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


Civ. 14877, 14895.

Decided: October 29, 1945

Jerry Giesler, Meyer M. Willner, Joseph Scott, and J. Howard Ziemann, all of Los Angeles, for appellant. Meserve, Mumper & Hughes, Roy L. Herndon, Frank P. Doherty, and William R. Gallagher, all of Los Angeles, for respondent.

The court below denied plaintiff's prayer for a divorce after sustaining defendant's plea in bar that the marriage of the parties had been dissolved by a valid decree of the District Court of Washoe County, Nevada, on December 16, 1939. After filing notice of appeal appellant initiated a proceeding to procure an order requiring defendant to pay her expenses for prosecuting her appeal including fees for the appellate service of her attorneys and the costs of printing their briefs. Judge Mosk made the order which she requested and from this defendant also appeals. Both appeals were consolidated for decision.

We are now to determine (1) whether the evidence justified the finding that defendant had in good faith established his domicile in Nevada at the date of the decree entered in the Washoe District Court; (2) whether that decree was final and entitled to full faith and credit or was open to collateral attack; (3) whether plaintiff was entitled to suit money for her appeal in spite of the judgment that the parties had been divorced in December, 1939.

The parties were intermarried October 27, 1937, in Arizona and separated January 24, 1939, at Los Angeles where they had maintained their home. There was no issue of the alliance but plaintiff had been twice divorced and had three children of the prior marriages. They were supported by their respective fathers.

Defendant Established a Domicile in Nevada

In support of his allegation that he had in good faith established a domicile in Nevada in 1939 defendant testified that some months prior to July 1, 1939, he decided to change his place of permanent residence to Nevada and made a number of visits to that state in search of properties for himself and for his mother; that about the last-mentioned date he departed with all of his belongings from Los Angeles for Reno where he established his residence in a prominent hotel; that thereafter he successively occupied apartments at two different well-known addresses in that city; that he voted at Reno in the national election of 1940, having registered as an elector of Nevada; that he paid all federal income taxes accruing after his arrival to the Collector of Internal Revenue at Reno and personal property taxes levied by the authorities of Washoe County; that in all his returns for national income taxes he gave his living quarters in Reno as his place of residence. Immediately upon arrival in Nevada and in the subsequent years he registered his automobile with the motor vehicle department of that state, always giving his local address as the place of his residence. Also he opened, and has continuously maintained, a commercial account with a local bank and has there at all times kept a safety deposit box. In registering under the National Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., in good faith he gave his post office box at Reno as his address. He testified that he had continuously resided in Reno except at the times of three temporary absences and on each of those departures he intended to return to that city as the place of his permanent abode and that upon the return of peace he will resume life there.

When he applied for a license to be married in Manasas, Virginia, March 5, 1940, he entered upon his application his Reno residence as his address. Thereafter he lived with that wife and her three children in Reno until her death in December 1940. When he procured a license to wed his present wife at Chicago, May 12, 1941, he again gave his address as Reno, Nevada, and there subsequently with her maintained a home at a popular hotel.

In support of defendant's testimony nine other witnesses residing in Reno were called. Ernest Bingham testified that he and defendant occupied the same apartment for about nine months after September 1, 1939. During the fall of 1939 he accompanied defendant to inspect several properties and introduced Mr. Baldwin to tenants, owners and experts in land values with whom he consulted. They visited a property adapted to the use of a health resort and checked as to its value and the cost of suitable improvements. During the same time he actively participated in local politics. Henry Bennett advised defendant with reference to properties on numerous occasions in the autumn of 1939 and until he entered the army. Raymond Knisley accompanied defendant on several trips to Nevada in the spring of 1939 in search of properties for defendant's mother and for themselves. The other witnesses gave proof of his continuous residence in Reno and of his civic activities there subsequent to his arrival.

