COLBERT v. COLBERT

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District Court of Appeal, Second District, Division 3, California.

COLBERT v. COLBERT.

Civ. 14791.

Decided: October 31, 1945

Clarence Hansen, of Los Angeles, for appellant. Michael Rudolph and Daly B. Robnett, both of Los Angeles, for respondent.

Defendant appeals from an order of August 14, 1944, that he pay alimony pendente lite, attorney's fees and costs. He also appeals from an order of September 1, 1944, denying his motion to vacate the order of August 14, 1944.

Plaintiff filed a complaint for separate maintenance on July 21, 1944, and the complaint and summons were duly served on the defendant. An order directing defendant to show cause on August 14, 1944, why he should not pay alimony pendente lite, attorney's fees and costs was also duly served on defendant. Upon the hearing of the order to show cause on August 14, 1944, the court ordered that defendant pay to plaintiff the sum of $22.50 per week as alimony pending the trial but not to exceed three months, and to pay $125 as attorney's fees and $25 as costs.

Defendant contends that the court did not have jurisdiction to award alimony or attorney's fees or costs for the reason that plaintiff was not the wife of defendant.

The record on appeal, as to the documents before the court at the hearing on the order to show cause, includes only the complaint. The record as to that hearing also includes the order of the court made as a result of the hearing, but it does not include any affidavits of the parties, or a reporter's transcript, or a settled statement or record of the proceedings had at that hearing. The complaint alleged that the plaintiff and defendant intermarried at Benton, Texas, on May 3, 1940, and ‘ever since have been and are now husband and wife.’ The defendant had not answered the complaint at the time of the hearing on August 14th. (His default was entered the next day but the default was set aside on September 15, 1944.) There is a presumption in favor of the validity of the order of the court made on August 14th. The record as to the matters before the court at the time of the hearing on August 14th is sufficient to support the order of the court. In his opening brief defendant asserts that he told the court at the hearing of the order to show cause that plaintiff had obtained a divorce from defendant in Texas on June 27, 1941, and that he exhibited to the court a postal card from the clerk of the Texas court stating that plaintiff and defendant had been divorced. Since the record on appeal as to that hearing does not include those asserted matters, this court cannot consider defendant's recital of them.

On August 22, 1944, defendant filed a motion to set aside the order, which had been made on August 14th ‘upon the ground’ that the court had no jurisdiction to make said order, and ‘upon the further ground’ that plaintiff and defendant were not husband and wife when the order was made or when the action was commenced. Said motion stated further that it would be ‘made upon’ the files and records of the action, the affidavit of defendant filed concurrently therewith, and a certified copy of the final judgment of divorce entered in the Texas court. The affidavit of defendant, referred to in said motion, was also filed on August 22, 1944, and it stated, among other things, that at the hearing of the order to show cause on August 14th, the plaintiff and her counsel were present and defendant appeared without counsel; that at said hearing ‘the court was advised that plaintiff and defendant were not husband and wife and subsequent thereto were divorced in Texas, however the above entitled court, nevertheless proceeded with the hearing of the order to Show Cause’; that he and the plaintiff were divorced in the State of Texas and that a final decree of divorce was entered in cause number 32312–A, entitled Ruth Colbert v. J. W. Colbert, as the same appears in volume C–23, page 149, minutes of the District Court at Fort Worth, Texas; and that on August 14th, when the order to show cause was heard, and on July 21, 1944, when the present action was filed, he and plaintiff were not married to each other.

On September 1, 1944, the affidavit of plaintiff in opposition to said motion of defendant was filed and it stated, among other things, that the alleged decree of divorce was for convenience only, being obtained with the understanding they would continue as husband and wife and that ‘the divorce would be a mere formality to comply with the employment laws of the United States'; that ‘it was secured by reason of the fact that the government regulations did not permit two employees belonging to the same family in the same establishment’; that it was agreed that plaintiff would secure a decree of divorce from defendant but their marital relations would not be disturbed; that they were married two months prior to the divorce and had not been separated since the marriage on May 3, 1940, until their separation in Los Angeles on July 8, 1944; that after the divorce they lived together about two years as husband and wife in the State of Texas; and that prior to the hearing on August 14th, her attorney in her presence offered to continue the hearing if defendant wanted to get an attorney but defendant declined the offer stating that he did not need an attorney and he would pay nothing.

At the hearing of the motion to vacate, on September 1, 1944, the defendant testified that he and plaintiff were married on May 3, 1940, at Benton, Texas; that they were divorced and he did not remarry plaintiff. An exemplified copy of a decree of divorce entitled, ‘In the 96th Judicial District Court of Tarrant County, Texas. Ruth Colbert (Plaintiff) v. J. W. Colbert (Defendant) No. 32312–A,’ showing that the decree of divorce was granted on June 27, 1941, was offered in evidence by defendant and it was received. It appears that it was conceded the parties mentioned in that decree were the same parties who are plaintiff and defendant herein. The defendant testified further that after the marriage and before the divorce he lived with her about six months; that after the divorce they lived together about half the time, and held themselves out to the public as Mr. and Mrs. Colbert, and they ‘split the bills' for the place where they were living; and that there was a separation at the time of the divorce.

