Grubaugh v. Grubaugh

SHEPARD, J.

This is an appeal by defendant, Jerry Grubaugh, Jr., from an order of the Orange County Superior Court denying his motion to terminate alimony.

Facts

On November 6, 1958, plaintiff filed her complaint for annulment, charging that, at the time of her marriage to defendant on July 11, 1953, defendant had another wife living. On December 11, 1958, the parties executed a written property settlement which, in addition to setting aside certain specific property to each, provided for payment to plaintiff of the sum of $50 per month, “until further order of Court or until Wife should remarry or until the Wife gains employment, at which time, said payments shall cease. ’ ’ A decree of annulment was granted to plaintiff on December 17, 1958. It provided,

inter alia,

that “The property settlement agreement of the parties ... is hereby approved and incorporated herein, and the parties are ordered to carry out the executory provisions thereof.” Certain provisions for support of children are not in issue, defendant now having their custody.

On October 7, 1960, defendant moved the court for an order terminating the payment of $50 per month, on the ground that plaintiff was employed. After the hearing the trial court wrote an extended memo opinion discussing the question of jurisdiction of the court to grant “alimony” in an annulment case. In concluding its opinion it'stated:

‘ ‘ The court lacks jurisdiction to grant the motion. . . . This writer believes that it would have terminated the alimony if it had jurisdiction on the basis that although the plaintiff may not have been employed, she could be estopped from asserting such a position.

“The clerk is directed to enter a Minute Order denying the Motion for the defendant for an order terminating alimony. ’ ’

[10]

Appeal Not Moot

Both counsel have informed this court that plaintiff has remarried. Plaintiff contends this appeal is now moot because both parties concede that the $50 permanent support payments have terminated because of the remarriage. Defendant rejects this conclusion because the monthly payments after plaintiff is alleged to have acquired employment and before she remarried are still in dispute. We have concluded that defendant’s position is correct, that the appeal does affect some payments and that therefore we are required to decide the primary dispute, which is whether or not the trial court had jurisdiction to pass on the factual question of whether plaintiff had acquired employment within the meaning of the decree and to terminate the support payments if it found this to be true.