Author: LegalEase Solutions
Is temporary spousal support available to wife while the trial court’s finding that it lacks personal jurisdiction over respondent (husband) is pending on appeal in the appellate court?
A husband has equitable as well as statutory duty under California law to provide support to a spouse during the existence of marriage. Accordingly, the court also has discretion to order temporary support during the pendency of a dissolution or separation. The court has jurisdiction to do so based on the good faith of the filing party in filing the action with the court. Once the court determines an action was filed in good faith, based on the pleadings, the court’s analysis is based on need and ability to pay.
- The purpose of temporary support
“Temporary spousal support is awarded under section 3600. It is based on the supported spouse’s needs and the other spouse’s ability to pay.” In re Marriage of Tong and Samson (2011) 197 Cal.App.4th 23, 29, 127 Cal.Rptr.3d 857, 861, as modified (July 18, 2011) (citing In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327, 16 Cal.Rptr.3d 489). “[T]emporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.” Id. “The manifest purpose of pendente lite allowances to a wife” is “to provide her with whatever is needed by her to litigate properly her side of the controversy.” In re Marriage of Dick, 15 Cal. App. 4th 144, 166, 18 Cal. Rptr. 2d 743, 755 (1993).
- When temporary support is awarded
A “temporary support award is usually obtained soon after the filing of the petition and before any final determination on the various issues in the dissolution.” In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637, (120 Cal.Rptr.3d 184, 191). “A temporary order is intended to allow the supported spouse and children to live in their ‘accustomed manner’ pending the ultimate disposition of the action.” Id. (citing In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1038, 102 Cal.Rptr.2d 662.; see also Estate of Fawcett (1965) 232 Cal.App.2d. 783, 43 Cal.Rptr. 160).) “The order is based on need and is not an adjudication of any of the issues in the litigation.” Id. Under California law, “[a]n action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” Code Civ. Proc., § 1049. Therefore, the power of the court to make such an award continues during the pendency of any appeal. The award does not depend upon the issues being appealed. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1039.) (see also Bruce v. Bruce (1911) 160 Cal. 28, 30 [116 P. 66, 67]).
Further, the court in Loeb v. Loeb (1948) 84 Cal. App. 2d 141, 190 P.2d 246, upheld the trial court’s award of temporary support without application for the support. The Loeb court noted that, “[t]here is dicta in the decisions of our courts that an award of temporary support may be made ex parte.” Id. at 143 (citing Mudd v. Mudd, 98 Cal. 320, 321 [33 P. 114]; Arnold v. Arnold, 215 Cal. 613, 614 [12 P.2d 435]; Reed v. Reed, 40 Cal.App. 102, 104 [180 P. 43].) The court held that, “[w]hile it undoubtedly is the better practice to grant temporary support only after application, notice, and hearing,” it is not a reversible error for the trial court to depart from that practice. Id. at 144. Thus, the Leob court acknowledged the wide discretion of California courts in awarding temporary support ex parte, and without an application for support.
Additionally, in In re Marriage of Stich (1985) 169 Cal. App. 3d 64, 214 Cal. Rptr. 919, in which the subject matter jurisdiction of a California court was at issue where a prior decree of divorce issued by another jurisdiction existed, the court held that, “California courts have jurisdiction to issue temporary orders pending the adjudication of the validity of the foreign decree.” Id. at 68.
From the foregoing, it would appear that the court may award temporary spousal support in equity during the pendency of the decision on the issue of personal jurisdiction over Husband.