Kroupa v. Kroupa

California Court of Appeal May 4, 1949 No. Civ. 13618, 13624Published

Before: Dooling

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Holding. The court held that a divorce decree's alimony award is subject to modification under Civil Code section 139 based on changed circumstances, even if the original decree was taken by default and the requested increase exceeds the amount originally prayed for in the complaint.

Issues

Whether Code of Civil Procedure section 580 limits the court's jurisdiction to modify alimony awards in default divorce cases to the amount originally prayed for in the complaint.
Whether an alimony award based on an agreement between parties is subject to judicial modification.

Disposition. Reversed in part and affirmed in part.

Quotations verified verbatim against the opinion

“The provision for modification in the last clause quoted gives the divorce court generally the power to increase or decrease the alimony allowed in the decree of divorce upon a showing of changed circumstances sufficient to justify such modification.”

“An agreement solely for the payment of alimony is subject to modification by the trial court both in the decree and afterwards.”

DOOLING, J.

Two appeals are herein presented, the first by Hazel M. Kroupa from an order of the superior court denying her application for an increase of alimony, and the second by Richard W. Kroupa, from a subsequent order directing him to pay Hazel M. Kroupa $250 for attorneys’ fees to prosecute the first appeal plus the necessary costs of that appeal. The parties will hereafter be referred to as plaintiff and defendant.

Plaintiff on May 25, 1944, filed a complaint for divorce from defendant. On June 8,1944, an answer signed in propria persona by defendant was filed, denying only the alleged grounds for divorce, and on June 9, 1944, a written stipulation was filed that the cause might be set for trial on the uncontested calendar and waiving notice of time of trial, findings of fact and conclusions of law. The complaint prayed

[649]

for $75 per month alimony. On June 10, 1944, an interlocutory decree of divorce was entered which recites that defendant appeared in propria persona but offered no evidence. This decree provides for $75 per month as alimony and the same provision was carried into the final decree of divorce.

The motion for an increase of alimony was made on August 13, 1946, and was supported by plaintiff’s affidavit showing a change in circumstances both in the increase of defendant’s earnings and of plaintiff’s necessities.

The trial court treated the divorce decree as one taken by default and held that since the complaint prayed for alimony at the rate of $75 per month the court was without jurisdiction to amend the judgment to allow more. Whether, under the facts recited, the decree was in fact a default decree need not, as we view the law, be decided.

Defendant relies upon Code of Civil Procedure, section 580:

“The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint. ...”

Our case technically does not fall under this provision for here there was an answer, but treating the case as one in which there was no answer defendant is confronted with another code provision, Civil Code, section 139, reading, so far as here material:

Kroupa v. Kroupa

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DOOLING, J.

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