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


Civ. 14413.

Decided: May 31, 1945

Victor A. Gillespie and Lester E. Hardy, both of Los Angeles, for appellant. Otto A. Gerth, of Los Angeles, for respondent.

Plaintiff appeals from a judgment denying her any relief in an action for separate maintenance.

Plaintiff and defendant were married in 1925 and lived principally in Grand Rapids, Michigan, until June, 1931. At that time plaintiff, with her daughter by a former marriage, returned to her former home in Stamford, Connecticut, where she resided continuously to July, 1942, when she came to Los Angeles, California. Defendant was in the garage business in Grand Rapids for some years. On March 1, 1936, he sold said business and on or about the fifteenth of the month left Grand Rapids for Juarez, Mexico. He arrived in Juarez about April 1, 1936. On April 25, 1936, he filed an action in the Civil Court of Bravos District, State of Chihuahua, to obtain a divorce from the plaintiff herein, Helen M. DeYoung. He registered as a resident of Juarez three days later. On June 5, 1936, he was granted a divorce. He married Mrs. Lelia Marshall on February 26, 1937. They have since lived together as husband and wife in Los Angeles In the fall of 1937, plaintiff herein first learned that Mr. DeYoung had obtained said divorce and had remarried. She filed her complaint herein for separate maintenance on November 30, 1942. He set up, among other defenses, the said Mexican decree. The trial court sustained this defense and denied plaintiff any relief.

The Mexican decree, however, should not have been sustained because it clearly appears, on the record before us, that said decree was fraudulently procured, no proper notice being given Mrs. DeYoung of the divorce proceedings there. This condition went to the jurisdiction of the court. Delanoy v. Delanoy, 1932, 216 Cal. 27, 37, 13 P.2d 719, 86 A.L.R. 1321. As the plaintiff herein she is in a position to attack the validity of the Mexican decree which Mr. DeYoung offered as a defense because any judicial record may be impeached on the ground of either want of jurisdiction in the court or of fraud in the party offering it. Code Civ.Proc. sec. 1916; Stewart v. Stewart, 1939, 32 Cal.App.2d 148, 150, 89 P.2d 404; Ryder v. Ryder, 1934, 2 Cal.App.2d 426, 37 P.2d 1069; People v. Harlow, 1935, 9 Cal.App.2d 643, 50 P.2d 1052; Kegley v. Kegley, 1936, 16 Cal.App.2d 216, 60 P.2d 482; DuQuesnay v. Henderson, 1937, 24 Cal.App.2d 11, 74 P.2d 294; Cardinale v. Cardinale, 1937, 8 Cal.2d 762, 68 P.2d 351; Raps v. Raps, 1942, 20 Cal.2d 382, 125 P.2d 826; Rhea v. Millsap, 1945, 68 Cal.App.2d 449, 156 P.2d 941.

Mr. DeYoung in the instant case testified that he gave his attorney in the Juarez divorce proceeding and the court there the correct address of his wife. He knew her address for he was writing her letters, which she received, after he went to Juarez and even after he filed his divorce action. They were all mailed, however, from Grand Rapids. These letters, dating from a period about ten days prior to the sale of his garage in Grand Rapids until five days after he filed his divorce action in Juarez, demonstrate conclusively that his testimony in the instant case that he gave the Juarez court and his counsel there his wife's address is unworthy of any credence whatever. See, Hicks v. Ocean Shore R. R., Inc., 1941, 18 Cal.2d 773, 780, 117 P.2d 850.

