Molema v. Molema

NOURSE, J.

Plaintiff appeals from an order annulling portions of decrees of divorce awarding her alimony.

On May 28, 1914, the plaintiff was awarded an interlocutory decree of divorce from the defendant upon grounds of cruelty. The complaint for divorce pleaded the ownership of two parcels of property, one of which was alleged to be community property, and the other was alleged to be the separate property of the wife, and also alleged defendant’s ability to pay alimony. The decree made no disposition of the community property but cleared plaintiff’s title to the parcel claimed as her separate property, and awarded her alimony in the sum of $25 a month. This sum was paid more or less irregularly until August, 1927, when, defendant being $225 in arrears, he was cited to appear in contempt proceedings. He thereupon gave notice of motion to strike from the decrees the provisions relating to alimony. This motion was based upon three grounds: inadvertence, that defendant, was then unable to make the payments, and that plaintiff does not require the same. The motion was heard at the same time as the order to show cause. The trial court found that defendant was delinquent to the extent of $200. This finding was manifestly a clerical error because it was stipulated in open court that the amount in arrears was $225. The trial court then entered its judgment reading as follows: “It is ordered, adjudged and decreed that the motion of said defendant to elimináte from said decrees so much thereof as requires him to pay plaintiff the sum of $25 per month be, and the same is hereby granted, and said interlocutory and final decrees are hereby amended by striking therefrom such requirement.” The appeal is from this order.

Appellant claims the order was beyond the jurisdiction of the court because it in terms undertook to change the wording of the original interlocutory and final decrees of divorce instead of making and ordering a proper modification as of the date of the motion.

(Soule

v.

Soule,

4 Cal. App. 106 [87 Pac. 205];

Howell

v.

Howell,

104 Cal. 45 [43 Am. St. Rep. 70, 37 Pac. 770];

Cohn

v. Cohn, 150 Cal,