ELEANOR LOUISE CRAFT, Respondent, v. JOSH COLEMAN CRAFT, Appellant, 49 Cal. 2d 189

GIBSON, C. J. Defendant has appealed from certain orders relating to the modification of interlocutory and final decrees of divorce so as to provide for increased alimony payments to plaintiff. In 1954, prior to commencement of the wife’s action for divorce, she and her husband, who was not then represented by counsel, signed a “ Stipulation - AppearaNCE and Waiver” prepared by the wife’s counsel in which defendant acknowledged service of summons and complaint, waived time to appear and answer, stipulated that the matter might be set down for trial on the default calendar, and waived further notice.

In addition the parties agreed to a specified division of the community property and the allowance of certain fees to plaintiff’s counsel, and she waived payment of alimony by defendant. She then filed a complaint for divorce which did not pray for alimony but did ask generally for “other and further relief.” No answer was filed by defendant, but the stipulation and appearance was filed and made a part of the record, and the case was heard as a default matter in defendant’s absence.

In accordance with the stipulation, the form of decree prepared by plaintiff’s attorneys provided that there should be no alimony, but the court by interlineation modified the provision so as to require payment of $1.00 per month alimony. It appears to be undisputed that defendant was not present at the time this provision was modified. A year later defendant applied for and obtained a final decree of divorce.

About seven months after entry of the final decree plaintiff obtained new counsel and filed an affidavit requesting the court to modify the interlocutory and final decrees so as to require defendant to pay a reasonable sum as alimony. The court ordered defendant to pay plaintiff $25 per week alimony and granted her motion for attorney’s fees. Defendant’s motion to strike portions of the interlocutory decree and to modify or vacate the decree was denied.

It was error for the trial court to award alimony in the interlocutory decree since no support money was demanded in the complaint for divorce and the case was heard as a default matter. (Code Civ. Proc., § 580; Parker v. Parker, 203 Cal. 787, 791-792 [266 P. 283]; Eddy v. Eddy, 64 Cal.App.2d 672, 673-674 [149 P.2d 187]; Darsie v. Darsie, 49 Cal.App.2d 491, 494 et seq. [122 P.2d 64].) The error was not urged by a timely appeal or motion for relief under

section 473 of the Code of Civil Procedure, but defendant may nevertheless attack the provisions of the interlocutory decree at any time if they are void on the face of the record. The judgment roll shows that the parties had stipulated that there would be no alimony. The various provisions of the stipulation agreed to by plaintiff, including the waiver of alimony, constituted the consideration for defendant’s agreement that his appearance could be filed and that the case might be heard as a default matter.

The stipulation entitled him to believe that the issue of alimony had been eliminated and that no support money would be awarded in the absence of proper notice to him. Under these circumstances he had a right to rely upon the stipulation, and it is apparent that he did so rely when, in accordance with the agreement, he failed to answer the complaint and permitted the case to be heard as a default matter.

In the absence of proper notice to defendant or other reason why he should have anticipated that the stipulation would be disregarded, the court had no jurisdiction to include an award of alimony in the interlocutory decree. This court held in Burtnett v. King, 33 Cal.2d 805, 806 et seq. [205 P.2d 657, 12 A.L.R.2d 333], that under

section 580 of the Code of Civil Procedure the trial court in a divorce action had no jurisdiction to make an award of community property to the wife where her complaint did not demand such relief and the husband defaulted. (Cf. Swycaffer v.

Swycaffer, 44 Cal.2d 689, 693-694 [285 P.2d 1] [award of child custody under prayer for annulment held void].) The opinion pointed out that the husband had “no notice or warning’’ that the property would be affected by a default judgment, that he would properly assume that the rights to the property would not be litigated, that a prayer for general relief was insufficient to give notice and that a holding that he was bound by the decree would sanction a procedure under which a defendant might be trapped by a default judgment. (33 Cal.2d at p. 811.) The Burtnett case (33 Cal.2d at pp. 809-810) distinguished several decisions which held that a default divorce decree awarding support money is not void although none was sought by the complaint. (Citing Bowman v.

Bowman, 29 Cal.2d 808 [178 P.2d 751, 170 A.L.R. 246]; Miller v. Superior Court, 9 Cal.2d 733 [72 P.2d 868]; Karlslyst v. Frazier, 213 Cal. 377 [2 P.2d 362]; Parker v. Parker, 203 Cal. 787 [266 P. 283]; Cohen v. Cohen, 150 Cal. 99 [88 P. 267, 11 Ann.Cas. 520].) These decisions were explained upon the theory that the question of support money, unlike that of the division of community property, is so germane to the issue of divorce that a defendant must anticipate an award of alimony regardless of whether there is a prayer for such relief.

It is obvious that a different situation is presented where, as here, there is not only a failure to pray for alimony but also a stipulation which amounts to an agreement to remove that issue from the case. While a defendant must ordinarily anticipate an award of alimony in an action for divorce, he should not be required to do so where there is a stipulation waiving that relief, and the existence of such a stipulation precludes the court from awarding support money in the absence of proper notice to the defaulting defendant.

Even if we were to assume that at the time of granting an interlocutory decree the court might, under some circumstances, disregard an agreement of the parties with respect to support and maintenance and make an award of alimony in derogation of the agreement (see Adams v. Adams, 29 Cal.2d 621, 624-625 [177 P.2d 265]), it could not do so in the absence of sufficient notice to a defaulting party. (For suggested procedure, see Darsie v. Darsie, 49 Cal.App.2d 491, 494-495 [122 P.2d 64]; Eddy v.

Eddy, 64 Cal.App.2d 672, 673-674 [149 P.2d 187].) We need not consider whether defendant could be estopped from attacking the judgment as being void on its face because, assuming without deciding that there may be such an estoppel, we find no evidence showing any inequitable conduct on his part or any change of position by plaintiff in reliance on any action by defendant.

It appears that when defendant applied for the final decree of divorce, he filed the affidavit required by rule 20 of the Rules for the Superior Courts (33 Cal.2d 9-10) in which he averred that he had complied with all of the requirements of the interlocutory decree on his part and was not in default as to any of them. The final decree provided that if the interlocutory decree made any provision for alimony or the disposition of community property, those provisions were made binding on the parties the same as if set forth in full.

In view of the circumstances under which plaintiff obtained the default interlocutory decree, defendant was entitled to believe that the decree would be consistent with the stipulation waiving alimony, and he had no duty to make an investigation to ascertain whether the decree departed from the agreement.

When, in order to obtain the final decree, he signed the affidavit stating that all requirements of the interlocutory decree had been complied with on his part, he had a right to proceed upon the assumption that no alimony had been awarded, and there is no evidence that he was then aware of the provision making such an award. Plaintiff has applied for an allowance of attorney’s fees for services rendered on appeal. The request for such fees is a matter which should ordinarily be addressed to the trial court, and we are of the view that the general rule should be followed here. (Civ. Code, § 137.3; cf. Lerner v.

Superior Court, 38 Cal.2d 676, 687-688 [242 P.2d 321].) Under the record presented upon this appeal we are unable to say whether the trial court could or should award attorney’s fees. The orders appealed from are reversed. The application for counsel fees on appeal is denied. Carter, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.

Section 580 provides that the relief granted to the plaintiff where there is no answer “cannot” exceed that which he shall have demanded in his complaint.