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District Court of Appeal, Second District, Division 1, California.


Civ. 19116.

Decided: December 19, 1952

Loyd Wright, Charles A. Loring and Wright, Wright, Green & Wright, Los Angeles, for appellant. Jennings & Belcher and Frank B. Belcher, Los Angeles, for respondent.

Plaintiff-cross-defendant and respondent (hereinafter referred to as plaintiff) instituted this action to obtain a decree of separate maintenance from defendant-cross-complainant and appellant (hereinafter referred to as defendant). As ground for obtaining the relief sought, plaintiff in the first count of her complaint alleged numerous acts of adultery on the part of defendant. In the second count extreme cruelty is pleaded. In her complaint plaintiff also alleged the existence of community property in excess of $2,500,000; that defendant is earning as salaries $220,000 per year, and has community income in addition to his salary in amount considerably in excess of $100,000 per year.

Defendant filed an answer admitting a ‘purported marriage ceremony’ with plaintiff on May 23, 1936. He alleged that such ‘purported marriage’ is illegal and void because of an alleged prior marriage of plaintiff which had not been dissolved by divorce, annulment, death or otherwise. Defendant denied the charges of adultery and extreme cruelty contained in plaintiff's complaint. He disputes plaintiff's allegations as to the value of the community property of the parties, alleging that the value thereof, if a valid marriage exists, does not exceed the sum of $122,626. Admitting that he holds the positions set forth in plaintiff's complaint, defendant alleges that his net income from all sources, after payment of federal, but exclusive of state income taxes, will not exceed the sum of $77,908 for the calendar year 1951, and that increased income tax rates accruing, his income for the year of 1952 will not exceed $71,818. Defendant further contends that a substantial portion of his property holdings are his separate property.

In addition to his answer, defendant filed a cross-complaint for annulment, or, in the alternative, for divorce. In his cross-complaint defendant alleges that a decree of divorce obtained by plaintiff from a prior husband by a judgment rendered in a court of the State of Nevada on May 23, 1936, was and is void for want of jurisdiction of the Nevada court. At the time of the hearing on the order to show cause hereinafter referred to, no answer to the cross-complaint had been filed. It is admitted that there are three children as the issue of said marriage, presently aged approximately 15, 10 and 6 years.

Pursuant to an order to show cause a hearing was had before the trial court on December 12 and 13, 1951. By supporting affidavits plaintiff asked an allowance for monthly alimony and support of the three children of $5,028.85, attorneys fees in the sum of $25,000 and court costs of $5,000.

Following a hearing on the order to show cause the court ordered, among other things, the payment of attorneys fees on account in the sum of $10,000; alimony to plaintiff in the sum of $2,750 monthly; $750 per month for the maintenance, support and education of the three children, and $500 payable forthwith for costs. Defendant was further ordered to pay all property taxes amounting to a sum testified by plaintiff as being ‘something in excess of $4,000.00 on the tax year’. It was further ordered that defendant pay premiums upon all health, life and accident insurance policies in which plaintiff or any of the three minor children of the parties appear as beneficiary, and also to pay when due all premiums for fire and public liability insurance upon the premises occupied by plaintiff and the minor children, and which amounted to $2,210.51 annually.

From that portion of the order allowing alimony to the plaintiff, attorneys fees and court costs, defendant prosecutes this appeal. In other words, the appeal is taken from all of the court's order directing payments to be made by defendant to plaintiff for her counsel, save and except as to the $750 per month allowed for the maintenance, support and education of the three minor children.

As a first ground for reversal of the order defendant urges that the trial court erred in sustaining plaintiff's objection to the former's offer of proof. In that regard the record reflects that during the progress of the hearing on the order to show cause defendant undertook to cross-examine plaintiff concerning the alleged marriage between the parties. It was plaintiff's contention that she and defendant were legally married at Redondo Beach, California, on May 23, 1936.

