Livingston v. Superior Court

Temple, J. It is sought in this proceeding to have reviewed and declared void an order made by the above court adjudging that the petitioner was guilty of a contempt and ordering her to be punished therefor.

[634]The contempt order was made in a proceeding instituted by the husband of the petitioner, under section 176 of the Civil Code, to compel her to support him out of her separate property. He obtained an order requiring her to pay for his support twenty-four dollars per month. An injunction was issued enjoining her from conveying her property so as to defeat any judgment he might obtain against her. In violation of this injunction petitioner conveyed all her property to her daughter on the day the decree was made.

At the hearing in the superior court petitioner pre. sented her affidavit showing that she had no means from which to make the payment. Upon this question the court found against her, and with that issue we have no concern in this proceeding. The attack made here is solely upon the power of the superior court to make such an order on any state of facts.

This contention seems to be based upon the fact that in section 137 of the Civil Code provision is made for compelling the husband to support the wife, and it is provided that the final judgment in such case may be enforced by the court “ by such order or orders as in its discretion it may from time to time deem necessary.” This, it is said, authorizes such procedure when the wife is suing her husband for separate maintenance, but the statute does not authorize such orders when the husband sues the wife for his support.

In Galland v. Galland, 38 Cal. 265, this court said: “It is within the general powers of courts of equity independent of the statute to decree alimony to the wife without divorce.” The question has been variously decided in the United States, and it is said that in England courts of equity do not give such relief except as an incident in an action seeking some other redress. It is said in 2 Story’s Equity Jurisprudence, section 1422, that to the question whether courts of equity have general authority to decree alimony to the wife when she is left without other means of maintenance, “it can scarcely be said that according to the [635]