See v. Superior Court

TRAYNOR, J. — Doris S. See and Charles See were married in 1942 and divorced in 1960. On March 14, 1959, they executed an integrated property settlement agreement dividing their property and providing for child support and monthly payments in lieu of alimony. The agreement was incorporated in the interlocutory decree. The final decree was entered on April 27, 1960. On June 27, 1960, Doris filed an amended complaint in an independent suit in equity to vacate the parts of the decree incorporating the agreement. She also sought temporary alimony, child support, and suit money. [280]The trial court denied the temporary relief on the ground that it had no power to make the orders requested. Doris seeks a writ of mandate to the trial court to hear her motions for temporary alimony, child support, and suit money.

Charles invokes the rule that temporary alimony cannot be granted unless there is evidence of an existing marriage (Reeves v. Reeves, 34 Cal.2d 355, 361 [209 P.2d 937]; Colbert v. Colbert, 28 Cal.2d 276, 279 [169 P.2d 633]) and the rule that alimony cannot be granted after a marriage has been dissolved in this state by a court that had jurisdiction over both spouses. (Long v. Long, 17 Cal.2d 409, 410 [110 P.2d 383]; Tolle v. Superior Court, 10 Cal.2d 95, 97-98 [73 P.2d 607]; Hudson v. Hudson, 52 Cal.2d 735, 744 [344 P.2d 295].) He contends that these rules are controlling here, since Doris attacks only the property provisions of the decree and does not attack the final divorce.

It is true in the present case that the marriage no longer exists. The cases requiring marriage as a prerequisite for alimony and those denying alimony after a final decree of divorce did not involve a dispute over the validity of the property provisions of a divorce decree. In Reeves v. Reeves, 34 Cal.2d 355 [209 P.2d 937], and Colbert v. Colbert, 28 Cal. 2d 276 [169 P.2d 633], the question was whether an action in which alimony was requested for the first time is barred when there is no existing marriage. In Long v. Long, 17 Cal. 2d 409 [110 P.2d 383], and Tolle v. Superior Court, 10 Cal.2d 95 [73 P.2d 607], the question was whether new actions for alimony can be maintained subsequent to undisputed decrees settling property and support rights. There is no merit in the contention that Hull v. Superior Court, 54 Cal.2d 139, 145 [5 Cal.Rptr. 1, 352 P.2d 161], overruled these cases. In Hull we merely held that entry of the final decree could not be refused because the husband had not fulfilled his obligations under an integrated property settlement incorporated in the interlocutory decree.