The Evidence is Sufficient

Such evidence abundantly supports the finding that defendant had in good faith established his domicile in Nevada at the time of his divorce by the court at Reno. The question of whether a former resident of California established a legal domicile in good faith in another state prior to his obtaining a decree of divorce there is one of fact. A finding that a party had established a domicile in another state based upon substantial evidence will not be disturbed on appeal. Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923; Windsor v. Windsor, 42 Cal.App.2d 464, 109 P.2d 363. Nor will a suspicion of fraud in the prosecution of a divorce action by such party in the foreign jurisdiction avail to defeat the foreign decree or the California court's finding as to its validity. Plante v. Plante, 54 Cal.App.2d 318, 128 P.2d 787; Galloway v. Galloway, 116 Cal.App. 478, 2 P.2d 842. Moreover, a decree of a court of competent jurisdiction regular on its face is presumptively valid. Plante v. Plante, supra; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. While it is subject to attack on the ground of fraud, yet fraud is not to be presumed but must be proved affirmatively. Galloway v. Galloway, supra, 116 Cal.App. page 480, 2 P.2d 842. Inasmuch as the recitals in the Nevada decree of defendant's divorce betray regularity it could have been impeached only by positive evidence of fraud in proving jurisdictional facts.

Appellant earnestly contends that inasmuch as her innocence of blame and respondent's culpability for their domestic infelicities were established in the court below she was therefore entitled to a decree on the merits because California was the ‘matrimonial domicile’ and she was not present at the trial in Nevada. Citing Delanoy v. Delanoy, 216 Cal. 27, 13 P.2d 719, 86 A.L.R. 1321. Not only did she neglect to cite Cardinale v. Cardinale, 8 Cal.2d 762, 68 P.2d 351, but she ignored the doctrine that ‘the question as to where the fault lies has no relevancy to the existence of the state power in such circumstances.’ The power of a state court to dissolve the marital status is not dependent on whether the plaintiff is able to establish such facts as will entitle him to a decree. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273; Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347. Every citizen of the United States has the right to establish his domicile in any state of the Union (U. S. Constitution, Amendment XIV, Sec. 1) and when he has once satisfied the court that he has honestly done so he is entitled to have his marital rights adjudicated there according to the law of the forum. Such state may not deny him ‘the equal protection of the laws.’

Appellant argues (1) that it was not the court's intention in Williams v. North Carolina ‘to oust the rightful jurisdiction and sovereignty of a state over the marital status of its domiciled residents' and (2) that it did not intend ‘to sanction or make it proper for a wrongdoing spouse to flaunt and defeat the sovereign jurisdiction of a state over the marital status by fleeing to a state of easier divorce and there, through the use of fraudulent testimony, dissolve the status in which the state from which he fled has so vital an interest and over which it rightfully exercises so jealous an authority.’ These are eloquent phrases but they are not consonant with the declaration of the court that the Williams case must be treated ‘precisely the same’ as if Williams had long ago acquired a permanent abode in Nevada. 317 U.S. 287, 63 S.Ct. 210, 87 L.Ed. 282, 143 A.L.R. 1273. Nor is the language of appellant consistent with that used by Chief Justice Marshall, to wit: ‘* * * the judgment of a state court should have the same credit, validity and effect, in every other court in the United States, which it had in the state where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States.’ Hampton v. McConnell, 3 Wheat. 234, 235, 4 L.Ed. 378.

The Nevada Decree is Entitled to Full Faith and Credit

The state of such new domicile is all powerful to dissolve a marriage irrespective of the state in which it was contracted (Williams v. North Carolina, supra), and the judgment entered, right or wrong, is ‘a conclusive adjudication of everything except the jurisdictional facts upon which it is founded * * *.’ Id., 325 U.S. 226, 65 S.Ct. 1092, 1096, 157 A.L.R. 1366. It follows that since the Nevada court had jurisdiction to enter a final judgment on the merits, even though it effectively changed the marital status of defendant, such judgment is entitled to full faith and credit in California. U. S. Constitution, Article IV, section 1. Therefore it constituted a bar to a judgment on the merits by the court below. In truth, appellant's argument ignores the very purpose of the full faith and credit clause which was ‘to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by judicial proceedings of the others, and to make them integral parts of a single nation. * * *’ [317 U.S. 287, 63 S.Ct. 211].

The significance of the cited case of Williams v. North Carolina is clarified by the later fortunes of that litigation. Subsequent to the reversal of the North Carolina conviction of Mr. Williams and Mrs. Hendrix (317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273) the prosecution proceeded upon the theory that the Nevada court which had granted both of them divorces from their former spouses had not obtained jurisdiction for the purpose of divorce because their residence in the latter state was not a bona fide domicile but a temporary sojourn to satisfy the statutory residential requirement. Upon that issue the jury decided in accordance with the state's contention. A legal conviction of the couple resulted from a finding of the fact that by reason of their fraud the Nevada Court did not have jurisdiction of the parties at the time of granting their divorces. 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366. Likewise, it may be assumed that if Mrs. Baldwin had successfully proved that defendant had not established a domicile prior to the decree of December 16, 1939, the court below would have adjudicated the merits of her complaint.

