Schiller v. Schiller

DESMOND, P. J. Respondent in this case secured by default on April 15, 1942, an interlocutory decree of divorce, by the terms of which her husband was directed to pay her for her support and maintenance the sum of $125 per month [842]for the balance of her lifetime or until she should remarry. The decree, as originally made, contained the following language : “Defendant is also ordered to pay plaintiff the further sum of $150.00 in installments of $25.00 on the 16th day of each month commencing April 16, 1942, to be paid at No. 1124 Van Nuys Building, 210 West 7th Street, Los Angeles, California.”

On May 19, 1942, counsel for appellant made a motion to set aside the interlocutory judgment of divorce on the ground that the court was without jurisdiction of the persons or property of the defendant and was without power to enter interlocutory judgment in the case. The motion to set aside the interlocutory decree was taken under submission and on July 16, 1942, was denied by the trial court, but the decree, by the same order, was modified by striking out the above mentioned language providing for the additional payment of $150 in $25 monthly installments.

Although the motion which was passed upon by the trial court was one to set aside the interlocutory judgment, the appeal which defendant has filed is an appeal “from that part of that certain order made and entered by the Court in this action on the 16th day of July, 1942, wherein said Court refused and denied defendant’s motion to vacate provisions awarding alimony to the plaintiff, as provided in the Interlocutory Judgment of Divorce, entered April 20, 1942.” The appellant’s brief states that the appeal has been taken from the order denying the motion of defendant to set aside the interlocutory decree of divorce and from the judgment, but reference to the transcript satisfies us that there is no appeal here from the interlocutory decree of divorce but Only from the order refusing to vacate the portion of the decree that provides alimony. It is contended: First, that there is no evidence as to the amount or necessity for the payment of any alimony. Second, that neither the complaint nor the prayer contains any reference to an alleged property settlement which, it is claimed, the court indirectly approved by ordering certain payments of alimony as therein provided.

At the default hearing, the plaintiff’s testimony, corroborated by her adult daughter, was a recital of cruelty involving mental anguish and physical violence, and included a presentation to the trial court of an instrument which was introduced as plaintiff’s Exhibit 1, concerning which plaintiff’s counsel made inquiry as follows: