Young v. Young

Opinion

CHRISTIAN, J.

John Young appeals from an order vacating a previous order which had reduced alimony payable to his former wife, respondent Mary Young. The question is whether the court had jurisdiction to make the prior order.

In 1955 appellant obtained an interlocutory decree of divorce from respondent on the ground of incurable insanity. In 1958, the decree was modified on motion of respondent, who apparently had been discharged after treatment in a state hospital; appellant was ordered to pay $75 per month alimony. Alimony was later increased to $125 per month.

Appellant made the monthly payments until August 1965, when respondent was again committed to a state hospital. In June 1966, when an alimony arrearage of $1,250 had accrued, appellant moved “to enter satisfaction of judgment and to modify alimony.” Appellant sought to satisfy the amount already owing by paying $625 to the Department of Mental Hygiene and to reduce future alimony payments to $30 a month, payable to the department. In a supporting declaration, appellant stated that the department had agreed to accept $625 as satisfaction for all existing claims of the state for respondent’s care and to accept $30 per month for the cost of future care. Notice of the motion was served on the Department of Mental Hygiene, but not on respondent or her attorney. On July 15, 1966, the motion was granted at a hearing at which neither the department nor respondent appeared. In November 1968, respondent, having learned of the July 1966 order, moved to set it aside on the ground that it was void for lack of jurisdiction over her. The motion was at first denied, but on renewal it was granted. The present appeal followed.

Under former Civil Code section 147 (now Civ. Code, § 4809), an order for support may not be modified after a final judgment of divorce, “unless any prior notice otherwise required to be given to a party to the action be served, in such manner as such notice is otherwise permitted by law to be served, upon the party himself. For such purpose service upon the attorney of record shall not be sufficient.” Respondent was not served with notice of the motion to modify support payments; therefore the court

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had no jurisdiction to modify payments. There was no appearance by respondent or her attorney so as to waive the notice requirement. (Cf.