At the hearing of that motion the plaintiff testified that the divorce ‘was at one month’ after they were married; that plaintiff and defendant were doing government work and it was against the rules for a husband and wife to have such employment; that the divorce was secured in order to keep their employment. In answer to the question, ‘was there any separation at the time [of the divorce]?’ she replied, ‘No. We only separated for about 3 weeks and he was looking for a job, we lived together all the time.’ She testified further that they were together constantly in the State of Texas from the time of the divorce until April 8, 1942, when she came to live in Los Angeles (a period of approximately nine months and not approximately ‘two years' as she had stated in her affidavit); that ‘I lived—we lived here in—he has been paying the rent, but signed my name.’

Thereupon the court denied the motion to vacate the order of August 14th.

Upon the hearing of the motion to vacate on September 1st, it was established by the exemplified decree of divorce and the admissions of plaintiff that on June 27, 1941, the plaintiff herein obtained a decree of divorce from defendant herein dissolving the contract of marriage made between them at Benton, Texas, on May 3, 1940. The action herein for separate maintenance was based specifically upon the contract of marriage which was dissolved by that decree. The court's power to order payment of alimony, counsel fees and costs may be exercised only in favor of a husband or wife. Civ.Code, sec. 137. In Carbone v. Superior Court, 18 Cal.2d 768, at page 771, 117 P.2d 872, at page 874, 136 A.L.R. 1260, it was said ‘* * * the existence of the marriage is a jurisdictional prerequisite for the right of the court to order support, costs, and counsel fees pendente lite in an action for divorce.’ In the case of Talbot v. Talbot, 218 Cal. 1, 21 P.2d 110, a separate maintenance action, wherein an order for alimony and counsel fees pendente lite was made, defendant filed as an exhibit a certified copy of a final decree of divorce in a certain action entitled Joseph Jay Pausner v. Esther Roof Pausner. The defendant Talbot contended that said decree showed that Esther Talbot, the plaintiff in the Talbot case, was a married woman at the time of her alleged marriage to the defendant Talbot, and therefore that the essential basis for the action of Talbot v. Talbot, namely, the marriage relation, could not exist. The court said at page 3 of 218 Cal., at page 110 of 21 P.2d: ‘The point would be well grounded if there were any showing that the plaintiff [Esther Talbot] in the present action and the defendant [Esther Roof Pausner] in the former action were one and the same person.’ In the matter of Ex parte Cook, 42 Cal.App.2d 1, 108 P.2d 46, the petitioner sought his release in habeas corpus from a commitment for contempt for failure to comply with an order for payment of alimony and suit money pendente lite in a divorce action. It appeared therein that the marriage, which had been the basis for the order for alimony and suit money, was void for the reason that petitioner was married to a person other than the plaintiff in the divorce case when he and the plaintiff were married, and that plaintiff had knowledge of such other marriage when she married the petitioner. The court therein said, 42 Cal.App.2d at page 3, 108 P.2d at page 47: ‘The undisputed record before us discloses that the petitioner is not now and never has been the husband of Hilda [the plaintiff in the divorce action] * * * that the superior court was * * * without jurisdiction to order petitioner imprisoned for failure to comply with the illegal award of alimony and suit money.’ The case of Parmann v. Parmann, 56 Cal.App.2d 67, 132 P.2d 851, 852, was an action, in the alternative, for an annulment or divorce. The appeal therein was from an order that, pending the trial, defendant pay attorney's fees and court costs. The allegations of the complaint therein and the testimony of the parties showed indisputably that the marriage was void. It was held therein that ‘The court is without jurisdiction to order such payments.’

It having been established by undisputed evidence that the relationship of husband and wife, as a result of the alleged marriage of May 3, 1940, did not exist when the order of August 14th was made, the court was without jurisdiction to make the order of August 14th.

