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

Mimi Stone SEFTON, Plaintiff and Appellant, v. Selbert L. SEFTON, Defendant and Respondent.

Civ. 16130.

Decided: February 04, 1955

Franklyn M. O'Brien, San Francisco, for appellant. Sefton & Gartland, San Francisco, for respondent.

This is an appeal from a judgment determining that the defendant's obligation to make monthly alimony payments to plaintiff was terminated by plaintiff's marriage to one Marble. Civ.Code, sec. 139.

Appellant entered into a ceremonial marriage with Marble on June 12, 1952. Five days later she filed a complaint for the annulment of this marriage and defendant Marble having appeared and consented that the matter might be heard as a default, after taking testimony the court made and entered a judgment of annulment which decreed that the marriage to Marble was null and void ab initio.

Respondent in this action defended on the ground that his obligation to pay alimony was terminated by appellant's marriage to Marble. Appellant introduced the decree of annulment and rested on this issue. Respondent introduced no evidence on the subject. The trial court found that respondent's obligation to pay appellant alimony was terminated by her marriage to Marble.

We may assume that the invalidity of her subsequent marriage properly proved against respondent, would entitle appellant to continue to receive alimony payments from him, since a marriage void ab initio is in law no marriage at all. See Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501.

The problem in this case is presented by sec. 86, Civil Code, which provides: ‘A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.’

Normally a judgment by a court having jurisdiction determining a status is conclusive as to the existence of the status against all persons. Sec. 1908(1), Code Civ.Proc.; Restatement, Judgments, sec. 74(1). However sec. 86, Civ.Code, expressly limits the conclusive effect of a judgment annulling a marriage to the parties and their privies. This gives such a judgment the characteristics of an in personam and not those of an in rem judgment, because it is the accepted rule in California and elsewhere that judgments in personam are only binding on the parties and their privies. Sec. 1908(2), Code Civ.Proc.; Morris v. Fortier, 59 Cal.App.2d 132, 134–136, 138 P.2d 368; Roman Catholic Archbishop of San Francisco v. Shipman, 69 Cal. 586, 590, 11 P. 343; Restatement, Judgments, sec. 93(b).

Appellant argues that though not conclusive against respondent the judgment of annulment should create a prima facie case against him. Sec. 1909, Code Civ.Proc., limits the prima facie effect of judicial orders which are not made conclusive by sec. 1908 to the parties and their privies and in the light of that section the same effect must be given to sec. 1963, subd. 17 of that code.

The several code sections taken together make it clear that a judgment annulling a marriage standing alone does not constitute either conclusive or prima facie evidence of the invalidity of the marriage as to third parties. It was so expressly held in Price v. Price, 24 Cal.App.2d 462, 75 P.2d 655.

This does not mean, as appellant seems to suggest, that unless the judgment of annulment is given the effect of a rebuttable presumption against a third party the validity of the judgment cannot be proved against him at all. It does mean that the validity of the judgment must be supported by independent proof of the facts upon which it is based and that those facts can then be disputed by the third party by contradictory evidence. In other words as to a third party the question of the validity of the annulment decree must be relitigated, Armstrong on California Family Law, p. 95, with the burden of proof upon the party asserting the validity of the annulment decree.

Judgment affirmed.

I concur in the opinion but wish to make the following comments:

It is my view that a reasonable construction of clauses in property settlement agreements between spouses about to be divorced providing that payments to the wife will cease upon her remarriage mean exactly that. It is the fact of the ceremonial remarriage that is in the minds of the parties and causes the payments to cease under the property settlement agreement. An annulment of the remarriage by the wife can not give new life to the husband's obligation which has terminated by the remarriage.

In some cases it is months or even years before an annulment of the remarriage is sought by the wife. Is it reasonable to say that the husband's obligation of support under such an agreement can be reinstated at the whim of the wife and at a time to be set by her?

It was held in the cases of In re Estate of Gosnell, 63 Cal.App.2d 38, 146 P.2d 42 and Price v. Price, 24 Cal.App.2d 462, 75 P.2d 655, that a decree of annulment is not conclusive as to persons not parties to the action.

In Re Estate of Gosnell the widow of Gosnell remarried; after several months the marriage was annulled; she then sought a family allowance from her first husband's estate. It was held that she was not entitled to the family allowance, that she lost her right to such an allowance upon her remarriage and that the annulment was of no effect in so far as to give her a right to a family allowance.

In Price v. Price the parties made a property settlement agreement in which it was provided that the husband should pay the wife $150 per month and further provided that in the event of a divorce and remarriage of the wife the obligations of the husband would cease. The parties were divorced and the wife entered into a marriage ceremony in Mexico. Thereafter the Mexican marriage was annulled by a California Superior Court. The Appellate Court held that under sec. 86, Civil Code, the decree of the California court nullifying the Mexican marriage was not binding upon the husband and did not have the effect of obligating him to carry out the terms of the property settlement agreement.

DOOLING, Justice.

NOURSE, P. J., concurs.

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