These letters show that he was attempting to mislead and deceive his wife as to his interest in and affection for her, the likelihood of their going back together, the sale of his garage business, the prospect of his locating in the East, and more particularly, in the later letters, he sought to conceal from her and to deceive her as to where he was and that he was planning to and later had actually filed an action for divorce. No other conclusion can be drawn from them. For example, in a letter to her under date of February 18, 1936, which was eleven days before the sale of his business, he said in part: ‘Dear I hope you & Anita [her daughter by a former marriage] are OK and do please be careful & not get sick. Am glad you got Anitas coat. Do you know anymore about Furniture prices. Surely hope Vern can do something for us because it will save us so much money. Have been looking for a small house but not very plentiful but we will find something. Dear this is just a short note to you, and am sorry I have kept you waiting for a letter but being sick I could not help myself so please excuse me for not riting before. * * * Dear please rite me as I want to hear from you always and real often. I received your last letter just before I was taken sick. So will say bye bye for now and will be looking for your letter soon. Always Love & Kisses for you and Anita. As Ever Clarence.’ Another letter, dated March 20, 1936, which was nearly three weeks after he had sold his business and apparently after he had left Grand Rapids, for the findings show he left there on or about March 15, reads, in part, as follows: ‘Received your Tue and was glad to hear from you and will get money to you for Rent before the last of the month. * * * Expect to make a sale before long, and I am waiting for the time to come and then I can get going in the East and see & be with you again. Well my dear can't think of much to rite to-day but will do better the next time. I will send you another ck before the last of the week so you can pay for your rent and then a ck each week. Will that help a little my dear. Say Hello to Anita & the rest and here is love for you both. With Love Clarence. Am a little busy so could not rite much. Had to get up & down so much to wait on people. C.’ In an undated letter which, however, was written prior to April 15, defendant said this: ‘Received your letter Friday A. M. Glad to hear from you and that you are both well. * * * I may go to Rochester the 15th or 20th of April to look this Outfit over. Rochester is pretty good town. I believe I will like it so much better than G. R. I have been thru there one time and it did not look so bad. This place is downtown and is a going business and I understand I can get it at a good price because the party that owns it is getting along in years, and will turn it over to a younger man and the sale will be free & clear. * * * they [his folks] was wondering if I was going to New York or South America, as they know I have a chance to go there with a company from Philadelphia Penn. for five years, but I said no, in as much as I would like to go, but thought that would not be the proper thing to do, so thought I would land somewhere in New York. Well my dear this is Sat. A. M. and a little busy so Guess I will have to cut this short, so I can get this off to my dear lady Helen. Will rite latter, hope this ck will hlep. * * * here is kisses for you and Anita. With Love Always Clarence.’

In a letter dated ‘4/18/36 Mon. A. M.’ which was some two and a half weeks after he arrived in Juarez, according to his testimony, Mr. DeYoung wrote Mrs. DeYoung in part as follows: ‘Your letter came a couple of days ago and glad to get same. Also pictures of Anita. * * * Yes I still have the same buyer for the business, as I have a Deposit from him, he is waiting for the rest of his money, but from what he said I will not be long now. And when I am sure of it, I will take a trip East and look over the other proposition, and then I can let you know something about it. * * * Surely hope you are well, also stay that way. * * * Well my dear I will have to get busy now, as I have some of the boys go to lunch at this time 11:30 A. M. So I have to get down stairs and let the people out with their cars. They are all business people that store there cars with me and some of them go home to lunch. Well Dear stay well and here is my love to you & Anita. Will rite later. As Ever Clarence.’

In another letter dated ‘4/18/36 Sat. Noon’ which was seven days before Mr. DeYoung filed his action for Divorce in Juarez, this is what he wrote Mrs. DeYoung: ‘Your letter came a few days ago and glad to get it, I have been out of town for a couple of days, makeing a few collections & also getting some business. It is a bit slow rite now. * * * Well Helen I will be out of town for a few days. In fact for a week as I have a couple of propositions to look over and I am going to decide on one or the other so if you don't hear from me don't think anything of it. Wait until you hear from me before you rite and then send it to 1244 So. Lafayette Ave. E. Don't call me by phone because I don't work nites any more. * * * Well Helen will say bye bye for now. Will rite you later and let you know what I am going to do. Love to you & Anita. As Ever Clarance.’

Mr. DeYoung's next letter to his wife was dated April 30, 1936. This was five days after he had filed his action against her for divorce in Juarez, and two days after he had registered as a resident of that city. This letter, like the others, was mailed in Grand Rapids. Consisting of four pages, it reads, in part, as follows: ‘I want you to have your freedom and then you can do as you care to do, you have had it for five years now, and believe you are better off than I am, but that is my hard luck, and I must take what ever is handed out to me.

