce, authorized for a particular purpose, but dependent for its maintenance upon the existence of the action. (Kellett v. Marvel, 9 Cal.App.2d 629, 630-631 [51 P.2d 185]; see, also, Dunphy v. Dunphy, 161 Cal. 87, 91 [118 P. 445]; Hite v. Hite, 124 Cal. 389, 393 [57 P. 227, 71 Am.St.Rep. 82, 45 L.R.A. 793]; Sharon v. Sharon, 67 Cal. 185, 197 [7 P. 456, 635, 8 P. 709].) In Howell v. Howell, 104 Cal. 45 [37 P. 770, 43 Am.St.Rep. 70], it was held that the court had no jurisdiction to make an award for alimony to a wife who previously had obtained a final decree of divorce based on constructive service only. The court relied upon the provisions of the Civil Code referred to above to the effect that alimony could be decreed [521]*521only “when an action lor divorce is pending” (Civ. Code, § 137). The case at bar is a close parallel to the Howell case, with the exception that in the present case the plaintiff’s prior divorce decree was not issued by a court of this state and she seeks relief in a new and independent action. To permit her to prevail in this action would afford greater relief than would be available to her had she been a resident of this state and brought her original action here. The Howell decision has been followed in numerous cases, including McClure v. McClure, 4 Cal.2d 356, 359 [49 P.2d 584, 100 A.L.R. 1257]; Tolle v. Superior Court, 10 Cal.2d 95, 97 [73 P.2d 607] ; Puckett v. Puckett, 21 Cal.2d 833, 841 [136 P.2d 1] ; Calhoun v. Calhoun, 70 Cal.App.2d 233, 237 [160 P.2d 923] ; Patterson v. Patterson, 82 Cal.App.2d 838, 842 [187 P.2d 113]; Hinson v. Hinson, 100 Cal.App.2d 745, 746 [224 P.2d 405],
The plaintiff seeks to distinguish the Howell case on the ground that the action there was brought upon the prior divorce decree, whereas in the present case the action is one in equity, so called, and not dependent upon the provisions of the codes. It is claimed that the superior courts of this state have the same jurisdiction in equity possessed by the English courts of chancery unless prohibited by statute (Tulare Irr. Dist. v. Superior Court, 197 Cal. 649, 660 [242 P. 725]); that although the code sections provide no authority for the cause of action she has attempted to state, they do not prohibit such an action; that “for every wrong there is a remedy” (Civ. Code, § 3523); that the powers of a court of equity should not be “confined by rigid rules of law,” and that “its powers should be so broad as to be capable of dealing with novel conditions.” (Citing Bechtel v. Wier, 152 Cal. 443, 446 [93 P. 75, 15 L.R.A.N.S. 549].)
Free access — add to your briefcase to read the full text and ask questions with AI
SHENK, J.
This is an action by a former wife against her former husband to obtain past and future alimony for herself and past and future support for the children of the marriage previously terminated by a divorce in Connecticut. The defendant interposed a cross-complaint alleging that certain real and personal property is held by the plaintiff in trust for the defendant.
[519]*519The trial court by judgment entered on the 25th of November, 1949, awarded the plaintiff $1,950 for ‘1 alimony and support” for herself from the date of the Connecticut decree until her remarriage on August 31, 1948; also $1,850 for the “support, care and maintenance” of the two minor children from date of that decree until the commencement of this action on August 4, 1947; also the sum of $37.50 per month for the support of each child from the commencement of this action until majority. The judgment included an award of $500 counsel fees and $48.15 costs. On the cross-complaint the judgment was that the defendant take nothing. The defendant appealed from the judgment and the whole thereof. After the appeal was taken the court on the plaintiff’s motion made an award of $750 counsel fees, $250 costs and $37.50 per month for the support of the child who was still a minor during the pendency of the appeal. There is also an appeal from that order.
The parties were married in Oregon in 1926. In 1945 they separated. In March, 1946, the plaintiff wife obtained a divorce in Connecticut based on constructive service only. That decree awarded the custody of the two children to the plaintiff and purported to award alimony and child support to the plaintiff.
Both parties are nonresidents of this state. The plaintiff and the children live in Oregon, and the defendant in Nevada. The suit was brought by the plaintiff suing in her own name and right to recover money she had paid out for past support of the children and herself, and for future alimony and support of the children. The children are not parties to the action. The plaintiff concedes that the “in personam” provisions of the Connecticut decree cannot be enforced, and the present action is not based on those provisions.
The primary question concerns the jurisdiction of California courts to enforce a support obligation of a nonresident former husband under the foregoing circumstances.