Plaintiff Barred From Proving the Merits of Her Case

The foregoing disposes of appellant's third point that it was error for the court to reject proof designed to establish that respondent was the wrongdoer. Such evidence would have been addressed to the merits of the controversy and that had already been adjudicated by the Nevada court which had acquired jurisdiction by virtue of defendant's established domicile. The Delanoy case is no longer authority, having grown into disuse as the result of the first Williams decision, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. The judgment can only be affirmed.

The Order for Suit Money is Illegal

Two and a half months after entry of judgment and one month after filing her notice of appeal plaintiff caused to be issued an order to show cause why defendant should not be required to pay the expenses of her appeal out of his separate estate, it having been already conceded that there was no community property. For two reasons such order should not have been made: (1) Having shown that she was the recipient of $900 monthly in addition to the support money for her children and that she possessed over $2,000 at the time of demanding such order, the requested allowance was not necessary to enable her to prosecute the appeal. The purpose of section 137, Civil Code, is to enable the wife properly to present her cause. Mudd v. Mudd, 98 Cal. 320, 322, 33 P. 114. An order requiring such payment is dependent as much upon the wife's necessity as upon her husband's ability. 27 C.J.S., Divorce, § 222, p. 924. (2) The very judgment from which the appeal had been taken decided that the defendant was not plaintiff's husband after December 16, 1939. That adjudication was in turn predicated upon the finding that the parties had been divorced by valid decree on December 16, 1939. Before an order on behalf of the wife for suit money may be made under section 137, in addition to proving her necessitous circumstances she must also show that the defendant is her husband and that the action to be prosecuted is for a divorce or separate maintenance. Carbone v. Superior Court, 18 Cal.2d 768, 771, 117 P.2d 872, 136 A.L.R. 1260; Hite v. Hite, 124 Cal. 389, 57 P. 227, 45 L.R.A. 793, 71 Am.St.Rep. 82. Before making such order the court must first determine from the entire evidence that plaintiff is the wife of defendant. Hite v. Hite, supra. To allow her suit money for the purpose of enabling her to prove that she is respondent's wife is ‘a glaring absurdity.’ Hite v. Hite, supra, 124 Cal. at page 394, 57 P. at page 230, 45 L.R.A. 793, 71 Am.St.Rep. 82, Chief Justice Beatty's concurrence. If in the first action of spouses for divorce the court must ascertain that the woman is the wife of the man before ordering the payment of suit money to her, surely such order will not be made where it has already been adjudged by a competent court that he is not her husband.

To overcome the disadvantage of the foregoing principles plaintiff contends that the marital status referred to in section 137, Civil Code, refers to the time of the filing of the complaint. Such construction is neither compatible with a reasonable interpretation of the statute nor with the decisions of our courts. The application for suit money or for other aid desired by the wife ‘is a proceeding for separate judgment, which, when granted, has nothing to do with the final judgment in the case.’ Baker v. Baker, 136 Cal. 302, 304, 68 P. 971, 972. The decree denying plaintiff relief and holding that defendant had been divorced from plaintiff December 16, 1939, had been entered August 4, 1944. She initiated the proceeding on October 16, 1944, for an order requiring defendant to pay her suit money and costs on appeal. At the hearing she was met not only by the Nevada decree which was presumptively valid but by the judgment here on appeal declaring that such decree had effectively dissolved the marriage of the parties. Upon such undisputed documentary evidence, which in itself spelled finality, the court had no discretion to make an award of money to be paid by defendant and should have denied the application.

The Bancroft case (Bancroft v. Bancroft, 9 Cal.App.2d 464, 50 P.2d 465) relied upon by plaintiff is of no value here. The testimony of that husband given to prove that there had been no marriage was insufficient to overcome the wife's proof that there had been a marriage. Consequently the court there had no alternative but to make the award.

It is ordered that the judgment appealed from in case 14877 be and it is hereby affirmed.

It is ordered that the order appealed from in case numbered 14895 requiring defendant to pay plaintiff and her attorneys the moneys therein specified be and the same is hereby reversed with instructions to enter a dismissal of the proceeding.

MOORE, Presiding Justice.

McCOMB, J., and FOX, J. pro tempore, concur.

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