‘I will at least tell you were I am going, which is many miles away from anybody I know. In one of my letters to you I mentioned about So. America, well I have signed up with a Company to go there for ten years or more, which will be better for both of us. Of course I do not know if it will agree with me, but that is what I must find out for myself. So you see Helen that is why I want you to have your freedom, because I may never come back to U.S. alive if things don't work out for me as far as the climate is concerned. Some of the boys have had the fever and never came back, but time will tell for me, and that is one chance I have to take, so you see Helen that is why it is best for me not to see you again and why you must have your freedom. My time is getting short here now so will have to be on my way, so please Helen don't take this to hard, as it is the best way for both.’ All these letters were introduced as exhibits in the trial, but apparently their full significance escaped the trial judge. Particularly the last three or four of them show a deliberate plan and scheme to conceal from Mrs. DeYoung where he was and to mislead her into believing he was still in Grand Rapids. The letter of April 30th conceals from her the fact that five days previously he had filed suit for divorce in Juarez, and seeks to mislead her further by suggesting, in effect, that she get a divorce from him. He also attempts to mislead her by saying he is leaving soon for South America. With his plan and scheme of concealment and deception as to his whereabouts so carefully and completely worked out it is beyond belief that Mr. DeYoung gave his attorney in Juarez and the court his wife's address for that would have served to undo his fraudulent plan. If he had disclosed his wife's address to his attorney prior to or at the time of filing the action, there would have been no object in his writing the letter of April 30, 1936, suggesting that she get a divorce and telling her he was going to South America under a ten-year contract. If Mr. DeYoung did not furnish his attorney and the court with his wife's address it would remain unknown for there was no other source for such information. As a consequence, no notice could be given, and undoubtedly no notice was given, to Mrs. DeYoung, except as disclosed by the finding of the Juarez court that ‘summons issued to the defendant through publications in the official Bulletin of the State of Chihuahua.’ It is clear from the record on this appeal that Mrs. DeYoung received no notice whatever of Mr. DeYoung's pending action in Juarez, and this because of his dishonest scheming. She testified she did not hear ‘from him’ after the letter of April 30, 1936, and did not hear ‘of him’ until she located him in Los Angeles in the fall of 1937 through the district attorney of Stamford, Connecticut, and the Chief of Police of Grand Rapids. After locating Mr. DeYoung in Los Angeles she wrote him a lengthy letter under date of October 29, 1937. If she had known of his having secured a Mexican divorce it is reasonable to assume she would have made some mention thereof. Instead, she said: ‘Well Clarence don't you both think your are a little bit outside the Law going into another State and posing as man and wife without the benefit of a divorce.’ If any notice of the action in Juarez had been mailed to plaintiff herein the presumption is she would have received it.

On the record before us it is clear that the defendant herein perpetrated a gross fraud upon his wife and upon the court in Juarez by not furnishing her address to counsel and the court there. Mr. DeYoung's testimony to the contrary does not create a conflict in the evidence which is binding on appeal for ‘There must be more than a conflict of mere words to constitute a conflict of evidence.’ Herbert v. Lankershim, 1937, 9 Cal.2d 409, 471, 71 P.2d 220, 251. We are not unmindful of the soft-repeated rule that an appellate court will not interfere with the judgment arrived at by the trier of facts when there exists a substantial conflict in the evidence. ‘This rule, however, does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence.’ Herbert v. Lankershim, supra, 9 Cal.2d at page 471, 71 P.2d 251. In that case 9 Cal.2d at page 472, 71 P.2d 251, the court quotes with approval the rule that “While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff's case is always a question of law for the court (Grant v. Chicago, etc., Ry. Co., 78 Mont. 97, 252 P. 382), and, in determining this question, ‘the credulity of courts is not to be deemed commensurate with the facility or vehemence with which a witness swears. ‘It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude its judgment.’” (Italics added.) Since no proper notice was ever given plaintiff herein of the divorce proceedings in Juarez, the Mexican court never acquired jurisdiction to render a binding decree. Delanoy v. Delanoy, supra; 13 So.Cal.Law Rev. 294, 299. The situation here is not altogether unlike that considered in Aldrich v. Aldrich, 1928, 203 Cal. 433, 264 P. 754, where the Supreme Court reversed an order denying the defendant wife's motion to set aside a decree of divorce which had been granted the husband. At page 437 of 203 Cal., at page 755 of 264 P., the court said: ‘* * * it is obvious from the entire record that he knew the residence of defendant and planned to have notice mailed to her at an address which was never her address during the married life of the parties. This is extrinsic fraud—fraud on the defendant which prevented her from having her day in court * * * and it was also a fraud upon the court.’

No question of the full faith and credit clause of the United States Constitution (Art. IV, Sec. 1) is here involved since the judgment relied on by the defendant was not rendered by a sister state.