An examination of the law on the subject indicates merit in the defendant’s contention that in this state a wife’s right to recover alimony or support for herself is limited to the period when the parties are husband and wife.
Section 136 of the Civil Code provides: “Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children. ...”
[520]*520Section 137, as it existed at the time this action was commenced provided that, “When an action for divorce is pending” the court may require the payment of alimony or support. It also provided that “During the pendency of any such action” the court may require payments for alimony, costs, attorney’s fees and support and maintenance.
Section 139 as it existed at the time of the commencement of this action provided that “Where a divorce is granted for an offense of the husband, the court may compel him to . . . make such suitable allowance to the wife for her support ... as the court may deem just. ...”
The language of these sections shows a consistent legislative purpose to confine the powers of the court to decree support in any form to the period when actions for divorce, annulment and separate maintenance are pending, including time on appeal and such further time as may be within the scope of the decree in the particular action. The amendments to sections 137, 138 and 139 since this action was commenced (Stats. 1951, vol. 2, p. 3910) do not change the provisions of these sections in matters here relevant. Primarily, the amendments broaden the provisions for separate maintenance where the marriage still exists. The language employed indicates a continued legislative purpose to limit the time during which application for alimony and support may be made. Our courts have consistently recognized that the existence of the marital status is a prerequisite to the granting of alimony (Colbert v. Colbert, 28 Cal.2d 276, 279 [169 P.2d 633] ; Carbone v. Superior Court, 18 Cal.2d 768, 771 [117 P.2d 872, 136 A.L.R. 1260] ; Talbot v. Talbot, 218 Cal. 1, 2 [21 P.2d 110]). The application for alimony has been held to be a collateral proceeding or episode within the action for divorce, authorized for a particular purpose, but dependent for its maintenance upon the existence of the action. (Kellett v. Marvel, 9 Cal.App.2d 629, 630-631 [51 P.2d 185]; see, also, Dunphy v. Dunphy, 161 Cal. 87, 91 [118 P. 445]; Hite v. Hite, 124 Cal. 389, 393 [57 P. 227, 71 Am.St.Rep. 82, 45 L.R.A. 793]; Sharon v. Sharon, 67 Cal. 185, 197 [7 P. 456, 635, 8 P. 709].) In Howell v. Howell, 104 Cal. 45 [37 P. 770, 43 Am.St.Rep. 70], it was held that the court had no jurisdiction to make an award for alimony to a wife who previously had obtained a final decree of divorce based on constructive service only. The court relied upon the provisions of the Civil Code referred to above to the effect that alimony could be decreed [521]*521only “when an action lor divorce is pending” (Civ. Code, § 137). The case at bar is a close parallel to the Howell case, with the exception that in the present case the plaintiff’s prior divorce decree was not issued by a court of this state and she seeks relief in a new and independent action. To permit her to prevail in this action would afford greater relief than would be available to her had she been a resident of this state and brought her original action here. The Howell decision has been followed in numerous cases, including McClure v. McClure, 4 Cal.2d 356, 359 [49 P.2d 584, 100 A.L.R. 1257]; Tolle v. Superior Court, 10 Cal.2d 95, 97 [73 P.2d 607] ; Puckett v. Puckett, 21 Cal.2d 833, 841 [136 P.2d 1] ; Calhoun v. Calhoun, 70 Cal.App.2d 233, 237 [160 P.2d 923] ; Patterson v. Patterson, 82 Cal.App.2d 838, 842 [187 P.2d 113]; Hinson v. Hinson, 100 Cal.App.2d 745, 746 [224 P.2d 405],
The plaintiff seeks to distinguish the Howell case on the ground that the action there was brought upon the prior divorce decree, whereas in the present case the action is one in equity, so called, and not dependent upon the provisions of the codes. It is claimed that the superior courts of this state have the same jurisdiction in equity possessed by the English courts of chancery unless prohibited by statute (Tulare Irr. Dist. v. Superior Court, 197 Cal. 649, 660 [242 P. 725]); that although the code sections provide no authority for the cause of action she has attempted to state, they do not prohibit such an action; that “for every wrong there is a remedy” (Civ. Code, § 3523); that the powers of a court of equity should not be “confined by rigid rules of law,” and that “its powers should be so broad as to be capable of dealing with novel conditions.” (Citing Bechtel v. Wier, 152 Cal. 443, 446 [93 P. 75, 15 L.R.A.N.S. 549].)
