Washington v. Washington

DOOLING, J. Two separate appeals are here presented: 1. an appeal by defendant from an order of December 14,1956, in superior court action Number 358362 (hereinafter called the divorce action); 2. an appeal by defendant from an order made on December 31, 1956, in superior court action number 439265 (hereinafter called the property action). The two appeals present different questions and will be treated separately.

The Order in the Divorce Action

Respondent sued appellant for divorce and in March 1950 an interlocutory decree of divorce was entered granting respondent’s prayer for divorce. This decree made no provision [654]for alimony or child support and ordered “that the plaintiff have the complete care, custody and control of the minor daughter of said parties.” This interlocutory decree and a final decree containing the same provisions entered in 1951 were not appealed from and both have long since become final. In February 1955 on motion of respondent the court made an order modifying the final decree of divorce to require the payment of $75 per month by appellant commencing March 1, 1955, for the support of the child of the parties and for attorney’s fees and costs. This order was likewise not appealed from and has also become final. On December 14, 1956, pursuant to proceedings commenced by appellant the court determined that $1,815 had accrued under the order for child support of February 1955 and was owing and unpaid thereunder. From this order appellant has appealed.

Most of the arguments made on this appeal were urged by appellant on his appeal from the order for attorney’s fees and costs to resist this appeal and were disposed of by us on that appeal. There is no reason for repeating them here. (See Washington v. Washington, 163 Cal.App.2d 129, 131-132 [329 P.2d 115].) Appellant’s attempt at this late date to raise the issue of the paternity of the child cannot succeed. Both the interlocutory decree and the final decree as well as the order for child support of February 1955, all of which have been allowed to become final, have declared the child to be “the minor daughter of said parties.”

The Order in the Property Action

In the divorce action before the entry of the interlocutory decree an order had been made for temporary alimony, counsel fees and costs. (See Washington v. Washington, supra, 163 Cal.App.2d p. 130.) Thereafter appellant recovered judgment for serious personal injuries which judgment was affirmed in Washington v. City & County of San Francisco, 123 Cal.App.2d 235 [266 P.2d 828]. After this judgment became final respondent commenced an action to recover one-half thereof as community property (the property action). She recovered judgment for a one-half interest but this judgment was reversed in Washington v. Washington, 47 Cal.2d 249 [302 P.2d 569], the Supreme Court ruling that as a matter of law the proceeds of the judgment for personal injuries were appellant’s property in which his ex-wife had no interest.