Defendant, however, argues that his Mexican divorce decree must be recognized by the court of California in view of the provision of section 1915, Code of Civil Procedure. That section reads as follows: ‘A final judgment of any other tribunal of a foreign country having jurisdiction, according to the laws of such country, to pronounce the judgment, shall have the same effect as in the country where rendered, and also the same effect as final judgments rendered in this state.’ The section lays down the rules with reference to the legal ‘effect’ which must be given to final judgments rendered in a foreign country as distinguished from judgments of sister states. The first rule is: a final judgment ‘shall have the same effect as in the country where rendered.’ Measured by this rule defendant's Mexican divorce decree is not entitled to recognition by the courts of this state in view of our determination that the evidence establishes that the defendant herein, as the plaintiff in a Mexican action, fraudulently concealed his wife's address so as to effectively prevent any notice of said proceedings being sent to her. This fraud, resulting in the failure to give proper notice to the absent spouse, constituted a violation of a constitutional guarantee under the Mexican Constitution and rendered the judgment subject to being set aside for lack of jurisdiction. The Mexican law on this point is summarized by Manual Ruiz, Jr., Esq., of the Los Angeles Bar, in his article on the subject of ‘Migratory Divorces,’ under the title of ‘The Effect of Section 1915 of the Code of Civil Procedure on Migratory Divorces procured in Foreign Countries' in 13 So.Cal.Law Rev. (1940), 294, at p. 299, as follows: ‘Divorces may nevertheless be set aside by the absent spouse, if improper notice is given, since, under the Mexican Constitution, proper notification is a constitutional guarantee. Notice must be given at the place of the defendant's residence, even though without the jurisdiction of the notifying State. This may be done personally, through letters rogatory, or by giving notice through the mails. If the complaining party commits a fraud by claiming a fictitious address as being that of defendant's residence, the defendant can move to set aside the judgment for lack of jurisdiction.’ (Italics added.) Mr. Ruiz cites decisions of the Mexican Supreme Court rendered prior to the date on which Mr. DeYoung obtained his divorce in Juarez in support of his statement of the Mexican law. The Mexican Supreme Court has since continued to follow these decisions. In an article entitled Mexican Marriages and Divorces in the March–April (1945) issue of the California State Bar Journal (Vol. 20, No. 2) by William B. Stern, Esq., Foreign Law Librarian, Los Angeles County Law Library, the author says: ‘As late as in June, 1944, the Mexican Supreme Court upset two Morelos divorces because the defendants were served only by publication although their whereabouts were known to the plaintiffs.’ Additional cases to the same effect, particularly dealing with divorces from the State of Chihuahua, are cited in footnotes. Since, therefore, Mr. DeYoung's Mexican divorce is not binding there, it is not within the protection of section 1915, Code of Civil Procedure, and is not enforceable here under the terms of said section, for to hold that it is would be to give it greater effect here than it has there.

No rule of comity requires the courts of this state to recognize a decree of divorce fraudulently obtained in another country.

Mr. DeYoung emphasizes the rule that a foreign decree, regular on its face, is entitled to a presumption of validity and that such presumption constitutes evidence in support of the judgment herein. He also argues that a ceremonial marriage, such as later took place between him and Mrs. Marshall, implies a legal dissolution of the prior marriage between him and plaintiff herein. However, where it is determined, as here, that the Mexican divorce decree was obtained through fraud which went to the jurisdiction of the court the evidentiary value of such presumptions vanishes. See, Delanoy v. Delanoy, supra, 216 Cal. at page 37, 13 P.2d 719, 86 A.L.R. 1321.

We are not unmindful of the rule that the burden is on the plaintiff to show the invalidity of the defendant's Mexican divorce. But the evidence herein recited unmistakably meets that burden.

Defendant points out that California was never the matrimonial domicile of the plaintiff and himself and that neither of the parties were domiciled in California when he secured his Mexican divorce. He then says ‘California was therefore not then interested nor is she now interested in the divorce proceedings.’ But California is interested in defendant's Mexican decree when he seeks to have it recognized here, because California is interested in the administration of justice to the end that a litigant in her courts may not be deprived of her rights through a judgment fraudulently procured elsewhere. ‘Nothing in modern times has brought greater discredit upon the judiciary as a department of government than the granting of so-called mail order divorces and other procedure under which some courts are suspected as being little better than vending machines for the issuance of divorce decrees.’ Litvinuk v. Litvinuk, 1944, Cal.App., 149 P.2d 882, 885, 886. Defendant's Mexican decree was not a mail order divorce, but if he is to prevail as a result of the concealment, fraud and deception which this record shows he practiced on the plaintiff and the Mexican court in securing it, then such a decree is little more than one step removed from the mail order class. California is indeed interested in seeing that such a result does not obtain.

Plaintiff also urges that the evidence is insufficient to support the finding that defendant established a bona fide domicile or residence in Juarez. This argument is based upon the letters hereinbefore quoted, the uncertain, contradictory and sketchy character of his testimony as to where he lived, what he did and other matters relating to his sojourn in Juarez, and upon the fact, which, however, did not come to light until the motion for a new trial, that during the early part of May, 1936, he was in Los Angeles, and on the 13th of that month purchased jointly with Lelia Marshall (whom he later married, but who used the name L. DeYoung in the transaction) the St. Paul Garage, and also on that occasion opened a joint bank account in Los Angeles with her. It is not, however, necessary for us to pass upon this question, in view of our determination of the other points herein involved.

The judgment is reversed.

FOX, Justice pro tem.

DESMOND, P. J., and PARKER WOOD, J., concur.