Chernow v. Chernow

VALLÉE,

J.

Appeal by defendant from that part of an interlocutory judgment of divorce which orders him to pay plaintiff’s attorney’s fees.

The complaint, filed October 1, 1952, did not allege that plaintiff had been a resident of the state one year and of the county of Los Angeles three months next preceding the commencement of the action. (Civ. Code, § 128.) On October 22, 1952, on the hearing of an order to show cause, defendant was ordered to pay $1,000 on account of attorney’s fees to plaintiff’s attorneys, the balance, if any, to be fixed at the time of trial. The cause went to trial on July 27, 1953. At the time of trial $203.96 of the $1,000 was unpaid. On July 31, 1953, at the close of the trial, the complaint was amended to allege residence.

Plaintiff was granted an interlocutory judgment of divorce on September 4, 1953. The judgment ordered defendant to pay to the attorneys for plaintiff as attorney’s fees the balance of $203.96 and an additional $750.

[818]

Defendant contends that an allegation of residence is jurisdictional ; the order of October 22, 1952, is void; the amendment of July 31, 1953, did not relate back to the date of the filing of the complaint; the award of the additional $750 was for past services and unauthorized because of the invalidity of the order of October 22, 1952. We have concluded that defendant’s contentions cannot be sustained.

The requirement of section 128 of the Civil Code that a complaint for divorce allege residence is mandatory but it is not jurisdictional. Failure to comply with the mandate of the section is nothing more than error in the exercise of jurisdiction. Such failure does not result in any limitation of, or otherwise affect, the jurisdiction of the court.

(DeYoung

v.

DeYoung,

27 Cal.2d 521, 526 [165 P.2d 457];

Kelsey

v.

Miller,

203 Cal. 61, 88 [263 P. 200];