BIEWEND v. BIEWEND

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District Court of Appeal, Third District, California.

BIEWEND v. BIEWEND.

Civ. 6288

Decided: April 02, 1940

Gumpert & Mazzera and C.H. Hogan, all of Stockton, for appellant. Charles H. Epperson and Lawrence Edwards, both of Stockton, and Nathan H. Snyder, of Los Angeles, for respondent.

Plaintiff, Lottie C. Biewend, was, until May 10, 1918, the wife of defendant, Adolph C. Biewend. Upon that day in the state of Missouri, she obtained a decree divorcing her from defendant, and providing, among other things, for the payment to her of $25 each week, for the support of herself and their four minor children. Thereafter, in October, 1938, in the county of San Joaquin, she filed an action based upon the Missouri decree for all money unpaid under that decree, and recovered a judgment for the instalments that had accrued within five years prior to the beginning of the California action, and an order for the payment to her of the sum of $25 a week from the date of the judgment in this state.

It appeared from the findings that subsequent to the divorce, Lottie C. Biewend had, in 1919, in the state of Kansas, married one Frank Zumwalt, and lived with him as his wife until 1921, when she divorced him. Thereafter, and in July, 1922, plaintiff, then Lottie C. Zumwalt, without a marriage ceremony, resumed marital relations with Biewend and lived with him for approximately two years, when they came to California, where they continued to live together for two more years, when they again separated.

It was also apparent from the record that the youngest child had reached his majority in 1928, approximately ten years before the action in California was commenced.

Appellant first contends that the marriage of plaintiff to Zumwalt relieved him, her former husband, of any further obligation under the judgment of divorce, to thereafter pay her anything for her own support or maintenance.

Secondly, that plaintiff could not collect from the defendant for the support and maintenance of the children after they had reached the age of majority, and also that the action is barred by the statute of limitations.

Thirdly, that if plaintiff is entitled to collect anything she is not entitled to the full amount specified in the judgment, which was for herself, and for the minor children, and as all of the children have now reached the age of majority, there is nothing upon which a court could base a judgment for a less amount, except by speculation.

The divorced wife of defendant, within approximately eighteen months after the final decree, married one Frank Zumwalt. Did such marriage automatically release defendant from his legal obligation to comply with the order of the Missouri court whereby he was directed to pay to plaintiff the sum of $25 each week for the support of herself and her minor children?

Respondent insists that under the rule of comity and the full faith and credit clause of the Constitution of the United States, art. 4, § 1, the obligation rests upon the courts of California to recognize and enforce the judgment of the state of Missouri as it would have been in the state where rendered. Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220; 34 Cor.Jur. 1128, 1129.

Respondent also relies upon several California cases which lay down the rule that the courts of this state will recognize and enforce decrees for alimony from foreign states. Palen v. Palen, 12 Cal.App.2d 357, 55 P.2d 228; Rinkenberger v. Rinkenberger, 99 Cal.App. 45, 277 P. 1096; Barns v. Barns, 9 Cal.App.2d 427, 50 P.2d 463; Creager v. Superior Court, 126 Cal.App. 280, 14 P.2d 552; Cummings v. Cummings, 97 Cal.App. 144, 145, 275 P. 245. With the principles there announced we are in accord. The courts of this state do recognize the judgments of our sister states. It would result in an inextricable confusion if each state was encouraged to modify, amend or change the decree originally granted by a sister state, and consequently the party aggrieved should ordinarily seek his relief in the court which first gave the decree its vitality.

By the provisions of section 1875, subdivision 3, of the Code of Civil Procedure, the courts of this state take judicial notice of the laws of the several states, and the interpretation thereof by the highest court of appellate jurisdiction within such state, and we find no statute nor decision in Missouri holding that a subsequent marriage of the wife absolves a husband from making payment of alimony to her. Normally under such circumstances, the courts of this state would promptly enforce a judgment of a sister state, impelled to do so by the constitutional direction of our state and federal Constitution, and the rules of comity existing between the several states. However, we have a direct declaration of policy found in section 139 of the Civil Code to the effect that upon the remarriage of the wife the husband shall no longer be obligated to provide for her support. In the Slaughter House cases, 16 Wall. 36, 77, 21 L.Ed. 394, it is said: “Its sole purpose [of the constitutional provision guaranteeing equality of privileges and immunities to the citizens of the several states] was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”

In 5 Ruling Case Law 911, section 5, it is said: “In the recognition and enforcement of foreign laws the courts are slow to overrule the positive law of the forum, and they will never give effect to a foreign law when to do so would prejudice the state's own rights or the rights of its citizens, or when the enforcement of the law of the forum, whether that policy be reflected in statutory enactment or not.”

