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SCOTT v. SCOTT

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

John W. SCOTT, Plaintiff and Respondent, v. Winifred C. SCOTT, Elli Scott, Defendants. Winifred C. Scott, Appellant. *

Civ. 22959.

Decided: July 02, 1958

Monta W. Shirley, Los Angeles, for appellant. Hahn, Ross & Saunders, Los Angeles, for respondent.

The declaratory judgment here presented for review sustains the validity of the second of two successive decrees which respondent husband had obtained in Mexico, and both of which purported to dissolve his marriage to appellant wife. Appellant had successfully challenged the validity of the first Mexican decree in her California separate maintenance action, which followed the first Mexican decree and preceded the second.

Appellant attacks the instant judgment and the Mexican decree which it purports to validate on several grounds. However, we find it necessary to consider only the first and most basic of these grounds, namely: that the Mexican divorce decree is invalid because respondent was never domiciled within the territorial jurisdiction of the court which granted it. Chronologically stated, the essential facts appear to be as follows:

Colonel Scott (respondent) and his wife, Winifred, (appellant) were married on January 10, 1931, and separated on July 9, 1948. In 1951, Col. Scott sued Winifred for divorce in Wyoming, which apparently was the matrimonial domicile. This action was dismissed.

In 1952 Col. Scott secured a Mexican divorce decree at Juarez, State of Chihuahua, giving as his residence 212 Juarez Avenue, Juarez, Mexico, that being the location of the law office of his Mexican lawyer, Arturo Martinez. On December 5, 1952, he married respondent Elli Scott.

On December 11, 1952, Winifred filed in the Los Angeles superior court her action for separate maintenance, alleging cruelty and alleging facts adverse to the validity of the Mexican divorce. Col. Scott answered, denying the material allegations of the complaint, and making countercharges of cruelty against Winifred. On May 9, 1953, judgment was rendered in the separate maintenance action, holding in effect that Winifred was the innocent party, declaring the Mexican decree to be invalid, and awarding separate maintenance. This judgment became final.

On December 31, 1954, Col. Scott was retired from the United States Army. In January, 1955, he went to Guadalajara in the state of Jalisco, Republic of Mexico, and employed an attorney to secure another divorce from appellant Winifred. Referring to the efforts of his Mexican attorney in Jalisco, Col. Scott testified: ‘He prepared a petition and took it to the Court to place it on the docket. It was refused by the Judge and the Judge said that he cannot hear the case, that so far as he is concerned, I was divorced in 1952 and the only place that I can get a rehearing on it is under another set of circumstances and charges in Chihuahua.’

In January, 1956, Scott went back to Juarez in the state of Chihuahua and on January 14, 1956, there filed his second action for a divorce again giving as his residence 212 Juarez Avenue, his attorney's office address. The complaint alleged the date of separation to be July 9, 1948, the same date as alleged in the California separate maintenance action. This complaint was served on Winifred at Omaha, Nebraska, by mail on January 25, 1956. She made no appearance in the Mexican divorce proceedings. On March 17, 1956, the Mexican decree here in question was granted, reciting as grounds ‘mental cruelty, residence apart for over one year and incompatability of characters.’

On July 26, 1956, Scott filed in the Los Angeles separate maintenance action his application for a modification of the support decree, alleging his retirement from the Army, the resulting decrease in his income, and therein stated: ‘Further that on or about March 17, 1956, this affiant did obtain a valid and subsisting divorce from the plaintiff, Winifred C. Scott, in the Second Civil Court, in and for the District of Bravos, State of Chihuahua, Republic of Mexico; and further, since said date, affiant has remarried.’

In August, 1956, this order to show cause was heard whereupon the court made findings including the following: ‘That the Decree of Divorce obtained by the defendant in the State of Chihuahua on March 17, 1956, is contrary to and is in violation of the injunction issued against the defendant in this action on March 2, 1956, whereby the defendant was restrained from proceeding with any divorce proceedings instituted in the City of Juarez, State of Chihuahua, Mexico; * * *. For the purposes of this hearing, there is no finding as to the validity or the invalidity of the Mexican decree of divorce obtained by the defendant from the plaintiff on March 17, 1956; * * *.’ The court ordered Scott to continue paying support money in a reduced amount and ordered him to pay counsel fees to the attorney for appellant.

On August 23, 1956, Scott filed his complaint in the instant action, alleging the rendition of the former separate maintenance decree and ‘that thereafter on March 17, 1956, this plaintiff * * * did obtain a valid and subsisting divorce from the defendant Winifred C. Scott.’ The complaint further alleges Scott's marriage to Elli on July 23, 1956. The prayer is for a judgment declaring ‘the rights and the duties of this plaintiff’, and declaring ‘the rights and the duties' of defendants Winifred C. Scott and Elli Scott. Winifred filed her answer to this complaint on September 14, 1956.

The instant case was tried in April of 1957. The records and files in the separate maintenance action and authenticated copies of the pleadings and decrees in the two Mexican divorce actions were received in evidence. Oral testimony was given by Col. Scott and by his Mexican attorney, Arturo Martinez. Winifred did not appear personally at the trial. Upon findings of fact and conclusions of law favorable to respondent, the trial court rendered judgment declaring as follows:

‘A. That the Judgment of Divorce between John W. Scott, the plaintiff, and Winifred C. Scott, the defendant, dated March 17, 1956, in the State of Chihuahua, Republic of Mexico, is a valid and subsisting divorce. B. That Winifred C. Scott is not the wife of John W. Scott, and that the defendant Elli Scott is the wife of John W. Scott. C. That there is the relation, the rights and duties of husband and wife as between the plaintiff, John W. Scott, and the defendant Elli Scott.’