If the plaintiff’s arguments are to prevail the provisions of the Civil Code which have been held to prohibit remedies similar to that which she seeks must be disregarded. However it is urged that the long continued application of the code sections has placed California out of harmony with other states' of the Union; that it permits the husband to desert his family and flee the matrimonial domicile to the haven which the laws of this state afford him; that the wife is put to the election either of never divorcing him in a jurisdiction where she cannot get personal service on him, or of sacrificing the right to alimony however necessitous her circumstances might -be. The answer would seem to be that [522]*522where she is, as here, the actor in the ease she is put to the election of seeking a divorce in a jurisdiction where personal, service on her husband may be obtained or of proceeding in a jurisdiction where subsequent awards of alimony are authorized, such as Massachusetts (Annotated Laws of Massachusetts [1951], vol. 6, p. 484) and New Jersey (New Jersey Rev.Stats. [1937], vol. 1, tit. 2, p. 269). There are states wherein the courts have recognized that when a husband is the actor and has secured a divorce from an absent wife, the latter is permitted to claim alimony in a later suit. (Turner v. Turner, 44 Ala. 437; Davis v. Davis, 70 Colo. 37; Thurston v. Thurston, 58 Minn. 279 [59 N.W. 1017]; Crawford v. Crawford, 158 Miss. 382 [130 So. 688] ; Cox v. Cox, 19 Ohio St. 502 [2 Am.Rep. 415]; Toncray v. Toncray, 123 Tenn. 476 [131 S.W. 977, Ann.Cas. 1912C 284, 34 L.R.A.N.S. 1106].) In Hutton v. Dodge, 58 Utah 228 [198 P. 165], the court allowed a wife to bring a subsequent action for alimony where, in the prior divorce action on constructive service by the wife in that state, the decree specifically provided that it was subject to modification, as to alimony, at any time upon notice of motion by the plaintiff served upon the defendant within the state. Here the plaintiff would distinguish many of the cases (see McFarlane v. McFarlane, 43 Ore. 477 [73 P. 203, 75 P. 139] ; Hall v. Hall, 141 Ga. 361 [80 S.E. 992] ; Darby v. Darby, 152 Tenn. 287 [277 S.W. 894, 42 A.L.R. 1379]; Kelley v. Kelley, 317 Ill. 104 [147 N.E. 659] ; Doeksen v. Doeksen, 202 Iowa 489 [201 N.W. 545], Staub v. Staub, 170 Md. 202 [183 A. 605]) which take a view contrary to her theory of relief on the same basis that she would distinguish Howell v. Howell, supra, 104 Cal. 45, namely, that the wife in those cases attempted to reopen the divorce suit and modify that decree to provide for support rather than bring a new and independent action. However, the court in the Howell ease stated that “after the judgment granting the divorce the plaintiff was no longer the wife of the defendant; and he owed her no longer any marital duty. From that time on she could enforce against him no obligation not imposed by the court at the time of the judgment.” This statement in effect has been repeated many times by the courts of this state.
It is concluded that at the time this action was brought there was no authority in this state supporting the plaintiff’s right to pursue her claim for alimony, either past [523]*523or future; and that appears to be our law at the present time. It may be of interest to note that in 1951 the Legislature enacted the Reciprocal Enforcement of Support Law (Stats. 1951, vol. 1, p. 1906; Code Civ. Proc., § 1650 et seq.). The purposes of that law are “to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” (Code Civ. Proc., § 1651.) Briefly the act provides that a party entitled to support may file a complaint in the court of the county of her residence, naming as defendant the alleged obligor and giving his address in the state having reciprocal legislation. A certificate is transferred to a court in that state which may obtain jurisdiction over the person of the defendant and conduct a hearing. Such a court may then enter an appropriate order commanding the defendant to pay into court the award in favor of the plaintiff. This act did not become effective until after the present action was commenced and it is not claimed that it comes within the provisions of the act. Any further extension of the duties of support is a legislative function. It was so recognized by the 1951 Legislature when it enlarged to some extent the relief theretofore not available under our existing statutes.
