Heller v. Heller

WOOD, J.

The complaint for divorce herein, alleging extreme cruelty in general terms, was filed on July 19, 1947. A demurrer which specified, among other things, that the complaint was uncertain was sustained on July 29, 1947, with leave to amend within 15 days. At the time the complaint was filed, an order was issued requiring the defendant to show cause on August 4th why he should not pay reasonable sums for attorney’s fees, costs, and support of plaintiff and a child during the pendency of the action. When the order to show cause came on for hearing on August 4th, the time allowed for amending the complaint had not expired, and the complaint had not been amended. Upon said hearing, the court ordered, in part, that defendant pay $500 as attorney’s fees, $25 as costs, and $60 per week for the support of plaintiff and the child. The defendant appeals from that order.

Appellant contends that the court erred in making said award for the reason that there was no prima facie showing of a cause of action, either by the pleadings or by the evidence. He argues that, since his demurrer had been sustained and the complaint had not been amended, there was no showing by the complaint that the plaintiff had a cause of action. Section 426b of the Code of Civil Procedure provides that:

[605]

“In an action for a divorce, it is not necessary, in the absence of a demurrer for uncertainty, to plead specific acts constituting cruelty in order to plead a cause of action.” In

LaMar

v.

LaMar,

30 Cal.2d 898, it is said at page 902 [186 P.2d 678]; “ [I]n the absence of a demurrer for uncertainty a cause of action for extreme cruelty is properly stated by pleading cruelty in general terms.” It appears therefore that if a complaint for divorce on the ground of extreme cruelty is stated in general terms, and if a demurrer for uncertainty is sustained, it is then necessary, in order to state a cause of action, to plead specific acts constituting cruelty. In other words, it appears that the sustaining of a demurrer for uncertainty, under such circumstances, is equivalent to sustaining a demurrer on the ground that no cause of action has been stated (with leave to amend). In view of the language of said section 426b, an unusual situation in pleading is presented here—that is, the complaint stated a cause of action when it was filed, but after the demurrer for uncertainty was sustained the complaint did not state a cause of action. In other words, the result is that the complaint does not state a cause of action because it is uncertain. It was not necessary, however, as a condition precedent to mating such an award, that the complaint state a cause of action. When an action for divorce is pending the court may require the payment of alimony, attorney’s fees, and costs. (Civ. Code, § 137.) “The fact that a demurrer has been sustained to a complaint does not render the action one no longer pending. Where upon such a ruling, leave is given to file an amended complaint within a designated time, and the time has not expired, the action is still pending in the court that sustained the demurrer, although no amended complaint has been filed.”