Harwell v. Harwell

MARKS, J.

This is an appeal from a judgment entered after a demurrer to plaintiff’s second amended complaint had been sustained without leave to amend.

Plaintiff brought this action to set aside and vacate an interlocutory decree which gave her husband, Randle 0. Harwell, a divorce on the ground of desertion and awarded her permanent support in the sum of $60 per month. The sole ground for setting aside the interlocutory decree, attempted to be stated in the second amended complaint, is mistake of law on the part of her attorney and of the trial judge who presided over the trial of the divorce action in granting alimony to a wife when her husband had been given an interlocutory decree of divorce because of desertion on her part. It is not suggested that there was any lack of jurisdiction of the divorce court or that the evidence failed to support the findings as to the desertion by the wife. There is no intimation of fraud or mistake on this phase of the case.

It is admitted that an innocent husband who is given a divorce from a guilty wife because of her desertion cannot be compelled to pay her permanent support money after the divorce. If the interlocutory decree attempts to award the guilty wife support money that portion of it is void.

(Lampson

v.

Lampson,

171 Cal. 332 [153 Pac. 238];

Johnson

v.

Johnson,

104 Cal. App. 283 [285 Pac. 902];

Johnson

v.

Superior Court,

128 Cal. App. 584 [17 Pac. (2d) 1055];

Schluter

v.

Schluter,

130 Cal. App. 780 [20 Pac. (2d) 723];

Gaudio

v.

Gaudio,

138 Cal. App. 289 [32 Pac. (2d) 156].)