CARTER, J. I dissent. This proceeding in prohibition tests the question whether a trial oourt has jurisdiction to enter in a separate maintenance action a decree which finally and conclusively adjusts the property rights of the spouses and is not subject to modification upon a showing of changed circumstances.
Here the trial court entered a decree of separate maintenance which contains no reservation of jurisdiction as to property rights or otherwise, and which purports to be a final decree and to fully and forever settle the reciprocal rights and obligations of the parties. It makes provision for support of a minor child; it awards to the wife as her sole and separate property the family home, with all furniture, furnishings, and equipment therein; it awards to her the specific amount of $250 a month to be paid by the husband for twenty-seven months commencing on a specified date, and certain insurance which is to be kept in force by the husband for her benefit and that of the child; it awards the husband, as his sole and separate property, a certain automobile, bank funds, tax bonds, and war savings bonds.
Were such a decree entered in a divorce action, it would be final and the writ of prohibition would Me to restrain a hearing in modification proceedings (Tolle v. Superior Court, 10 Cal.2d 95 [73 P.2d 607]). (See, also, Puckett v. Puckett, 21 Cal.2d 833 [136 P.2d 1], and review of authority therein; Long v. Long, 17 Cal.2d 409 [110 P.2d 383]; McClure v. McClure, 4 Cal.2d 356 [49 P.2d 584, 100 A.L.R. 1257]; Harlam v. Harlan, 154 Cal. 341 [98 P. 32] ; White v. White, 130 Cal. 597 [62 P. 1062, 80 Am.St.Rep. 150] ; McKay v. McKay, 125 Cal. 65 [57 P. 677]; O’Brien v. O’Brien, 124 Cal. 422 [57 P. 225]; Greer v. Greer, 31 Cal.App.2d 39 [87 P.2d 388].) The same would be true if the parties, under similar circumstances, had voluntarily entered into a property settlement agreement [433]which was fair and equitable at the time it was made. (See 13 Cal.Jur. §§45, 46, pp. 846-847.) The “utmost freedom of contract respecting property exists in California between husband and wife.” (13 Cal.Jur. § 45, p. 847; Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, 719 [103 P. 190] ; Civ. Code, §§ 158, 159.) It is contended, however, that in the ease of a separate maintenance decree, a different rule applies, and that such a decree is always subject to modification upon a showing of changed circumstances. Many general statements of this rule may be cited. (42 C.J.S. §§ 626, 627, pp. 270 et seq.; 27 Am. Jur. §428, p. 33; 3 Nelson on Divorce and Annulment (2d ed.) § 32.44, p. 414; 71 A.L.R. 724; 127 A.L.R. 741.)
In California section 137 of the Civil Code provides that “The court, in granting the husband or wife permanent support and maintenance of himself or herself, . . . shall make the same disposition of the community property .and of the homestead, if any, as would have been made if the marriage had been dissolved. . . . The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered or revoked at the discretion of the court.”
A similar section with respect to divorce (Civ. Code, § 139), provides 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, during her life or for a shorter period as the court may deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects. ’ ’
Since the latter section has been construed to permit the entry in a divorce action of a final adjudication of property rights (cases above cited), it would seem by analogy that section 137 should be subjected to a similar construction. No California case has been found which expressly holds otherwise, but there are a number of cases in which modifications have been approved, and in them, as well as in the California text (1 Cal.Jur. § 87, pp. 1037-1038), there are general statements to the effect that separate maintenance decrees may be modified upon a proper showing. In none of these eases is the question directly presented or is it expressly declared that the court lacks jurisdiction to enter a final decree, which is not subject to modification, in a separate maintenance suit.
[434]In 0’Toole v. O’Toole, 215 Cal. 441 [10 P.2d 461], a monthly allowance was decreed “until the further order of court,” and under this reservation of jurisdiction, proceedings were entertained for the purpose of determining whether changed circumstances warranted a modification. Booth v. Booth, 100 Cal.App. 28 [279 P. 458], is an appeal from an original decree, as is Parker v. Parker, 74 Cal.App. 646 [241 P. 581]. In Smith v. Smith, 113 Cal. 268 [45 P. 332], a modification was denied.
One theory advanced in support of the position that the court is powerless to make a final adjudication in a separate maintenance suit is that responsibility for support of the wife rests upon the husband so long as the marital status endures and, as a matter of public policy, no termination of her allowance should be countenanced which might leave her indigent and dependent upon the state for support. This theory, however, ignores entirely the rights of husband and wife who have separated, to settle their property rights and obligations by contract. Furthermore, so far as the possibility of a helpless spouse being thrown upon the state for support is concerned, there is little difference between termination of an allowance by final decree of separate maintenance and termination by final decree of divorce. In both cases the right to support arose out of the marriage obligation (Civ. Code, § 155), and is enforcible to the full extent of that obligation as adjudicated by the court.
In other words, the right to support is not measured by the continuance of the marital status. It is but an incident of that status and may be settled or litigated independently of it. The view that so long as the parties are married, the court is powerless to finally adjudicate the right to support, gives rise to the correlative view that once the marriage has been severed by divorce, the right to support ceases even though it may not have been litigated in the divorce proceeding. The evil and injustice which result from adherence to this view under present social conditions are shown in the dissenting opinion of Mr. Justice Schauer in the recent case of Crouch v. Crouch, ante pp. 243, 262 [169 P.2d 897] in which I concurred. (See, also, concurring opinion in DeYoung v. DeYoung, 27 Cal.2d 521, 527 [165 P.2d 457].) The only logical conclusions, in my opinion, is that the right to support, which is an incident to the marriage relation, may be litigated finally and conclusively either during the existence of the marriage or [435]after it has been severed; that sections 137 and 139 of the Civil Code are analogous and should be similarly construed; that under such a construction, the decree here involved must be held to be final; and that writ of prohibition will lie.
Schauer, J., concurred.
Petitioner’s application for a rehearing was denied July 24, 1946. Carter, J., and Schauer, J., voted for a rehearing.