We have concluded that appellant's attack upon the jurisdictional basis of the Mexican decree must be sustained. Appellant's position is supported by the well settled rule ‘that jurisdiction to grant a divorce rests upon bona fide domicil.’ Crouch v. Crouch, 28 Cal.2d 243, 249, 169 P.2d 897, 900; DeYoung v. DeYoung, 27 Cal.2d 521, 165 P.2d 457; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. ‘It has been invariably held that a foreign divorce decree procured on simulated residence has no force or effect in this state.’ Union Bank & Trust Co. v. Gordon, 116 Cal.App.2d 681, 686, 254 P.2d 644, 647.

Respondent's own testimony clearly and conclusively demonstrates that he was not domiciled in the state of Chihuahua, Mexico, at the time he sought and obtained the decree of divorce here in question. The substance of his testimony may be summarized as follows: That he was a registered voter in Wyoming and intended to continue as such; that he maintained residences in California, in Switzerland and in the state of Jalisco, Mexico; that he had resided in Jalisco since January of 1955 and attended the university there; that he intended to retain his citizenship in the United States, both for voting and income tax purposes; that his sole purpose in going to Juarez, in the state of Chihuahua, was to obtain a divorce; that he did not intend to remain in Chihuahua any longer than necessary to obtain the divorce, but intended to return to Jalisco to continue his studies; that he actually remained in Juarez approximately two weeks; that he went to Juarez to obtain his divorce after the judge in Jalisco had declined to entertain the proceedings; that in registering as a resident of Juarez in January, 1956, he gave his lawyer's office address as his place of residence as he had done in 1952 when he secured his earlier divorce.

The following direct quotations from respondent's testimony on cross examination clearly show that he was not domiciled in the state where he obtained his divorce:

‘Q. By Mr. Shirley: Now, on the date that that complaint was filed, Col. Scott, did you not then actually reside in the State of Chihuahua, did you? A. If my information on the Mexican law is correct that you establish a residence by registering with the Municipal Presedencia that I was a legal resident of Juarez on that date. * * *

‘Q. In other words you didn't go to Juarez, Mexico, for the purpose of living there, you went there to get your divorce; is that correct? A. I testified yesterday and I will testify again today that I went there on the advice of the Supreme Court Judge to go there and I went there upon his advice.

‘Q. I understand that, I am merely saying that is why you went there, upon the advice of the attorney to get a divorce there; is that correct? A. That's correct.

‘Q. Not for the purpose of permanently living there; is that correct? A. That's true.’

Arturo Martinez, an attorney licensed to practice law in the state of Chihuahua, was called by respondent and testified that he had represented respondent in the two proceedings in which the Mexican decrees of 1952 and 1956 had been rendered; that in his opinion both decrees were valid, and that the only residence required by law of the state of Chihuahua as a basis of jurisdiction is established by the simple process of registration with a specified municipal authority. That the testimony of Mr. Martinez correctly stated the Chihuahua law is indicated by the following statement by Summers, The Divorce Laws of Mexico, 2 Law & Contemp. Prob. 310, 319:

‘According to the Chihuahua law the court of the situs of the residence of the plaintiff has jurisdiction to try the case, this jurisdictional fact being established by proof of registration in the municipal register of the locality wherein the plaintiff alleges he has his abode. Inasmuch as this registration apparently can be made on the day of arrival it is obvious that no insuperable bar is presented to the migratory divorce seeker. Moreover, purported jurisdiction is acquired by the express or tacit consent of the parties, the statute going so far as to say that there is tacit submission when a defendant who has been properly served does not raise the issue of jurisdiction.’

The complaint in the instant case contains the following allegation: ‘That thereafter on March 17, 1956, this plaintiff having maintained a bona fide residence in Chihuahua, or Jalisco, Mexico, and did obtain a valid and subsisting divorce from the defendant Winifred C. Scott.’ The italicized words ‘or Jalisco’ evidently were inserted in pen and ink at the time the complaint was verified. It is perhaps significant that this allegation of bona fide residence is made by way of recital rather than by direct averment. In any event, it is a self-nullifying allegation which in itself indicates respondent's own recognition that he could not truthfully swear to a bona fide residence in Chihuahua.

That respondent did not establish the requisite domicile in Chihuahua is clear. As stated in DeYoung v. DeYoung, 27 Cal.2d 521, 524, 165 P.2d 457, 458: ‘The acquisition of a new domicile is generally understood to require an actual change of residence accompanied by the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode. See cases collected in 106 A.L.R. 6, 14; 28 C.J.S. Domicile § 1; 17 Am.Jur., Divorce and Separation, § 250, Domicile, § 2; Rest., Conflict of Laws, § 12, p. 24. Merely abiding in a place for a definite time for a transient purpose such as obtaining a divorce, unaccompanied by any intention to remain permanently or indefinitely, is not sufficient. See 106 A.L.R. 6, 15; 9 R.C.L. 452; Rest., Conflict of Laws, § 22, p. 46.’ (Emphasis added.)

In Wynne v. Wynne, 20 Cal.App.2d 131, 66 P.2d 467, this court reversed a judgment upholding a Nevada divorce decree. In that case, as in the case at bar, the trial court found that the respondent had established a bona fide domicil in the state where the questioned divorce was granted. In the cited case, as here, the finding was conclusively impeached by the respondent's own testimony. Indeed the challenged finding in the instant case appears to be more clearly lacking in evidentiary support than that in the Wynne case.

The judgment is reversed.

HERNDON, Justice.

FOX, P. J., and ASHBURN, J., concur.

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