Miller v. Miller

STEPHENS (Jess E.), J. pro tem.

This is an appeal by defendant from that portion of an interlocutory decree of divorce which provides as follows: “It is further ordered and adjudged that defendant keep up the $5,000 insurance policy now in effect in favor of the minor child of the parties hereto and pay the premiums regularly, as security for of the minor as herein ordered.” A separate appeal was also taken from the action of the trial court in adding the last ten words of the above, to wit: “as security for support of the minor as herein ordered.” This was done “by the court’s own motion” some twenty-four days after the judgment had been signed and docketed. It is contended that the addition of these words did not constitute a correction of a clerical error nor action to make the decree speak the truth of the court’s determination at the time of the making of the decree, and that therefore the court was without to so alter the decree.

Counsel for respondent, upon the oral argument, concedes that this latter appeal is well taken, but contends that the words so added neither aid nor detract from the decree, which he contends is valid. He points out that the trial court in a divorce action has broad powers; that the appeal is on the judgment roll alone and therefore there is nothing to show that defendant did not stipulate to the above provision, and that if he did he would not now be in a position to complain. It is neither contended nor conceded that any such stipulation was in fact made.

The jurisdiction of the court cannot be based upon stipulation of the parties, whether such stipulation be in fact or fancy. ‘ ‘ The authority of the court, in actions for divorce, to transfer the property of either party to the other, or other

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wise to dispose of it, is purely statutory. ...” (Simpson v. Simpson, 80 Cal. 237, 241 [22 Pac. 167].)

The authority for the court’s action in ordering appellant to keep up the insurance policy, payable to the minor in the event of appellant’s death, must be found, if at all, in Civil Code sections 139 and 140, which read:

“139. Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and 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.