Mathews v. Mathews

NOURSE, J.

This is an appeal from a special order made after final judgment modifying the provisions of an interlocutory decree of divorce respecting the payment of alimony. The case was before the first division of this court on a former appeal.

(Mathews

v.

Mathews,

49 Cal. App. 497 [193 Pac. 586].) The order there under consideration modified the interlocutory decree on the ground that the final decree did not contain any direction as to the payment of alimony. The court held that this ground was not sufficient to warrant the modification of the decree and the order was, therefore, reversed. A new motion was thereafter made on the ground that the financial circumstances and' conditions of both plaintiff and defendant had materially changed since the entry of the interlocutory decree, and that it was not necessary or equitable for the defendant to be required to continue to pay to plaintiff the alimony awarded in the interlocutory decree.

[1]

Prior to the trial of the action the parties stipulated that the sum of thirty dollars a month “as and for permanent alimony” might be awarded to plaintiff by the court. The interlocutory decree does not show that the stipulation was before the court or that it was considered by it, but does recite that proofs were taken of the matters alleged in the complaint and makes the same award as and for permanent alimony as is mentioned in the stipulation. The complaint alleged that thirty dollars per month was “a reasonable sum as and for alimony for the support and maintenance of plaintiff.”

There was nothing in the complaint to apprise defendant of the fact that plaintiff was seeking something else than

[663]

the ordinary alimony authorized by sections 137 and 139 of the Civil Code. When the stipulation was drawn waiving counsel fees and suit money and fixing the amount to be allowed as “permanent” alimony the defendant was justified in assuming that such -alimony was subject to the power of the court to modify as conferred by section 139.