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District Court of Appeal, Second District, Division 2, California.


Civ. 13586.

Decided: June 09, 1942

Zagon & Aaron, of Los Angeles, for appellant. William Ellis Lady, of Los Angeles, for respondent.

Alleging desertion, extreme cruelty and adultery, plaintiff filed this action for separate maintenance and for her share of the community property, which she described and alleged to be of the value of $60,000. She set forth that she “entered into a marriage relation” with defendant on December 16, 1938, and that they “ever since have been and now are husband and wife”; that she is without funds to pay costs or to employ counsel. Defendant denied the allegations of the complaint and alleged that Mrs. Lido Vallera, named as co–respondent, is his lawful wife; that prior to his cohabitation with plaintiff, plaintiff was an unchaste woman and had given birth to two illegitimate children; that his relations with her were illicit and libidinous; that during the season of such cohabitation, defendant had a living wife, Ethel, which fact was known to plaintiff; and that he subsequently was divorced by Ethel in the state of Ohio in December, 1938.

The court found against plaintiff on all of her material declarations and, in accordance with the answer, determined that during the years of her cohabitation with defendant plaintiff knew that he was linked in lawful wedlock with Ethel Chippo, and that such status continued until December 15, 1938; that from May, 1936, to February, 1939, at Detroit, Michigan, plaintiff maintained meretricious relations with defendant, always knowing of his inability to contract a marriage with her; that neither by reason of such relations nor of any agreement was a common law marriage effected; that prior to May, 1936, plaintiff had become the mother of two children while consorting with a stranger to defendant. Upon such findings the court concluded and adjudged that the property earned and accumulated by plaintiff and defendant is held by them as tenants in common and that each is entitled to a moiety thereof; that defendant and Lido Cappello are legally husband and wife, and that plaintiff is not entitled to be maintained by defendant.

The sole question for decision is whether a woman, who has thus, by further defilement of her own character, knowingly formed an illicit alliance with an unmoral and degraded wretch, may enforce her claim to a share in the acquets and gains of her paramour accumulated during the years of her debasement. The answer is not far to seek. It is embalmed in the quaint and classic maxim: “Who seeks equity must come with clean hands.” Neither judge nor chancellor may grant her relief. In all of the cases cited by plaintiff in support of the judgment, it was determined that the wife was either de facto or putative. Macchi v. LaRocca, 54 Cal.App. 98, 201 P. 143; Coats v. Coats, 160 Cal. 671, 675, 118 P. 441, 36 L.R.A.,N.S., 844; Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 11 A.L.R. 1386; Figoni v. Figoni, 211 Cal. 354, 295 P. 339; Bacon v. Bacon, 21 Cal.App.2d 540, 69 P.2d 884; Santos v. Santos, 32 Cal.App.2d 62, 65, 89 P.2d 164; Sanguinetti v. Sanguinetti, 9 Cal.2d 95, 69 P.2d 845, 111 A.L.R. 342; Fung Dai Kim Ah Leong v. Lau Ah Leong, 9 Cir., 27 F.2d 582. In each case the putative wife had gained her marital status in good faith, innocently believing that she was entering into a legal alliance or that she had complied with the necessary requirements of a lawful marriage. In each of such cases the attempt of the unfortunate woman had failed through no moral obliquity of her own but because of the lack of intelligence of both parties, or because of legal barriers against the union or because of the fraud of her de facto spouse in inducing her to embark with him upon the proposed marital venture. Plaintiff's case does not come within any category covered by the cited authorities.

But the decision of Flanagan v. Capital National Bank, 213 Cal. 664, 3 P.2d 307, is directly in point. There an adventuress, an experienced mistress, established a domestic hearthstone with the decedent Flanagan. She acted upon his proposal that “We will get along as good as any couple that is married,” and thereafter they never discussed it. “* * * she viewed the relationship not as a marriage but as a satisfactory substitute for a marriage.” (213 Cal. page 667, 3 P.2d page 308.) So also was Marian Vallera wise in the ways of the world. So also did she consider her tie to Concezio only a substitute for lawful wedlock. There is nothing in her conduct, from the moment she met her paramour to the day he deserted her, that entitled her to the aid of equity, except her unshaken loyalty and devotion to the two children she had borne. But that fact is not available to her as a basis for exacting profit from a bold and unlawful undertaking which she has chosen to denominate a marriage.

That portion of the judgment appealed from is reversed.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concurred.