Talbot v. Talbot

SHENK, J.

This is an appeal by the defendant from an order for the payment of alimony, counsel fees and costs

pendente lite

in an action for separate maintenance.

The plaintiff alleged that the parties intermarried on September 13, 1922, at London, England, and were and continued to be husband and wife. On the day the complaint was filed an order was issued requiring the defendant to show cause why he should not be required to pay temporary alimony, counsel fees and costs. The order to show cause came on regularly for hearing on October 30th, both parties being present in court and represented by counsel. The matter was then heard, but the determination thereof was continued to November 6th for the filing of briefs. Thereafter, on November 17, 1930, the court made the order from which this appeal is taken. In the meantime, on November 10, 1930, the defendant filed with the clerk an answer in which he denied that the plaintiff and the defendant then were, or ever had been, husband and wife.

The point made by the defendant on the appeal is that to justify alimony, marriage must be admitted or proved, citing

Hite

v.

Hite,

124 Cal. 389 [57 Pac. 227, 71 Am. St. Rep. 82, 45 L. R. A. 793], and that there is no showing to that effect in the present case. In the Hite case relied upon the marriage was denied on the hearing of the order to show cause. Here, the evidence of the plaintiff on the hearing was that the parties had been and continued to be married as alleged in the complaint. The proof on behalf of the plaintiff was sufficient to support the order. The filing of the answer after the matter had been submitted for decision was not sufficient to oust the court of jurisdiction to make the order on the record as it stood when the matter was submitted. (See

In re Morgan,

106 Cal. App. 602 [289 Pac. 647].)

On November 6, 1930, the defendant filed as an exhibit certified copies of the complaint, interlocutory de

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