JANE EVANS, Plaintiff and Respondent, v. SAMUEL E. EVANS, Defendant and Appellant
Court of Appeal of California, First Appellate District, Division One
August 5, 1969
The parties were married March 3, 1950. On May 29, 1964, the plaintiff Jane secured a default separate maintenance decree by which her husband Samuel was ordered to pay $ 175 each month for her support. A year later, on Samuel’s motion, the amount was reduced to $ 75 per month. Subsequently, Samuel filed a separate action for divorce based upon her alleged extreme cruelty. Jane, represented by counsel, generally denied the material allegations of the complaint and affirmatively pleaded the separate maintenance decree in her favor. Following a trial, interlocutory and final judgments of divorce were entered in Samuel’s favor. These judgments are now final. Neither made provision for Jane’s support. Later, Samuel moved to terminate the support provision of Jane’s separate maintenance decree. The court made an order denying the motion. Defendant Samuel E. Evans has appealed the order.
- Whether a separate maintenance decree is a bar to a subsequent action for divorce after the final separation of the parties?
- Whether separate maintenance and alimony are different from each other?
- Whether the Support provisions of a decree of separate maintenance continue in effect if the marriage is thereafter terminated by divorce?
This court held that the wife’s separate maintenance decree was, of course, res judicata as to the conduct of the parties prior to its entry and as the record before it did not contain the trial court’s findings in the divorce action it was assumed that the judgments in that case were based on Jane’s extreme cruelty following the entry of the separate maintenance decree. It is settled law in California that a separate maintenance decree is not a bar to a subsequent action for divorce upon grounds of cruelty committed after the final separation of the parties.
This court held that Separate maintenance differs from alimony in that it presupposes a continuing marital status. The purpose of a suit for separate maintenance is to specifically enforce the general duty of the husband by directing certain definite payments to be made at regular intervals for the wife’s support
An action for separate maintenance is based upon the contractual duty of a husband toward his wife to furnish support; such rights as the wife might have to post-marriage alimony or support are not based upon this contract, but rather upon statute and court determination.
This court held that the divorce without a reservation of jurisdiction to award support extinguished the right to separate maintenance and that the respondent Jane Evans was not without a remedy. She was permitted to resist her husband’s divorce action, and failing in that, to seek an award of support by cross-complaint for divorce, or under the Salvato, Barton, Rethorst theory, or under the court’s basic equitable powers. Since she did not go for any of the remedies, this court reversed the order of the district court.
This court reversed the order of the district court denying a motion to terminate support payments provided for in a separate maintenance decree.
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