I concur in the decision herein but wish to point out the inconsistency between it and Monroe v. Superior Court, ante, p. 427 [170 P.2d 473], in which I dissented. In the Monroe case the issue was whether a decree in an action for separate maintenance determining the issue of future support, the amount, or duration thereof, was res judicata and hence foreclosed a subsequent modification of the decree. The majority opinion in that case held that it was not. In the case at bar the problem is whether a decree in a separate maintenance action determining property rights is res judicata in a subsequent proceeding involving the same property. The majority of this court holds that it is. The only difference between these cases is that the first involves the right to support and the second the right to property. There is no reason why the rule should not be the same in both cases. If it is res judicata in the case of property, and it is so held in the ease at bar, it should also be res judicata where a support allowance is involved. I pointed out in my dissenting opinion in the Monroe case that the same rules should apply in separate maintenance actions as in divorce actions; in the latter the decree is res judicata whether the issue involves support or property. (Puckett v. Puckett, 21 Cal.2d 833 [136 P.2d 1]; Long v. Long, 17 Cal.2d 409 [110 P.2d 383]; Tolle v. Superior Court, 10 Cal.2d 95 [73 P.2d 607].)
In the instant case reliance is placed upon section 137 of *845the Civil Code which authorizes the court in a separate maintenance action to make the same disposition of community and homesteaded property as it may make in a divorce action. But in the case of support the same power exists in doth types of actions. Section 137 of the Civil Code, after providing for separate maintenance actions, and support and disposition of property therein, states: “The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court.” Likewise in dealing with support in a divorce action the law provides: “And the court may from time to time modify its orders in these respects.” (Civ. Code, § 139.) Yet the rule has been established that a support determination in a divorce case may be res judicata and beyond the power of the court to modify. (Tolle v. Superior Court, supra.) The same rule should apply whether it is a property or support right involved. The only reason for making special reference in section 137 to disposition of property interests in separate maintenance actions is the possibility that such determination might not be appropriate inasmuch as the marriage is not dissolved. It was not necessary to mention support rights as that would be taken for granted, being the heart of separate maintenance actions. Hence it was not intended that an adjudication as to property would be final but one as to support would not be.
It is just as important for the parties involved as well as society as a whole that the decree be final in either case. It places them in a position where they may intelligently plan their economic future. There is as much danger (assuming but not granting there is any) that a lack of finality in property rights will in the future burden society with an impoverished wife as there is where support rights are concerned.
There is clearly no sound basis in principle or legal theory for a distinction between this case and the Monroe case, and the rule should be the same in both eases. Since a majority of this court has now held that the award of property in this case is a final determination, and res judicata, and beyond the power of the court to modify, the Monroe ease should be expressly overruled to avoid the conflict and confusion which will exist by leaving that ease go unmentioned in the majority opinion in this ease.
Schauer, J., concurred.