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

Olive HUDSON, Plaintiff and Respondent, v. James HUDSON, also known as Jimmie B. Hudson and J. B. Hudson, Defendant and Appellant.*

Civ. 18079.

Decided: May 26, 1959

George Porter Tobin, Los Gatos, for appellant. Haskell M. Goodman, San Jose, for respondent.

Defendant appeals from an order granting plaintiff alimony, attorney's fees and costs pendente lite, placing a lien therefor on the community property and restraining defendant from encumbering or disposing of said property.

Questions Presented.

1. The wife's right to support, attorney's fees and costs after introduction of a presumptively valid foreign divorce decree.

2. Would a valid Idaho decree bar plaintiff's right to marital support?

3. Did the court abuse its discretion in the amount of the award?


The parties married May 3, 1947, in Reno, Nevada. From 1950 to April 6, 1957, they lived together in Los Gatos, California. On the latter date defendant left plaintiff, stating that he was going to Reno to secure a divorce but would return in six weeks or so to straighten out his affairs. April 22, 1957, plaintiff filed tis action for divorce on the ground of extreme cruelty. The same day the court ordered service of summons by publication. In the meantime defendant turned up in Idaho, rather than in his announced destination, Nevada. May 16, defendant was personally served in Idaho with substituted service in this action. May 21, defendant filed, in that state, action for divorce against plaintiff. Plaintiff was served in Los Gatos with substituted service in that action. June 12, defendant sued plaintiff in Santa Clara County for partition of real property located therein, allegedly held in joint tenancy. June 14, plaintiff obtained a temporary restraining order and the order to show cause upon which the order here appealed from is based. The order was returnable June 24. June 14, defendant filed a demurrer to the complaint asserting lack of jurisdiction, insufficient facts to constitute a cause of action and uncertainty and ambiguity. June 19, the Idaho court granted defendant an ‘absolute decree of divorce’ on the ground of extreme cruelty. The decree recited that evidence had been heard in support of the complaint, that defendant's residence in Idaho had been corroborated, that plaintiff here had been regularly served with summons and had defaulted. June 24, Plaintiff moved to stay proceedings in the partition action pending the husband's filing of a cost bond on the ground that defendant was a nonresident. The motion was granted upon a finding from the evidence that the husband was in fact a nonresident of this state. June 24, upon the hearing of the return of the order to show cause, defendant moved to set it and the temporary restraining order aside on the ground that the court had no jurisdiction because the Idaho divorce had severed the marriage relationship and also because no personal judgment could be rendered against defendant on substituted service. The court found that because of the grounds in defendant's demurrer additional to the attack on jurisdiction, defendant had generally appeared in the action and therefore a personal judgment would lie, and that as plaintiff was attacking the validity of the Idaho decree the validity of which would be determined in this action, the court had jurisdiction of all matters presented by the order to show cause. The hearing was continued to September 5. July 15, plaintiff filed an amended complaint, specifying more particularly the acts of cruelty, one being that on April 8 he left home stating that he was going to Nevada to obtain a divorce. Then on information and belief plaintiff alleged that he proceeded to Idaho and instituted an action for divorce there. At the hearing on September 5, plaintiff offered evidence. Defendant offered none other than the Idaho decree which was admitted ‘for what it is worth.’

1. Effect on Right to Alimony, etc. of Introduction of the Idaho Decree.

The United States Constitution, article IV, section 1, requires that California give full faith and credit to the judicial proceedings of every other state. In Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, it was held that the spouse seeking severance of the marital relationship must be a bona fide resident of the state rendering the decree, and that where there is no personal appearance of the other spouse in the action the question of bona fide domicile may be litigated in another state, and that such state does not have to give the rendering state's decree full faith and credit. See also Knox v. Knox, 88 Cal.App.2d 666, 677, 199 P.2d 766. In Crouch v. Crouch, 28 Cal.2d 243, 249, 169 P.2d 897, 900, the California Supreme Court held: ‘* * * a decree of divorce rendered in one state may be impeached and denied recognition in another upon the ground that neither of the parties had domicil at the divorce forum, and this is true notwithstanding the recital in the decree from the other state of the jurisdictional fact of domicil or residence.’

Thus an ex parte decree of divorce, i. e., a decree rendered by a sister state pursuant to the application of only one spouse, may be attacked on the ground that that spouse was not a bona fide resident of the rendering state.

