Eddy v. Eddy

MOORE, P. J.

The question for decision is whether that part of an interlocutory decree awarding plaintiff $100 per month is erroneous, in view of the absence from the prayer of the complaint of any demand for support money.

The appeal comes here on the judgment roll. The only documents contained are the following: (1) demurrer to complaint; (2) stipulation that the original complaint be withdrawn and the amended complaint filed; (3) the amended complaint; (4) order for default; (5) minute order for judgment; (6) interlocutory decree; (7) notice of appeal; (8) request for transcript.

The amended complaint is in the usual form for a divorce action based upon extreme cruelty. Paragraph seven alleges “that a property settlement has heretofore been made affecting the community property of the parties for the support and maintenance of the plaintiff, including her attorney’s fees.”

While the prayer asks that the property settlement be approved by the court, that document neither appears nor does

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the judgment in terms approve it. After awarding plaintiff the custody of the minor child the decree proceeds: “Defendant ordered ... to pay plaintiff $100 per month.”

Such order is clearly contrary to section 580, Code of Civil Procedure, which forbids the granting of relief in excess of that demanded, if there be no answer. The validity of such an order was before this court in the case of

Darsie

v.

Darsie,

49 Cal.App.2d 491 [122 P.2d 64]. In that action the steps taken, the absence of a demand for support money, the default, the order for monthly payments in the decree, parallel the events of the instant case. We there held that where the prayer of the complaint makes no demand on the defendant for support and the default is duly entered, it is error for the trial court to make an award for such purpose. That decision followed

Bennett

v.