There was no question that the parties had participated in a marriage ceremony at that time and place, but defendant sought to show that at that time plaintiff was then legally married to one Harold C. Moore; that she and said Harold C. Moore were married at Portland, Oregon, on or about October 25, 1930; that the marriage between plaintiff and Harold C. Moore was never legally dissolved and still existed on May 23, 1936, at the time of the marriage ceremony participated in by the parties hereto. Plaintiff contended that her marriage to Harold C. Moore was dissolved and terminated on May 22, 1936, the day before the marriage ceremony at Redondo Beach, by a decree of divorce by a Nevada court at Las Vegas, Nevada. Defendant contended that said decree of divorce was merely a so-called ‘quickie Nevada’ divorce, and was void for want of jurisdiction in that at the time of the alleged Nevada divorce plaintiff and Harold C. Moore were each residents of California, and neither of them were residents of Nevada.

In this regard the record reflects that on cross-examination of plaintiff she was interrogated as follows:

‘Q. (By Mr. Loring, of counsel for defendant) Mrs. Dietrich, isn't it a fact that you went to the State of Nevada on or about April 4, 1936, for the sole purpose of procuring a divorce or a purported divorce from your then husband, Harold Moore?’

To the foregoing question, plaintiff answered:

‘* * * No, I did not go to Las Vegas (Nevada) for the sole purpose of obtaining a divorce * * *.’

Defendant then obtained an admission from plaintiff that in the Nevada divorce she was represented by Attorneys McNamee and McNamee. Thereupon plaintiff was confronted with a letter written in her handwriting and addressed to defendant, and which letter read in part as follows:

‘* * * I had to see Mr. McNamee during the noon hour because he is so rushed with divorces, and I thought I should see him before I called you, so that I could report progress. I thought you would be glad to know I had not forgotten the purpose of my trip.’

After plaintiff admitted writing the letter she was asked, ‘Now, doesn't that refresh your recollection that the purpose of your trip to Las Vegas (Nevada) was to get a divorce from Harold Moore?’

An objection by plaintiff's counsel to this question was sustained.

Thereupon, by stipulation, defendant made an offer of proof. In support of and as part of the offer of proof he offered many pieces of documentary evidence consisting in large part of plaintiff's written declarations. This evidence was designed to show that plaintiff was never a resident of Nevada; that she never intended to make Nevada her home and that therefore, the divorce decree in Moore v. Moore was void for want of jurisdiction. For the purpose of deciding the legal questions herein raised it will be sufficient to epitomize defendant's offer of proof by saying that he offered to prove by the aforesaid documentary evidence that at the time plaintiff obtained her Nevada decree of divorce from her husband, both parties to said action were residents of the State of California and not of the State of Nevada. That plaintiff intended, after she obtained her divorce in Nevada and married defendant, to live with him in the State of Texas. That plaintiff referred to her stay in Nevada as ‘my sojourn in Nevada’. That during her stay in Nevada awaiting her divorce from her former husband, plaintiff wore defendant's engagement ring and fairly ‘flaunted it’ in the presence of other people. That plaintiff did not stay continuously in Nevada during the six-week period April 4, 1936, to May 22, 1936, as required by the laws of that state, but came to Los Angeles on four occasions, and on one of such occasions remained in Los Angeles for more than twenty-four hours. That during said six-week residence in Nevada plaintiff made active plans to marry defendant. That as early as April 21, 1936, plaintiff's wedding date for her marriage to defendant was fixed as May 23, 1936. That on May 19, 1936, three days before she secured her Nevada decree of divorce from her former husband, plaintiff came to Los Angeles and with defendant applied for a license to marry him. That after testifying in the Nevada court at the hearing of her divorce proceeding on May 22, 1936, that she came into the State of Nevada ‘with the intention of making it your (plaintiff's) home and permanent place of residence’, which testimony was given at about 9:45 a. m., plaintiff sent a telegram to defendant reading in part as follows: ‘* * * Am all finished and leaving on noon train due L. A. nine forty-five tonight but running late’. That plaintiff did on that same day board the train at Las Vegas, Nevada, and arrive in Los Angeles that night. That she never returned to the state of Nevada thereafter. That plaintiff caused an appearance to be entered in the Nevada action on behalf of Harold Moore by means of a power of attorney which Harold Moore gave plaintiff; that Harold Moore was never personally present in the State of Nevada at any time during the dates April 4, 1936 to May 22, 1936; that plaintiff paid the expense of legal fees and court costs for Harold Moore, and that the divorce proceeding did not cost the latter anything. That defendant had no knowledge or information prior to the month of November, 1951, regarding the invalidity of plaintiff's Nevada divorce from her husband Harold Moore and that he first learned that there was some question regarding the validity of such Nevada divorce in 1951.