It repeatedly has been held that in California a wife has a right to support, attorney's fees and costs to prosecute an attack upon a foreign divorce where she did not personally appear in the foreign action. Baldwin v. Baldwin, 28 Cal.2d 406, 417, 170 P.2d 670; Knox v. Knox, supra, 88 Cal.App.2d 666, 676, 199 P.2d 766; Ottinger v. Ottinger, 141 Cal.App.2d 220, 225, 296 P.2d 347; Kopasz v. Kopasz, 34 Cal.2d 423, 424, 210 P.2d 846.

Defendant, while apparently conceding that the rule is as stated, contends that plaintiff did not make a sufficient attack upon the Idaho decree to bring herself within the rule. However, the record shows that she did. At the time she filed this action, there was no Idaho action pending. Until June 19, when the Idaho decree was rendered, there was nothing for plaintiff to attack. In his motion to set aside the temporary restraining order defendant pleaded the Idaho decree, but until his answer of September 3, defendant had not proffered the decree in the main action. At the hearing on September 5 defendant offered the decree in evidence. Thereupon plaintiff stated that she would offer evidence to show that the decree was based upon a fraudulent domicile. She then testified that defendant had stated on leaving California that he was going to Reno to get a divorce and would be back in six weeks. The ‘attack’ was as timely as legally possible and the evidence was sufficient to raise a reasonable question about the validity of the foreign decree. The fact that in the partition action plaintiff moved for a bond on the ground that defendant was a nonresident of this state was not necessarily an admission by plaintiff that defendant had a valid residence for divorce action purposes in Idaho. The partition proceeding was completely collateral to this, and the fact that it was there shown that he was residing in Idaho would not mean that he was a bona fide domiciliary of that state. As said in Gromeeko v. Gromeeko, 110 Cal.App.2d 117, 127, 242 P.2d 41, 47: ‘In this state of the decisions it is difficult to formulate a precise rule as to the degree of proof of marriage required upon an application for temporary support in an action for divorce or for separate maintenance. It is clear that the evidence need not be as complete and satisfactory as at the time of trial. When, as here, a valid marriage is admitted and the issue is the validity of a foreign divorce decree, it appears that the trial court has a larger measure of discretion to grant the application than when the fact of the marriage itself is in issue.’ See also Nacht v. Nacht, 167 Cal.App.2d 254, 334 P.2d 275, 284, where the court held that where a wife ‘in good faith challenges the continued existence of the property settlement, or its validity, regardless of whether she is right or wrong’ (an agreement in which she waived her right to attorney's fees), she is entitled to suit money to attack the agreement.

Moreover, as will be discussed next, if he were such a domiciliary the wife would still have the right to obtain funds in order to prosecute an action against the husband for her marital support rights.

2. A Valid Idaho Decree Would Not Bar Plaintiff's Support Rights.

At one time in California it seemed clear that once a foreign divorce decree was established, regardless of whether or not the wife had appeared in the foreign proceeding, the marital rights of the wife were completely wiped out. See Cardinale v. Cardinale, 8 Cal.2d 762, 769, 68 P.2d 351 (‘The trial court, having found no invalidity in the Nevada divorce decree, properly terminated the allowance to appellant of separate maintenance as of the date that decree was rendered’); Calhoun v. Calhoun, 70 Cal.App.2d 233, 237, 160 P.2d 923. However, since the time of these decisions, the United States Supreme Court has developed the doctrine of the ‘divisible divorce.’ In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, the court held that a foreign ex parte decree of divorce does not eradicate the obligations of a spouse under a former separate maintenance decree. This doctrine has been approved in California. See Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19; Lewis v. Lewis, 49 Cal.2d 389, 392, 317 P.2d 987. The doctrine was carried one logical step further in Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456, wherein the court held that a spouse's unadjudicated right to marital support was not eradicated by a foreign ex parte divorce decree, and that a wife could bring an action for her support in the state of her domicile even after the rendering of such a valid decree. This extension of the doctrine of the divisible divorce decree has also received the approval of the California Supreme Court. See Lewis v. Lewis, supra, 49 Cal.2d 389, 393, 317 P.2d 987.

The law seems clear that an exparte divorce decree which is based on a bona fide domicile of one spouse will be effective so as to terminate the marital status of the parties, but such a decree may not act so as to eradicate the marital obligations of the respective spouses. This is true, because the right to support is considered a species of property in the wife, and this ‘property’ may not be taken away from her without her having appeared in the foreign action to defend her rights. See Lewis v. Lewis, supra, 49 Cal.2d at page 393, 317 P.2d at page 990.

