Kusel v. Kusel

SHAW, J.

The defendant appeals from a judgment in favor of the plaintiff. The appeal was taken within sixty days after the rendition of the judgment, and the evidence is made a part of the record by bill of exceptions.

The plaintiff is the wife of the defendant, and the action is brought to obtain a decree to compel the defendant to maintain her while living separate and apart from him. The complaint, which was filed July 2, 1902, alleges that the plaintiff and defendant intermarried on February 6, 1896, and that on June 30, 1902, the defendant deserted the plaintiff and refused to furnish the plaintiff any support or maintenance, he having the ability so to do; that the plaintiff has no estate or means, and that the defendant is possessed of property of the value of thirty thousand _ dollars, consisting chiefly of real estate in San Francisco. The answer denies the desertion, an,d avers that he owns no property of any kind. The court made findings to the effect that the defendant deserted the plaintiff on the 30th of June, 1902, as alleged, and continued to live separate and apart from her, and refused to support or maintain her; that she had no means of her own; that the -defendant was the owner of the real estate described in the complaint, and that the same was worth thirty thousand dollars. As conclusions of law, the court declared that the defendant had deserted the plaintiff; that she was entitled to a decree for permanent support and maintenance; that under the circumstances surrounding the case, instead of ordering defendant to pay a certain fixed sum monthly, a lump sum should be awarded to her for her support; that she was entitled to have a decree awarding her ten thousand dollars as the total and final amount to be paid to her by the defendant for her separate support and maintenance, and that the same should be declared a lien upon the real estate. Judgment was entered in pursuance of this conclusion awarding plaintiff ten thousand dollars for her support and maintenance, and declaring the sum a lien upon tbe real property.

We think the court erred in awarding plaintiff the sum of

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ten thousand dollars for her support and maintenance instead of a periodical allowance. The action is maintained under the provision of section 137 of the Civil Code, which is as follows: “When the husband willfully deserts the wife, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. . . . The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered or revoked at the discretion of the court.” Section 140 provides: “The court may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case.” It will be observed that there is nothing in the statutory provisions above quoted expressly authorizing the court in suits for maintenance to divide the property of the husband, or to give to the wife, in lieu of periodical payments for her support, a gross sum out of the husband’s estate. Originally, •alimony in its technical significance meant an allowance of money payable in periodical installments, not in gross. “Alimony is not a sum of money, nor a specific proportion of the husband’s estate given absolutely to the wife, but it is a continuous allotment of sums, payable at regular intervals, for her support from year to year.” (1 Bouvier’s Law Dict., 131;