Kinsey v. Kinsey

HERNDON, J. Plaintiff appeals from an order denying her motion to modify the interlocutory judgment of divorce theretofore entered. Prom the pleadings, the pretrial order incorporating the joint pretrial statement, and the interlocutory judgment of divorce, it is clear that both parties sought and obtained a final determination of all their respective [220]property rights. The provisions of said interlocutory judgment relating to the property of the parties and their respective rights therein were expressly based upon the stipulation of the parties made at the trial of the action which proceeded upon the complaint as a default.

This interlocutory judgment is now final, no appeal having been taken therefrom and no relief therefrom having been sought within the time allowed by section 473 of the Code of Civil Procedure.1 Said judgment contained no provision retaining jurisdiction in the court to modify the division of property therein made other than the following:

“It Is Further Adjudged that the following provision regarding the division of certain stocks is based upon a stipulation of the parties in open court in which the plaintiff has relied upon the representations of the defendant, through his counsel, made in open court, that there are no other securities, cash, or cash in banks, other than the items specified below, and it is ordered that if any additional assets of this character are later discovered to have been in existence on August 20, 1962, they shall be divided equally between the parties, and defendant has further represented that the only loans, liens, or encumbrances on any of said stock are the two amounts due banks which are hereinafter set forth.” Plaintiff, of course, does not rely on this clearly inapplicable provision as the basis for the modification, the denial of which she challenges on this appeal.

Despite these undisputed jurisdictional facts, plaintiff sought to modify the property provisions of this interlocutory judgment by her motion made more than 11 months after its entry. She sought to add thereto an order awarding to her one-half the payments due to defendant from his company’s noncontributory pension plan in the event of his retirement.

We need not now undertake to determine whether such an order regarding this particular pension plan would have been proper if originally it had been made part of the division of the community property of the parties affected by the interlocutory judgment in order to hold that the judgment actually entered may not now be modified in this fashion. The controlling rule of law was very clearly and definitely stated in Leupe v. Leupe, 21 Cal.2d 145, 147-148 [130 P.2d 697], which