Even though an order pendente lite for alimony, counsel fees and costs is appealable the court had power to vacate such order on the ground of lack of jurisdiction. In the case of Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, 8 P. 709, a divorce case, wherein an order for alimony and counsel fees pendente lite had been made, it was held (67 Cal. at page 196, 7 P. at page 462) that such an order ‘possesses all the essential elements of a final judgment’ and (67 Cal. at page 199, 7 P. at page 465) ‘is an appealable order.’ It was said further therein (67 Cal. at pages 195, 196, 7 P. at page 462) that, ‘If the court had afterwards found that the marriage relation never existed between the parties, that would not have affected the order for the payment of temporary alimony. It would have afforded good ground for vacating it.’ It is true as respondent asserts that, the defendant having been duly served with summons, the complaint and the order to show cause, and having appeared generally at the hearing on the order to show cause, the court had jurisdiction of the parties; however, the question of jurisdiction under section 137 of the Civil Code to order the payment of alimony, counsel fees and costs did not depend solely upon jurisdiction of the parties but depended upon the relationship of husband and wife existing between the parties. The question here presented is one of jurisdiction under section 137, and not the erroneous exercise of jurisdiction. The plaintiff herein, with full knowledge that the marriage contract of May 3, 1940, made at Benton, Texas, had been dissolved (upon her petition), alleged herein the continued existence of the marriage; and in order to suit her immediate convenience, in asking for separate maintenance in California, she ignored the decree of the Texas court and sought to treat that formal decree of a court of competent jurisdiction as a mere matter of form. Her position is that she obtained the decree of divorce in order to meet her convenience in Texas in proving that she and the defendant were not husband and wife; and that the decree was of no value in California as proof of what it recited, if such proof did not meet her convenience.

The court should have granted the motion to vacate the order of August 14th. The order of September 1, 1944, denying defendant's motion to vacate the order of August 14, 1944, is reversed, and it is hereby ordered that the order of August 14, 1944, be and the same is hereby vacated.

As above stated, the record as to the matters before the court at the time of the hearing on August 14th is sufficient to support the order of the court made on that day; however, since that order has been vacated by this court the question on the appeal from the order of August 14, 1944, is moot, and therefore the appeal from the order of August 14th is dismissed.

I dissent. Although the main opinion correctly holds that an order for temporary alimony and attorney's fees should be vacated upon satisfactory proof that there had been no marriage of the parties, it does not touch upon the real ground for the order denying the motion to vacate. The trial judge no doubt refused to vacate the original order for the reason that he considered the evidence to be sufficient to show a common law marriage subsequent to the divorce. I think the evidence was clearly sufficient to meet the requirements for proof of marriage upon an application for a temporary order. Plaintiff stated in her affidavit that the divorce was obtained in order to circumvent government regulations, ‘which did not permit two employees belonging to the same family in the same establishment,’ and that ‘it was thereupon agreed that plaintiff would secure from the defendant a decree of divorce, but that their marital relations should not in any way be disturbed,’ and ‘that such divorce was had with the understanding that the parties would continue as husband and wife and that the divorce would be a mere formality to comply with the employment laws of the United States.’ This evidence was uncontradicted. Plaintiff's affidavit further stated that she and defendant continued to live together in the same dwelling in the relation of husband and wife and that they held themselves out to the public generally as such and that they lived under these conditions in Texas for approximately two years after the decree of divorce. Upon the hearing plaintiff testified that she and the defendant were separated for about three weeks at the time of the divorce and that thereafter they ‘lived together all the time, every day and every night.’ Defendant testified that they only lived together about half the time after the divorce and that they held themselves out as husband and wife. Plaintiff's evidence as to the agreement under which the parties continued to live together as husband and wife was not contradicted by defendant and, although plaintiff was not questioned as to the words in which the agreement was expressed, the trial judge was justified in drawing the inference that there was an agreement to marry. The circumstances of the case furnished strong evidence that during the three years the parties lived together after the divorce, two of which were spent in Texas, they regarded themselves as husband and wife. It is undisputed that they held themselves out as husband and wife and lived openly in that relationship. The conduct of the parties after the decree was granted was sufficient to prove a marriage under the laws of Texas. It is not questioned that the law of Texas is as stated in the syllabus in Bobbitt v. Bobbitt, Tex.Civ.App. 1920, 223 S.W. 478, as follows: “Marriage' is a status, the living together of a man and a woman as husband and wife, under an agreement, express or implied, which need not be solemnized by any ceremony, or be under license from the state, where the agreement is made effective by the parties living together publicly as husband and wife.' The evidence to prove a marriage need not be as complete and satisfactory upon an application for temporary support as that required to prove a disputed marriage upon a trial. Carbone v. Superior Court, 1941, 18 Cal.2d 768, at page 772, 117 P.2d 872, 136 A.L.R. 1260. There was no testimony except that given by the parties but the court was justified in believing that if additional evidence had been produced it would have been corroborative of the testimony of plaintiff and of the admissions of defendant. Defendant offered no evidence that there was not an agreement of marriage, and corroboration of his testimony that the cohabitation as husband and wife extended over only one-half of the two-year period of the residence in Texas would not have required a finding that he and plaintiff did not enter into a common law marriage. Although the complaint pleaded the ceremonial marriage, all of the evidence as to the claimed common law marriage was considered by the court without objection that it was not pleaded. If that objection had been made, plaintiff would have been entitled to amend her complaint to allege the common law marriage, if, indeed, an amendment would have been required. The point of alleged variance, not having been raised at the hearing, was waived. In my opinion, the order should be affirmed.

PARKER WOOD, Justice.

DESMOND, P. J., concurs.