There is a further question which involves the distinction between the plaintiff’s alleged claim for support for herself, and support for her minor children. It is the law of this state that a divorced wife who has the custody of minor children may bring an action against the father for their support (Dixon v. Dixon, 216 Cal. 440 [14 P.2d 497] ; Davies v. Fisher, 34 Cal.App. 137 [166 P. 833]). Penal Code, section 270, provides for criminal liability of a father who fails to provide for his minor child; and he is not relieved from that liability “merely because the mother of such child is legally entitled to the custody of such child. ...” Since it applies to a “father of either a legitimate or illegitimate minor child,” the existence of the marital status is not a prerequisite to liability. Civil Code, section 138, as it existed at the time this action was brought, provided that “In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper. ...” Unlike the construction given to those sections of the Civil Code setting forth the rights of the wife to ali[524]*524mony and support (Civ. Code, §§ 136, 137 and 139) this section has long been held to authorize an action for the support and maintenance of the minor children of a marriage although the marriage has been terminated by a divorce decree. (McKay v. McKay, 125 Cal. 65 [57 P. 677].) Civil Code, section 137.1, enacted in 1951 after the complaint herein was filed, provides: “When a father or mother has the duty to provide for the support, maintenance and education of the children of the father and mother and wilfully fails to provide for such support . . ., the father or mother, as the case may be . . . may maintain an action in the superior court against the mother or father ... as the case may be, for the support, maintenance and education of said children.” The effect of this provision does not appear to have been judicially declared. However, it is a legislative enactment of the case law as it existed at the time this action was commenced.
While the plaintiff in this ease may maintain an action for the support of the minor children of the marriage, no case has been referred to where an award for other than future support has been made. In McKay v. McKay, supra, 125 Cal. 65, the court decreed an award against the father for the maintenance and support of the minor children of a marriage previously terminated by divorce, but denied the -wife’s claim for reimbursement for money she had paid out in support of the children prior to any order of the court directing the father to maintain and support the children. The court stated at page 791: “The question of the father’s liability for the care and support of his children after a decree of divorce, in which their custody has been awarded to the mother, has been frequently presented in actions brought therefor by strangers, or by the mother, and the courts have almost invariably held that an action against him to enforce such liability could not be maintained. . . . [Citations.] The jurisdiction which the court retains in the original case, either by express reservation in its decree, or which it has by authority of statute, to modify its judgment with reference to the custody and education of the children, or to make a new order in reference thereto, is not for the purpose of reimbursing her for any expenditures she may have voluntarily made in that behalf, but to provide for such expenses as may be subsequently incurred by reason of the direction that may be given regarding such' care and education.”
[525]*525An action for the future support of minor children is a personal one. Being personal it is transitory. A transitory action may be brought in any state where the defendant can be found. (7 Cal.Jur. 596, and cases cited.) There is therefore no good reason for denying jurisdiction to entertain this action insofar as it relates to the future support of the minor children. The trial court has that jurisdiction. The question then is whether it has been properly exercised.
The court found that at the times involved the defendant was a strong, healthy and able-bodied man; that “without justification or legitimate excuse,” he has wilfully and deliberately abstained from reasonable efforts to obtain gainful employment, and that he has earned, and is capable of earning, from five hundred dollars to one thousand dollars per month.
It is the defendant’s contention that the foregoing findings are not supported by any substantial evidence in the record. With this contention we must agree. The undisputed evidence is that the defendant has no income and no assets; that he is and has been since the divorce in ill health and dependent on an aunt for support; that the only business in which he has been gainfully employed and experienced is the shipping business; that his employment in that business was lost to him without his fault, and that he has since sought employment without success. There is no evidence to contradict the defendant’s statement that he has been and is in ill health, is dependent on an aunt for support, and is incapable of making a living. The finding is without sufficient evidentiary support.
The defendant sought by cross-complaint to have it adjudged that certain real and personal property held in the plaintiff’s name was possessed by her in trust for the defendant. In the main this property consisted of a country estate in Connecticut of approximately 156 acres, including a 13-room home, an 8-room guest house, cabana house, three car garage, 10 other garages, kennels, barns, a silo, shops, and other appurtenances and equipment. The property was alleged to have a value in excess of $75,000. Admittedly all of it was purchased with money belonging to the defendant. After the parties separated the plaintiff continued to live at the family home and eventually disposed of all of the property. At the time of the trial she still had $12,000 of the proceeds of the sale of the property. It is the plaintiff’s contention that she acquired the major portion of the property by gift [526]*526from the defendant, and the remainder was necessarily sold to meet the defendant’s obligations. It is the defendant’s position that the parties never intended that transfers of the property to the plaintiff were to be absolute. On sharply conflicting but substantial evidence the trial court made findings in accordance with the plaintiff’s contentions with respect to the question of the execution and finality of the gifts and the disposition of the other property involved. Upon these findings the trial court properly concluded that the defendant take nothing by his cross-complaint.
The judgment for the plaintiff on the cross-complaint is affirmed. In -all other respects the judgment and the order are reversed; neither party to recover costs on appeal.
Edmonds, J., Carter, J., and Spence, J., concurred.