Douglas v. Superior Court

California Court of Appeal Jul 10, 1956 No. Civ. 21825Published

Before: Nourse (Paul)

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Holding. The court held that an order for alimony pendente lite constitutes an independent judgment that survives the dismissal of the underlying action, and therefore the trial court retains jurisdiction to issue a writ of execution for unpaid alimony.

Issues

Whether a prior writ of prohibition issued in favor of other parties bars proceedings against the current petitioner.
Whether the dismissal of an action under Code of Civil Procedure section 583 divests the court of jurisdiction to enforce a prior order for alimony pendente lite.

Disposition. denied

Quotations verified verbatim against the opinion

“An order for the payment of alimony pendente lite “is to all legal intents and purposes a judgment” and the application for such an order, while not a separate action, is a proceeding for a separate judgment independent of the final judgment”

“the dismissal of the action or a judgment upon the merits in favor of the party against whom the order is made does not vacate that judgment but only terminates the right to alimony awarded by it.”

NOURSE (Paul), J. pro tem.

Petitioner is the plaintiff and cross-defendant in an action for divorce commenced by him in April, 1944.

On June 1, 1944, his wife filed an answer and cross-complaint in which she named as cross-defendants petitioner and Edwin S. Douglas, Jr. On October 30, 1944, the respondent court made and entered an order requiring petitioner to pay to his wife as defendant and cross-complainant the

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sum of $250 per month as alimony pendente lite. On March 21, 1946, the cross-complainant filed what she entitled a supplemental cross-complaint naming as cross-defendants one Grace Kunkle; Telegraph Delivery Service, a corporation; Edwin S. Douglas, Jr.; and petitioner. On July 5, 1949, the court of its own motion dismissed the plaintiff’s action pursuant to the provisions of section 583, Code of Civil Procedure. On July 7, 1949, the court dismissed the cross-complaint hut denied petitioner’s motion to dismiss cross-complainant’s action, and proceeded to try the case upon the supplemental cross-complaint.

After the cause was submitted a mistrial was declared. Thereupon the cross-defendants other than petitioner here applied to this court for a writ of prohibition to restrain the court from taking any further proceedings against them, contending that the court was without jurisdiction and had abused its discretion in denying their motion to dismiss the action. On November 2, 1949, this court granted a peremptory writ of prohibition.

The writ that issued, so far as pertinent here, reads: “The People of the State of California to the Superior Court in and for the County of Los Angeles, and to the Honorable Clarence L. Kincaid, Judge thereof, Greeting:

“. . . we do command you . . . that you absolutely desist and refrain from taking any further proceedings against or making any orders affecting

petitioners herein

in the above entitled proceedings. ...” [Emphasis added.]

No order has been made dismissing the supplemental cross-complaint, although undoubtedly petitioner is entitled to have it dismissed.

Douglas v. Superior Court

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