Buchanan v. Buchanan , 114 Cal. App. 2d 120 ( 1952 )

114 Cal. App. 2d 120 (1952)

HAZEL BUCHANAN, Respondent,
v.
ROBERT G. BUCHANAN, Appellant.

Civ. No. 19188.

California Court of Appeals. Second Dist., Div. One.

Nov. 10, 1952.

Gary W. Sawtelle for Appellant.

No appearance for Respondent.

WHITE, P. J.

Defendant appeals from that portion of an interlocutory judgment of divorce, entered upon his default, whereby defendant was ordered to pay to the plaintiff wife $15 per week "for her support." The respondent wife has made no appearance in this court by brief or otherwise.

By her complaint the wife alleged that the defendant had been guilty of extreme cruelty; that there were no children of the marriage; that there was no community property. No averments were made as to the need of the wife for support or the husband's ability to pay. The complaint concluded with a prayer that the bonds of matrimony be dissolved; that plaintiff's maiden name be restored; and that "plaintiff be allowed a reasonable sum for attorney's fees and for her costs herein, for such other and further relief as to the court may seem just and proper."

Appellant's contention that in the circumstances presented the trial court erred in making an award of support money is well taken. [1] The rule that the relief granted to a plaintiff, if no answer be filed, cannot exceed that which is demanded in the complaint (Code Civ. Proc., 580) is applicable to default divorce cases (Bennett v. Bennett, 50 Cal. App. 48 [194 P. 503]; Eddy v. Eddy, 64 Cal. App. 2d 672 [149 P.2d 187]; Peck v. Peck, 52 Cal. App. 2d 792 [127 P.2d 94]; Darsie v. Darsie, 49 Cal. App. 2d 491 [122 P.2d 64]; Majors v. Majors, 70 Cal. App. 2d 619 [161 P.2d 494]; Blackwell v. Blackwell, 86 Cal. App. 2d 513 [194 P.2d 796]). [2] A prayer for general relief cannot enlarge the power of the court to award what is not specifically demanded (Eddy v. Eddy, supra, p. 673). As above stated, the complaint herein contains no prayer for support and no allegations as to the need therefor or the ability of the defendant to pay.

The judgment is modified by striking therefrom the words, "That defendant be required and he is hereby ordered to pay to plaintiff $15.00 per week for her support to commence forthwith." As so modified, the judgment is affirmed. Appellant to recover costs on appeal.

Doran, J., and Drapeau, J., concurred.