Even if it is assumed under the facts of the instant case that the decree of divorce obtained by the husband was valid so as to dissolve the marital status of the parties, the Idaho decree could not have the effect of taking away the wife's support rights, since the wife did not appear in the Idaho action. The wife's rights are to be determined by the law of the state of the wife's domicile at the time of the divorce, here California. Lewis v. Lewis, supra, 49 Cal.2d at page 394, 317 P.2d at page 991. In California a wife has a right under proper circumstances to support from the husband pursuant to either dissolution of the marriage or a separate maintenance decree. Civ.Code, secs. 139, 137.

The form of the action to be taken by the wife after a foreign ex parte decree to enforce her California support rights in all likelihood would not differ from a separate maintenance action, or a divorce action praying for permanent support. Here the complaint does contain a prayer for permanent support (in addition to the allegation that the husband filed his Idaho action). The complaint is adequate to put in issue the wife's right to support after the husband's ex parte divorce.

As the wife has a right to permanent support her right to both temporary support and costs and fees may not be denied. Certainly, these pendente lite awards are incident to her marital rights in California, which, it has been seen, may not be eradicated by the husband's Idaho ex parte decree. Further, if the wife has a right to permanent support, she of necessity must have a right to suit money to enforce such right. The Civil Code does not specifically say that a wife may receive pendente lite awards during the pendency of any action for support after the rendering of a foreign ex parte decree in favor of the husband. But in section 137.2 of the Civil Code the wife is given a right to such awards pending a separate maintenance action. The action for support taken by the wife after the husband's foreign ex parte decree is likely to be in the nature of a separate maintenance suit.

If it were construed not to be such an action, but an action of a novel nature not yet encountered in California, there would seem no reason why the wife should not be allowed pendente lite awards independent of statute. See Dunphy v. Dunphy, 161 Cal. 87, 118 P. 445, allowing pendente lite awards in an annulment action where the statute did not specifically authorize such.

In any event, it may be readily seen that even assuming the validity of the Idaho decree, and even assuming that the wife may in no event attack the granting of the divorce, the husband's obligation to support the wife remains in California, since the Idaho court may not take away the property of the wife without her appearing before that court. Thus, the trial court did not err in allowing the wife pendente lite orders for her California action.1

3. No Abuse of Discretion in the Award.

It is well settled that the amount of support and suit money in matrimonial actions rests within the sound discretion of the trial court. Frazier v. Frazier, 115 Cal.App.2d 560, 562, 252 P.2d 698. The trial court in exercising this discretion must be apprised of the essential facts and circumstances to justify the awards, which include the needs of the wife and the ability of the husband to pay. Sweeley v. Sweeley, 28 Cal.2d 389, 390, 170 P.2d 469; Loeb v. Loeb, 84 Cal.App.2d 141, 148–149, 190 P.2d 246.

Here, the trial court had before it the testimony of the wife, and the statement of her income and expenses. From this evidence it appeared that the wife's expenses exceeded her earnings by about $63 a month, with additional expenses anticipated.

The husband's counsel made no attempt to elicit any direct testimony regarding the husband's income and expenses. On cross-examination, the husband's counsel elicited testimony from the wife that the husband earned approximately $4,700 in 1956, that he had worked as a welder and had earned take-home pay of $89 a week. It also appeared that the husband had a government pension of $33 a month.

Without any further testimony as to the expenses of the husband, it cannot be deemed an abuse of discretion to award the wife the difference between her earnings and expenses totaling around $65, where the husband, by testimony elicited by the husband's counsel, appears to be either earning or to have the ability to earn a substantial income, in addition to a monthly pension.

The order is affirmed.


1.  There is considerable question as to whether the Idaho decree is valid in any respect in view of the fact that this action was filed prior to the filing of the Idaho action, defendant admitted personal substituted service prior to the filing of the Idaho action, and that defendant filed a general appearance in this action submitting to the jurisdiction of the California court, prior to the obtaining of the Idaho decree. See Lewis v. Lewis, supra, 49 Cal.2d 389, 317 P.2d 987; Vanderbilt v Vanderbilt, supra, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456. We deem it unnecessary to consider the question at this time as the trial court did not pass on it.

BRAY, Presiding Justice.

FRED B. WOOD and TOBRINER, JJ., concur.