Fry v. Fry

Opinion

LILLIE, Acting P. J.

An interlocutory judgment of divorce, entered January 2, 1965, provided that defendant pay support of $100 per month for each of two minor children and alimony of $25 per month, the amount to be increased to $75 per month upon termination of support payments for the first child and to $125 per month upon termination of support of both children. On December 2, 1965, a final judgment of divorce was entered; 30 days thereafter plaintiff married Jerome Palumbo. The Palumbo marriage was annulled on October 28, 1966, on the ground that he had another wife living, the trial judge finding the marriage void (Civ. Code, § 82, subd. Two) from the beginning. On October 3, 1968, plaintiff filed an order to show cause seeking an increase in alimony. It is from an order dismissing the order to show cause plaintiff appeals.

The sole question is whether the Palumbo marriage, declared void by the court (No. D 691562), extinguished plaintiff’s right to further alimony under the Fry divorce decree.

The interlocutory decree specifically states that alimony .shall continue until plaintiff dies, remarries or until further order of court. Section 139, CiviVCode, provides that except as otherwise agreed by the parties in writing the obligation of any parly in any decree for the support and_ maintenance of the other “shall terminate upon the death of the obligor or upon the remarriage of the other party.” Appellant’s position is that a void marriage is not a “remarriage” within the meaning of the foregoing. Relying upon dictum in

Sefton

v.

Sefton,

45 Cal.2d 872 [291 P.2d 439], and

Husted

v.

Husted,

222 Cal.App.2d 50 [35 Cal.Rptr. 698], both involving voidable

[171]

marriages, she asks this court to reject the subsequent clear holding of

Berkely

v.