Schwartz v. Schwartz

California Court of Appeal May 28, 1946 No. Civ. 15238Published

Before: Doran

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Holding. The trial court erred in granting a judgment on the pleadings because the plaintiff's complaint stated a valid cause of action, and a motion for judgment on the pleadings cannot rely on matters outside the complaint.

Issues

Whether a trial court may grant a judgment on the pleadings based on the defense of recrimination when the complaint otherwise states a cause of action.
Whether a motion for judgment on the pleadings allows the court to consider matters outside the complaint.

Disposition. reversed

Quotations verified verbatim against the opinion

“it was error for the court to grant the defendant’s motion for a judgment on the pleadings.”

“Upon such a motion, “the court cannot consider any matter outside of the complaint, or any defense thereto in the answer”

“There can be no question that all of the facts stated in the complaint in the within action state a cause of action.”

DORAN, J.

This is an appeal from a judgment on the pleadings in an action for divorce.

The complaint by the husband is in the usual form and based on extreme cruelty. No specific dates are alleged. The answer is a general denial. A separate defense is also alleged setting forth the fact that several years before, the wife had filed an action for separate maintenance in which the husband had answered and, in a cross-complaint, had sought a divorce on the grounds of extreme cruelty; that the wife had prevailed in said action and that “said judgment among other things ordered and adjudged and decreed that said David

[712]

Schwartz take nothing by his cross-complaint for divorce.” No affirmative relief, admissible in such circumstances, is sought by the answer in the within action. The plaintiff filed what is entitled, “Answer to Cross-Complaint” wherein it is alleged that the course of conduct on the part of defendant wife, which constituted extreme cruelty, occurred since the entry of the judgment in the former action. Technically, the so-called “Answer to Cross-Complaint,” is surplusage and out of place in the pleadings; there is no cross-complaint.

Shortly after the trial commenced and while the plaintiff was on the stand the court commented as follows:

“That brings a question up that I wondered about as I read the pleadings. Now, you have a separation decree; you have not filed any action to change the award that is fixed by that decree. Here you are defending an action for divorce, and I have found nothing further than affirmative defenses and denials in the Answer that has been filed.”

And later continued,

“Now during the recess the Court called counsel’s attention to the fact that it appears from the Answer of the defendant, and the Answer to that, which is headed ‘Answer to “Cross-Complaint,” ’ by plaintiff, and by the statement of counsel here, that this defendant was granted separate maintenance by Judge Kincaid; and it must have been because the plaintiff—this plaintiff—had been guilty of acts which constituted ground for divorce; and the plaintiff in that action did not seek the divorce but only separate maintenance. It therefore having been pleaded, and being an established fact, that it establishes recrimination in so far as

Schwartz v. Schwartz

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DORAN, J.

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