I concur.
I agree with the holding in the majority opinion that the trial court properly entered a final decree of divorce, but am of the opinion that in reaching this result we should overrule Webster v. Webster, 216 Cal. 485, 487 [14 P.2d 522], In the Webster case, as in the present one, the appeal was only from the part of the interlocutory decree dividing the community property. The majority opinion distinguishes the Webster case on the ground that there the final decree of divorce was entered during the pendency of an appeal from the interlocutory decree, whereas in the present case the final decree was entered after a judgment on retrial following an order of the District Court of Appeal stating that “the interlocutory judgment is affirmed, except ... as to that portion relating to a division of the community estate. ...” (Harrold v. Harrold, 101 Cal.App.2d 601, 609 [224 P.2d 66].) The majority opinion states that this order affirmed the part of the interlocutory decree dissolving the marriage and holds that an appeal from the order entered after the retrial of *87the property issues is not such an appeal as will stay the entry of a final decree under section 132 of the Civil Code.
Since plaintiff’s first appeal was from only that part of the interlocutory decree dividing the community property, the part of that decree dissolving the marriage was not before the District Court of Appeal for review. (American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210, 216 [246 P.2d 935] ; G. Ganahl Lbr. Co. v. Weinsveig, 168 Cal. 664, 667 [143 P. 1025]; Whalen v. Smith, 163 Cal. 360, 362 [125 P. 904, Ann. Cas. 1913E 1319].) It could not, therefore, affirm that part of the interlocutory decree, and its order reversed the only part of that decree that was before it for review. (Ibid.; Denman v. Smith, 14 Cal.2d 752, 755 [97 P.2d 451].) Following that reversal and a retrial of the issues, the trial court ordered a division of the community property. The present appeal is again from only that part of the judgment dividing the community property. The situation is the same as if the part of the interlocutory decree dividing the community property were appealed from for the first time. The fact that there was a prior appeal, a reversal, and a partial new trial cannot avoid the prohibitory effect of section 132, if that section was properly construed in the Webster case. Even if there were several appeals and parts of the interlocutory decree were actually affirmed, the word “any” in section 132, as interpreted in the Webster case, would prohibit the entry of a final decree of divorce, for under that case the final decree cannot be entered if an appeal from any part of the interlocutory decree is pending.
The majority opinion distinguishes DeVall v. DeVall, 102 Cal.App.2d 53 [226 P.2d 605], from the present case on the same ground it distinguishes the Webster ease by saying that in the DeVall case there was an interlocutory decree still appealable at the time the final decree was entered, whereas in the present case the part of the interlocutory decree dissolving the marriage had been affirmed on the prior appeal. In the DeVall ease a new trial on the issues relating to the division of the community property was granted after the entry of the interlocutory decree. At the conclusion of the new trial it was ordered that the previous interlocutory decree remain in effect, and on the same day, but more than one year after the entry of the original interlocutory decree, a final decree of divorce was entered. This final decree was reversed on appeal, on the authority of Webster v. Webster, supra; Newell v. Superior Court, 27 Cal.App. 343 [149 P. *88998]; Ritter v. Ritter, 103 Cal.App. 583 [284 P. 950] ; and Cory v. Cory, 71 Cal.App.2d 309 [162 P.2d 497], Section 132 states that “if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed.” (Italics added.) In the DeVall case the motion for a new trial was granted, and it was held on appeal, following the reasoning of the Webster ease, that a final decree of divorce could not be entered until one year had elapsed from the time of entry of the judgment on new trial. In the present case the interlocutory decree was reversed on appeal, but the majority hold that a final decree of divorce can be entered before one year has elapsed from the entry of the judgment on retrial. This holding is irreconcilable with that in the DeVall case, and is inconsistent with the reasoning of the Webster case.
In my opinion the interpretation given section 132 in the Webster case was erroneous. Since section 132 is concerned solely with the dissolution of the marital relationship of the parties, it should be interpreted to mean that only when an appeal is taken from the provisions of the interlocutory decree dissolving the marriage is the entry of a final decree of divorce prohibited until that appeal is finally disposed of by affirmance or by retrial, or in case of another appeal by affirmance thereof. Furthermore, the principal reason given for the holding in the Webster case is not persuasive. In that case it was said “ ‘that in granting a divorce the court has a variety of duties to perform affecting the property rights of the parties' and the future welfare of those parties and their children; and it was deemed advisable [by the Legislature] that in such cases all of those matters, as far as possible, should be finally adjusted in connection with the granting of a divorce. ’ ” (Webster v. Webster, 216 Cal. 485, 494 [14 P.2d 522].) There is no basis for this statement in either the statutes or other cases of this court. Neither alimony nor custody of children are “finally adjusted” at the time of granting a final decree of divorce; both can be modified at any time thereafter. (Civ. Code, §§ 138, 139.) Moreover the trial court is not required to divide the community property or decide the problem of custody at the time of the interlocutory decree, but can determine those matters in separate actions. (Pereira v. Pereira, 156 Cal. 1, 10 [103 P. 488, 134 Am.St.Rep. 107, 23 L.RA.N.S. 880]; Brown v. Brown, 170 *89Cal. 1, 4 [147 P. 1168]; Elms v. Elms, 4 Cal.2d 681, 685 [52 P.2d 223, 102 A.L.R. 811].) Even if the Legislature deemed it advisable that property rights and custody should be finally adjusted in the divorce action, that objective is defeated by the Webster rule. If the parties, or the court, foresee long litigation over those matters, they may leave them to be determined later or in separate actions to avoid prolonging indefinitely the dissolution of the marriage.