The foregoing offer of proof was made, as stated by defendant's counsel, ‘for the purpose of showing that there is no legal marriage between the (plaintiff) and (defendant) in this action by reason of the fact that on May 23, 1936, at the time of the ceremony with the defendant (the plaintiff) was then and there the legal wife of a man to whom she was married in 1930’.

The trial court sustained objections to this offer of proof on the following grounds:

‘The offer, on its face, shows an activity on the part of the defendant in obtaining the Nevada divorce which the Court considers constitutes an estoppel.

‘Second, the Court holds that the defendant, in any event, is not a person who may attack the divorce, not being a party thereto, or interested therein.

‘Third, that under the law, both parties having appeared in the action, and had an opportunity to present all matters, including jurisdictional matters, entitled the Nevada decree to full faith and credit in this and every other state.’

An objection to all documentary evidence offered in support of the offer of proof was sustained, except that the judgment roll of the Nevada proceeding was received in evidence, but the transcript of the testimony given by respondent in said proceeding was excluded.

In support of his contention that the trial court erred in sustaining an objection to the aforesaid offer of proof, defendant urges that the validity of the challenged marriage between the parties in the instant proceeding was an issue on the hearing of the order to show cause.

Relying heavily and alone upon the case of Hite v. Hite, 124 Cal. 389, at page 391, 57 P. 227, at page 228, 45 L.R.A. 793, which involved and appeal from an order awarding alimony and counsel fees pendente lite, defendant insists that, as therein stated, ‘To justify alimony, marriage must be admitted or proven. Upon this subject there is no difference in the authorities. * * * The judge should be satisfied from the entire proof made of the fact of marriage. Unless upon that question the husband has had his day in court, and a hearing, if alimony is allowed, his property is taken without due process of law. * * * He must be heard, and be allowed to submit evidence, which must be considered in determining as to the fact of marriage.’

However, in the case just cited, the court was concerned with a claimed common-law marriage wherein the marriage contract, according to plaintiff's deposition, consisted simply in this, that the defendant said to her, ‘You are my wife’. That no witnesses were present, and that she had refused to live with defendant husband unless he married her. In a concurring opinion prepared by Chief Justice Beatty in the Hite case, supra, we find the following language: ‘If he sues to annul a marriage upon the ground that it was void ab initio by reason of fraud, precontract, insanity, etc., the granting of alimony pendente lite would be proper, because a formal marriage is alleged, and will remain a lawful and established marriage in the absence of affirmative proof by him of the existence of some fact or facts which will invalidate it. In such a case I concede the propriety and justice of allowing the wife (for until the fraud or other invalidating circumstances are established she is the wife) money to make her defense.’

In the instant case we are confronted with a situation wherein a ceremonial marriage is not only admitted but affirmatively alleged in verified pleadings by both parties. Under such circumstances, we are persuaded that plaintiff was entitled to an award pendente lite of alimony, attorneys fees and costs. We are satisfied that the weight of authority supports us in the conclusion that where a husband seeks an annulment of a marriage on grounds, the existence of which is denied by the wife under oath, the wife is entitled to an allowance during the pendency of the suit. That this is sufficient to sustain the application and the court will not go into the merits of the action at this state. And the fact that the husband, where he is the defendant in an action for divorce or separate maintenance, seeks to secure an annulment by cross-complaint, instead of by an original suit, does not change the rule. 17 Am.Jur. 444, sec. 556; 35 Am.Jur. 226, 227, sec. 70.

