Pelser v. Pelser

MONROE, J. pro tem.

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In 1950 the plaintiff and respondent obtained an interlocutory divorce from Charles Pelser. The decree, pursuant to a property settlement agreement, provided for payments of $35 per month to apply on payments upon the residence and for $200 per month commencing April 10, 1950, which latter payments were apportioned $65 for the support of plaintiff and $135 for the support of the two minor children. It was provided that the payments to plaintiff should be made “until her death or remarriage,” and the payments for the support of the children “until said children shall become of age, marry or become self-supporting.” A final decree of divorce was entered on June 8, 1951.

On November 8, 1957, Charles Pelser died. At the time of his death he was in arrears in the payments provided by the decree for child support and alimony. In February 1958 one of the sons became of age. The plaintiff did not remarry.

On July 25, 1958, Lou Pelser was appointed administratrix with the will annexed of the estate of Charles Pelser. It appears from the stipulation of facts that no creditor’s claim for accrued installments or for future payments of

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alimony or child support was filed in the estate matter within the time allowed by law.

On March 4, 1959, the court granted the motion of the plaintiff to substitute the administratrix of decedent in the divorce action in place of decedent. This motion was granted over the opposition of the administratrix and this appeal is taken from the court’s order.

It is conceded by the parties that the order of substitution constitutes a special order made after the final judgment and is therefore an appealable order pursuant to section 963, subdivision 2 of the Code of Civil Procedure.

The appellant contends that the death of a party to a divorce action terminates the liability and the jurisdiction of the court to proceed in that action; that the liability for support does not survive; and that the order for substitution was improper for the reason that no creditor’s claim was filed against the estate of the deceased.

It is the general rule that liability for support of a wife or children terminates upon the death of the husband or father. It is held, however, that the parties may, by an agreement, provide that the liability for support may continue during the lifetime of the wife and, by a proper agreement, may extend beyond the death of the husband. In such case, the provisions of the agreement may be incorporated in an interlocutory decree of divorce and liability for such support, either upon the judgment or upon the agreement or upon both, is a proper basis for a claim against the estate of the decedent.