The only other reason given in support of the holding in the Webster case is that the Legislature favors the prolongation of the marriage. The Legislature, however, by the express terms of section 132 fixed the expiration of a one year period after the entry of the interlocutory decree as the time for the entry of the final decree of divorce in the absence of an appeal from the trial court’s determination that a divorce should be granted. Section 132 also expresses a legislative policy favoring the restoration of the parties to the status of single persons and enabling them to remarry after the expiration of the one year period. As amply illustrated by the present case, the Webster rule permits the frustration of these policies by a litigious spouse’s repeated appeals from the provisions of the interlocutory decree dividing the community property. In my opinion the obvious purpose of the appeal and new trial provision of section 132 is to prevent the dissolution of the marriage until the right thereto is finally settled. Once it is finally determined that a divorce is proper and the one year period has elapsed, the purpose of section 132 is fully accomplished.
The holding in the Webster case is also out of harmony with the general rules giving finality to severable parts of judgments not appealed from or not subject to a motion for a new trial. If a partial appeal is taken from a judgment in which the issues determined are severable, the parts not appealed from become final and are beyond the scope of review of the appellate court. (American Enterprise, Inc. v. Van Winkle, supra, 39 Cal.2d 210, 216; G. Ganahl Lbr. Co. v. Weinsveig, supra, 168 Cal. 664, 667; Whalen v. Smith, supra, 163 Cal. 360, 362.) If the part appealed from is reversed, and a new trial is had on the issues involved therein, the parts not appealed from are not affected. (Smith v. Anglo-California Trust Co., 205 Cal. 496, 505 [271 P. 898]; Neill v. Five C Refining Co., 79 Cal.App.2d 191, 194 [179 P.2d 818].) Similarly, a new trial may be had on the issues *90involved in a severable part of a judgment without affecting the other parts. (Code Civ. Proc., §§ 657, 662.)
Section 132 should be interpreted in the light of these general rules, and they should apply to judgments in divorce actions, for there are no persuasive reasons for assuming that section 132 establishes an exception to them. The reliance in the Webster case on the use of the word “any” in that section is not persuasive. In the light of the purpose of section 132 and the rules governing partial appeals, it means “any” appeal from the part of the interlocutory decree dissolving the marriage. Moreover, authority for appeals from interlocutory decrees in divorce actions is given in the same section of the Code of Civil Procedure that grants authority for appeals from judgments generally. (§ 963, subd. 2.) In divorce actions, the frequent appeals from the part of the interlocutory decree dividing the community property demonstrate that it is ordinarily severable from the part decreeing a dissolution of the marriage. (E.g., Pereira v. Pereira, supra, 156 Cal. 1, 10; Elms v. Elms, supra, 4 Cal.2d 681, 685; Wilson v. Wilson, 76 Cal.App.2d 119, 122 [172 P.2d 568].) As the majority opinion concedes, in the present case these issues are not so interwoven or interdependent that they cannot be considered independently of one another.
The Webster case should be overruled and the Newell, Cory, Ritter, and DeVall cases disapproved, and it should be held that a final decree of divorce can be entered at any time after the expiration of one year from the entry of the interlocutory decree, when, as here, there is no appeal from provisions of the interlocutory decree dissolving the marriage and the issues involved in an appeal from the provisions of the interlocutory decree dividing the property are severable from those involved in the dissolution of the marriage.
Sehauer, J., concurred.
EDMONDS, J.It may well be better social policy to allow the entry of a final decree of divorce when an appeal is pending from only the provisions of the interlocutory decree dealing with property rights. But the Legislature has stated in language too clear to be misunderstood that “if any appeal is taken from the interlocutory judgment” the final decree may not be entered until the appeal is finally disposed of. (Civ. Code, § 132 [emphasis added].) Consistently, the section has been so construed and applied for over 20 years. *91(Webster v. Webster, 216 Cal. 485 [14 P.2d 522], and cases following that decision.)
It seems evident that the section is capable of abuse by a wife who may prolong the marriage status almost indefinitely by a series of appeals, and thus continue to enjoy a share in the husband’s earnings. Justice Traynor would allow the final decree to be entered pending an appeal from the property parts of the interlocutory judgment, according to principles relating generally to partial appeals. Justice Shenk would allow that decree to be entered after an appeal has been taken and decided, although the result of the appeal has been to remand the cause for further proceedings. Both solutions ignore the specific mandate of section 132; both solutions to that extent amount to a judicially legislated repeal of the section.
It is fundamental that the courts should not substitute their standards of social policy for those of the Legislature. In the present situation, that body has clearly stated that there shall be no final decree until the final disposition of any appeal from the interlocutory judgment. If the social policy of the state should be to allow the parties to obtain a final judgment of divorce notwithstanding unsettled issues as to property rights, the remedy is for the Legislature to amend section 132 accordingly.
I would reverse the judgment insofar as it purports to direct the entry of a final judgment of divorce.