In Hudson v. Von Hamm, 85 Cal.App. 323, 259 P. 374, the question of faith and credit between the states and the question of comity is well considered.

In Tremper v. Tremper, 39 Cal.App. 62, 177 P. 868, 869, the court declared: “The plaintiff's duty toward his wife is to support her while she remains single or until she dies. If she marries again, or if she dies, that duty toward her will terminate.”

In Parker v. Parker, 203 Cal. 787, 266 P. 283, the reviewing court refused to uphold an order directing that execution issue to collect instalments of alimony accruing after the marriage of appellant to another. In Atlass v. Atlass, 112 Cal.App. 514, 297 P. 53, the defendant was directed in the final divorce decree to pay to plaintiff, his wife, certain monthly payments. Thereafter the divorced wife remarried. The former husband moved to modify that portion of the decree compelling him to make payments of alimony. The trial court refused to change the decree, but upon appeal the Supreme Court held that good public policy would not compel a divorced husband to support his former wife after she became another man's wife, except under extraordinary circumstances, and that the burden of making such a showing was upon the former wife. The court cited in support of this rule, California Jurisprudence, volume 1, page 1039, and Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann.Cas. 520.

In Hale v. Hale, 6 Cal.App.2d 661, 45 P.2d 246, 247, the parties were divorced. The former husband became delinquent in certain payments he was ordered by the decree to make for the support of the plaintiff and her minor children. The plaintiff had remarried and the children had become of age. The trial court directed that execution issue against the husband. The reviewing court set aside that order, holding that the husband's duty to support his wife terminated with her remarriage, and his duty toward his children terminated as to them as the last child attained its majority, and since the remarriage of the former wife she had been presumptively supported by her present husband, and plaintiff had made no attempt to overcome that presumption.

From the foregoing authorities and the underlying principles of comity and good faith, although we in California cannot modify or change the decree of Missouri we can refuse to enforce the particular provision that is in conflict with our statutory idea of public policy.

Furthermore, from the findings it appears that the youngest child reached the age of majority in 1928. The decree does not specify what part of the $25 payable each week was for the support of the children and what part for the support of the wife, and as stated in Hale v. Hale, supra, for the court now to determine what was personally due and necessary for plaintiff after 1928, “would be to indulge in speculation and guess, and such determination is clearly not the province either of this court or of the trial court”.

The trial court in the instant case entered judgment against defendant for all sums accruing under the judgment during the period of five years immediately preceding the filing of this action. As the youngest child was then over twenty-one years it would appear that the amount necessary for the support of the former wife was so uncertain as to prevent the issuance of a judgment thereon.

In Evans v. Evans, 116 Wash. 460, 199 P. 764, 765, a case strongly relied upon by appellant, plaintiff brought an action to recover alimony claimed to be due under a judgment of divorce rendered by the courts of Illinois. The judgment provided that defendant pay to plaintiff $60 each month for the support and maintenance of herself and her minor children. The elder child attained the age of majority on March 18, 1911. An action on the judgment was commenced April 12, 1911. On appeal, the Supreme Court of Washington held the amount to which plaintiff was justly entitled could not be ascertained, and until so determined she was not entitled to recovery of the full amount. The court there said: “The question in the case is whether the respondent had the right to recover under the decree the amount there specified after one of the children, or both, had reached the age of majority. * The decree does not segregate the amount which was intended for the maintenance and education of the children or either of them from the amount which was intended for the support and maintenance of the appellant. * But the question is, can a recovery be had after one of the children becomes of age when the decree does not make a segregation. After the first child became of age the liability of the respondent under the decree for the maintenance and education of that child ceased. Likewise with reference to the second child. C.J. vol. 19, p. 360.”

Without discussing other points raised by appellant, it would appear that plaintiff is not entitled to recovery, and the judgment must be reversed. It is so ordered.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; TUTTLE, J.

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