In the case of Bancroft v. Bancroft, 9 Cal.App.2d 464, 467, 50 P.2d 465, the case of Hite v. Hite, supra, is discussed and the reasons for its inapplicability in cases of a ceremonial marriage is set forth. In the Bancroft case it was held that where, as here, the defendant did not deny his marriage to plaintiff, but merely denied the legal effect of the marriage for the reason that plaintiff was under a supposed disability that prevented her from entering into a lawful marriage with defendant, and where, on an application pendente lite for trial costs and attorneys fees, the fact of a ceremonial marriage was established, and it was admitted that the parties had lived together as husband and wife for at least a year after the ceremony (in the case at bar more than 14 years) the trial court was fully justified in concluding that, for the purpose of said application, plaintiff had made a reasonably plain case of the existence of her marriage, and was entitled to be furnished with means of temporary support and of counsel and of conducting the suit until the truth or falsehood of her allegations can be ascertained by the proofs formally taken in the trial of the case.

We are satisfied that the ruling of the court sustaining an objection to defendant's offer of proof challenging the validity of the Nevada decree dissolving plaintiff's former marriage must be sustained for the reason that appellant was estopped to collaterally attack such decree. A stranger to a foreign divorce decree can impeach it collaterally only when it injuriously affects him. And it has been held that one who subsequently marries one of the divorced parties has no such interest as will enable him to attack the decree. Mumma v. Mumma, 86 Cal.App.2d 133, 135, 194 P.2d 24, and cases therein cited. Defendant is a stranger to that decree; he had no rights which were affected by it. The case now before us does not fall within any of the jurisdictional grounds upon which a foreign divorce decree is subject to collateral attack as recited in the case of Cardinale v. Cardinale, 8 Cal.2d 762, 766, 68 P.2d 351. We find no cases holding that a foreign decree, valid on its face, may be collaterally attacked for fraud by a stranger to the decree who had no rights which were prejudiced at the time the decree was made.

The proffered facts contained in appellant's offer of proof have hereinbefore been narrated and need not be here repeated. Suffice it to say that the offer of proof shows that defendant knew and was kept meticulously informed of every step taken by plaintiff in securing her Nevada decree of divorce from Harold Moore. It is equally clear that marriage was contemplated between defendant and plaintiff from a time prior to the latter's departure for Nevada. A part of the defendant's offer of proof was that a early as September of 1935 a marriage between the parties was discussed, with a planned honeymoon trip to Honolulu. Defendant wrote to plaintiff almost daily during her stay in Nevada. He gave her an engagement ring prior to the time she obtained her Nevada decree, and made weekend trips to Nevada during her stay there. Defendant's offer of proof shows that he was thoroughly cognizant of plaintiff's state of mind, her intent and the purpose she sought to achieve. With full and complete knowledge of all facts with reference to the Nevada decree, defendant lived with plaintiff as husband and wife for a period of more than 14 years, and they have a family of three children.

Though it be conceded that defendant did not actually aid plaintiff in procuring the Nevada decree by paying her attorneys fees and expenses so that she would be free to marry, it is manifest that he married her in reliance upon such decree, was interested in the outcome of the Nevada divorce proceeding, and anxious that plaintiff be in a position so that she could marry him. The result in which he was so vitally interested he now seeks to nullify. This he cannot do because of the principle of quasi estoppel, or acquiescence. While an estoppel does not make valid the thing complained of it does silence the complainant. Rediker v. Rediker, 35 Cal.2d 796, 805, 808, 221 P.2d 1, 20 A.L.R.2d 1152; Harlan v. Harlan, 70 Cal.App.2d 657, 661, 161 P.2d 490; Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19.

Defendant accepted the situation and married plaintiff upon the faith of the status conferred upon her by the Nevada decree. Particularly pertinent to the case now engaging our attention is the language in the case of Cromarty v. Cromarty, 38 Ont.L.Rep. 481, 33 D.L.R. 151, wherein it is said: ‘* * * it would be a monstrous thing to hold that this marriage conferred upon him any status to attack the earlier divorce and so annul his marriage’.

