Salvato v. Salvato

VAN DYKE, P. J.

This is a judgment roll appeal from that portion of an interlocutory decree of divorce which awarded respondent $50 a month alimony.

Appellant brought this action for divorce on the ground of extreme cruelty. Respondent filed a cross-complaint alleging cruelty on the part of appellant and praying for separate maintenance. The trial court expressly found that each of the parties was guilty of extreme cruelty toward the other and granted appellant an interlocutory decree of divorce but awarded alimony to respondent.

Appellant contends that when a divorce was granted to appellant the court then lacked power under any circumstances to order permanent alimony paid to respondent, saying such an order is prohibited by Civil Code section 139, which in material part reads as follows:

“In any interlocutory or final decree of divorce or in any final judgment or decree in an action for separate maintenance, the court may compel the party against whom the decree or judgment is granted to make such suitable allowance for support and maintenance of the other party for his or her life, . . . .”

Appellant cites and relies on such cases as

Lampson

v.

Lampson,

171 Cal. 332 [153 P. 238], and

In re McKenna,

116 Cal.App. 232 [2 P.2d 429], From

McKenna

he quotes the following:

“. . . The court was without jurisdiction to grant permanent support to the wife by reason of the fact that the divorce was not granted to her, but was granted to her husband for her fault, . . . .”

[871]

We think, however, the quoted holding is too broad and that under the findings here the court had power to make the order it did.

In