Gerardo v. Gerardo

California Court of Appeal Nov 25, 1952 No. Civ. 4454Published

Before: Griffin

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Holding. The court held that a trial court cannot grant relief exceeding the scope of the original complaint after a default has been entered, and that substantive amendments to a complaint require service upon the defaulting defendant.

Issues

Whether a trial court may amend a complaint in matters of substance after default without serving the defendant.
Whether a court may grant relief in a default judgment that exceeds the scope of the original pleadings and prayer for relief.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is well established law that where, after the default of a defendant has been entered, the complaint is amended in matters of substance as distinguished from mere matters of form, the amendment opens the default”

“The portion of the judgment awarding the property mentioned to plaintiff, under the pleadings as framed, is not supported by the evidence and must be reversed.”

GRIFFIN, J.

Plaintiff husband filed an action for divorce against defendant wife, alleging cruelty. He particularly alleged that there was no community property and so testified at the hearing. After an amendment by interlineation by the court, as hereinafter indicated, the complaint recited that the minor child, aged about two years,

“. . . is now in the custody of the defendant and: that is and view e# the tender age ef said child, it appears to be for be placed his best interest and welfare to remáis in the custody of plaintiff defendant defendant for the time being, subject to the right of plaintiff to visit said child and have said child with him at reasonable times.”

Plaintiff then prayed that the custody and control of the plaintiff minor child “be awarded to defendant, with right of reasonable visitation and temporary custody from time to time re-defendant served to p-l-aintiff. ’ ’

There is no prayer for an award of any property and no allegation that either party was or was not a fit and proper person to have custody of the child.

Defendant was duly served with process and a copy of the complaint as originally drawn. Apparently, being satisfied that plaintiff should obtain a divorce and that the custody of the child be awarded to her as prayed for therein, she defaulted. At the hearing, defendant not being present, testimony was taken. The evidence disclosed that defendant had two other children prior to her marriage to plaintiff (claimed by plaintiff to have been born out of wedlock), and that those children were awarded to the juvenile court.

Plaintiff testified that he was receiving total disability benefits from the government amounting to $85.52 per month and that it was sending $32 of that amount to defendant for the support of the child; that prior to the separation plaintiff’s wife worked and he cared for the child at times. When asked by the court if he could take care of it plaintiff answered: “That is up to you if you want me to have it,” that he would live with his mother and stepfather in

[373]

Casa Blanca and she “cook pretty well”; that defendant did not have a father or mother living here.

Gerardo v. Gerardo

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GRIFFIN, J.

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