The case of Brill v. Brill, 38 Cal.App.2d 741, 745, 102 P.2d 534, strongly relied upon by defendant, does not aid him. The cited case neither discusses nor decides the question specifically decided in the later case of Mumma v. Mumma, supra, that a second husband is a stranger to a foreign divorce action of his wife and consequently, in no position to collaterally attack the decree therein. Whatever may be said in other foreign state decisions in conflict with the holding in Mumma v. Mumma, supra, must yield to the holding in the latter case, which declares the law of California. The finding of the trial court that the proffered evidence constituted an estoppel was, therefore, correct and proper.

We come now to a consideration of the defendant's final contention that the award of the trial court of attorneys fees and alimony pendente lite constitutes abuse of discretion. In this regard it is first contended that the amounts awarded were excessive in view of defendant's ability to pay. The manifest purpose of pendente lite allowances to a wife are to enable her to live in her accustomed manner pending the disposition of the action, and to provide her with whatever is needed by her to litigate properly her side of the controversy.

As we read defendant's contentions, he does not claim that the amount awarded for plaintiff's support and maintenance was excessive except for the claimed inability of defendant to pay. With reference thereto there was testimony by a certified public accountant that he had examined the financial records of defendant, including the income tax returns of both plaintiff and defendant for the year 1950; that the 1950 income tax returns of plaintiff and defendant reflected a gross cash income for that year of $406,700.67, $87,984 of which was received on oil royalties, twenty-seven and one-half percent of which is tax free; that the expense of maintaining the family for the year of 1950—or, in other words, household expenses—amounted to $85,567.76. That income tax returns, both state and federal, reflected a payment of $209,561.35 for the year 1950; that the net amount left after the payment of income taxes was $197,139.32, leaving after the payment of family maintenance the sum of $111,571.56; that under the federal income tax law covering the year of 1951, there would be an increase of about $20,000 in federal taxes. That in addition, $8,459.41 was received by defendant's two daughters by a former marriage through a gift made by him to them.

In making the award of $2,750 per month for the support and maintenance of plaintiff the court made a specific finding, ‘* * * which amount the court finds to be in accordance with her present standard of living’. There was ample testimony to establish the fact that in determining plaintiff's need of such an amount to maintain herself in accordance with her accustomed standard of living the court did not abuse its discretion. Neither did the court abuse its discretion in determining that defendant was financially able to meet the obligation imposed upon him to make such payments.

However, a most serious question is presented by defendant's contention that the court erred in failing to require plaintiff to utilize the income from her separate property for her maintenance and support. Section 137 of the Civil Code does not empower the court to award temporary support and suit money except upon a finding of necessity. And if the wife possesses independent means sufficient for the purpose of enabling her to live in her accustomed manner pending the disposition of the action, and to litigate properly her side of the controversy, the allowance therefor should not be branted. However, she is not required to impair the capital of her separate estate. Loeb v. Loeb, 84 Cal.App.2d 141, 145, 190 P.2d 246.

In her affidavit to support the order to show cause plaintiff admitted she had a net financial worth of $67,212.13, and that her income from her separate property was $1,100 monthly. However, according to plaintiff's own records, she had an income of $11,768.03 during the period January 1, 1951 to August 31 of the same year. This shows an average income during the stated period of $1,471 per month.

In the instant case the court concluded that the sum of $2,750 per month was the ‘* * * amount the court finds to be in accordance with her (plaintiff's) present standard of living.’ Manifestly, the ‘need’ of a wife as that term has been construed by the courts, is, in a case such as the one now before us, the difference between what the court finds she reasonably requires for her support and maintenance, and her ability to pay for such support and maintenance from the income produced by her separate estate. The record reveals that the attitude of the trial court was not in accord with the foregoing rule. Therefore, it must be held that in refusing to consider plaintiff's needs in the light of the rule above enunciated, the court abused the discretion vested in it. The order must be modified by reducing the amount to be paid plaintiff for her own support and maintenance from $2,750 monthly to $1,650 per month, which added to her admitted income of $1,100 per month totals the sum which the court found was reasonably necessary to maintain her in accordance with her accustomed standard of living. Loeb v. Loeb, supra, 84 Cal.App.2d at page 145, 190 P.2d at pages 248, 249; Spreckels v. Spreckels, 111 Cal.App.2d 529, 534, 244 P.2d 917.

What we have herein stated is not to be considered as an expression upon our part as to what would be a proper judgment upon the ultimate issue of permanent support.

We now come to a consideration of defendant's final contention that the court abused its discretion in making an allowance to plaintiff of the sum of $10,000 on account of attorneys' fees and $500 for costs of suit.

In his brief defendant presents no argument in support of the claim that the award for costs of suit was exorbitant, and we shall therefore assume an abandonment by him of that contention.

Concerning the award of attorney fees, defendant urges that the sum of $10,000 on account was excessive. It is agreed that under the law, the allowance of such fees and their amount rest in the sound discretion of the trial court, and that an allowance thereof will be set aside only upon a clear showing of abuse of discretion.

In the case of Pope v. Pope, 107 Cal.App.2d 537, 539, 237 P.2d 312, 314, it is said that ‘In determining the amount of a reasonable fee the trial court is permitted to consider various factors: The nature of the litigation, its complexity, the nature and extent of the contest, the amount involved, the financial circumstances of the parties, the skill required, the professional standing and reputation of the husband's attorneys and of the attorneys selected by the wife, are some of the relevant matters to be considered.’ (Citing cases.)

Since Civil Code section 137 limits the allowance of attorneys fees to those necessary to enable the wife to secure adequate representation to prosecute or defend the suit and to meet the legal expenses and fees that she can reasonably be expected to incur in such prosecution or defense, the award must of necessity be based upon the value of the services that can be anticipated from a consideration of the extent to which the action may be contested, the size of the marital estate, and the difficulties attending a determination of the value of the property and its classification as separate and community. And, as heretofore pointed out, the court may consider the skill required, the professional standing and reputation of the husband's attorneys and of the attorneys selected by the wife. Because section 137 gives the court no authority to base an award on past services, the allowance of fees thereunder is necessarily prospective in nature. Warner v. Warner, 34 Cal.2d 838, 840, 841, 215 P.2d 20; Pope v. Pope, supra, 107 Cal.App.2d at page 539, 237 P.2d at page 314.

It cannot be successfully urged that this litigation is devoid of difficulty or complexity. On behalf of plaintiff wife there is involved her suit for separate maintenance, predicated upon charges of adultery and cruelty. There is also the question of whether certain property is community or separate, and the setting aside of transfers of alleged community property by defendant to his children by a former marriage, namely Elizabeth Jewell and Katherine O'Harra, consisting of a five per cent interest to each of them in the Oak Canyon Oil Field, as well as the securing of an accounting of sums of money allegedly received by said transfers. Also tendered as issues by defendant in his cross-complaint is an action for annulment, and, in the alternative, for divorce.

Large and complicated property interests are involved. Plaintiff claims there is community property in excess of $2,500,000. Both sides have employed expert accountants. There is very indication that the trial of this action will be long and bitterly contested. In view of the foregoing facts, we cannot say that the trial court abused its discretion in making the award of attorneys fees.

Furthermore, as was said in Warner v. Warner, supra, 34 Cal.2d at page 841, 215 P.2d at page 22, quoting from Nightingale v. Superior Court, 184 Cal. 583, 194 P. 1002, ‘We entertain no doubt of the power of the court in divorce actions to modify its orders for the payment to the wife of money necessary to enable her to support herself during the pendency of the action, or to enable her to prosecute or defend the action, as the circumstances with regard to necessity change’.

Therefore, the trial court could reduce the award to an amount necessary to compensate the attorneys for services actually rendered should contingencies arise that would preclude rendition of the anticipated services.

In view of the fact that plaintiff's revenues received as income from her separate property will be consumed by the own living expenses, we cannot say that the trial court abused its discretion in making the award of counsel fees and costs and ordering that they be paid by defendant.

For the foregoing reasons, the order appealed from is modified by reducing the amount to be paid for the maintenance and support of plaintiff as set forth in paragraph ‘D’ thereof, from the sum of $2,750 per month to $1,650 per month. In all other respects the order is affirmed. The parties will bear their respective costs on appeal.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.