REDIKER v. REDIKER (1949)

‘The way of transgressors is hard’ as the parties to this action have discovered. Appellant in her suit for separate maintenance and support alleged that she and respondent were married November 28, 1939; that he had wronged her by his cruelty and adultery, and by reason thereof demanded judgment for support and for her share of the community property. He responded with a denial of the marriage and of the unlawful acts and by cross complaint declared that at the time he led appellant to the connubial alter she was the wife of one Rheingold Graf. The court soon determined the falsity of the cross complaint in that appellant had been divorced from Graf in 1933. But from the evidence the court found that at the time he engaged in the nuptial rites with appellant, respondent was the husband of Bessie Rediker. From this finding the court concluded that the marriage of the parties was void, awarded appellant certain moneys and adjudged the marriage to be annulled. While the appeal was from the judgment in its entirety, appellant has abandoned all save that portion of the judgment which annuals the marriage.

For the purpose of proving his marriage to Bessie respondent introduced the decree of a nisi prius court of Florida dissolving respondent's marriage to that lady. This decree bore date of August 28, 1944, almost five years after his marriage to appellant.

The ruling of the court in admitting the decree was prejudicial error. While appellant contends that it was a variance from the cross complaint and proved nothing there alleged, she is in no position to profit by such contention since she failed at the trial to specify the variance as a ground of her objection. Having failed so to specify she cannot question the court's ruling on appeal. Cushing v. Pires, 124 Cal. 663, 665, 57 P. 572. But the general objection to the Florida decree was sufficient to bar its admission. It was not admissible on any ground. It was offered to prove respondent's marriage to Bessie. In no sense was the decree or the inference to be drawn from its binding upon appellant. Since she was not a party to the action and did not witness the trial, the decree was hearsay. Having been entered nine years after his illicit relations with appellant had commenced and five years after respondent's ceremonial alliance with appellant was enacted it could have been procured for the very purpose of establishing a basis for annulment of the marriage to appellant. It is binding only upon the parties to the action, but not upon strangers.

While a finding of marriage usually precedes the judgment of divorce, still the res determined by decree is the freedom of the parties litigant from marital obligations to each other, not necessarily the existence of a prior marriage. Blumenthal v. Blumenthal, 97 Cal.App. 558, 561–562, 275 P. 987; Freeman on Judgment, sec. 752, p. 1582. See Petry v. Petry, 47 Cal.App.2d 594, 595, 118 P.2d 498.

The court found that ‘for many years prior to and at the time of said purported marriage ceremony, defendant was lawfully married to and was the husband of a woman known as Bessie Rediker’ which marriage ‘was not dissolved until August 28, 1944.’ From such finding the court concluded that ‘as the defendant was the lawful husband of Bessie Rediker at the time he purportedly contracted marriage with the plaintiff, the purported marriage with the plaintiff is void. It becomes the duty of this court on its own motion, in behalf of the state and in pursuance of the state's long established policy to declare said purported marriage * * * to have been and to be void.’ While the conclusion follows the quoted finding, there is no competent evidence in the record to support the factual determination.

Appellant contends that respondent was estopped to assert the validity of their marriage since she, in good faith, relied on a previous Cuban decree allegedly divorcing respondent from Bessie, citing Harlan v. Harlan, 70 Cal.App.2d 657, 161 P.2d 490; In re Estate of Davis, 38 Cal.App.2d 579, 584, 101 P.2d 761, 102 P.2d 545; Hengsen v. Silberman, 87 Cal.App.2d 668, 197 P.2d 356. The cited cases are not pertinent. They arose out of voidable marriages wherein each of the plaintiffs had done some act contrary to public policy and good conscience to induce the marital contract or had assented to the marriage attacked and for that reason was estopped to assert its invalidity. But sound equitable principles entitle appellant to an estoppel against respondent's plea of the invalidity of the Cuban decree even though she did not plead it. Indeed, she had no opportunity to do so. The asserted marriage to Bessie was not pleaded by respondent as ground for annulment. It was declared by respondent only after he had failed to prove an existing union of appellant and Rheingold. In response to Rediker's new claim that he was the husband of Bessive when he contracted a marriage with appellant she replies that for sometime prior to November 28, 1939, she and respondent had lived in an illicit relationship as testified by respondent. It was established by competent proof that upon application for the issuance of a license to a person to be married, it is required by Cuban law that if he assets a former marriage he must produce a copy of the decree that effected its dissolution. In view of such statutory requirement, it is presumed that at the time of his application in November, 1939, for marriage he presented to the notary who officiated a copy of some decree of divorce. Since it could not have been the Florida decree, which was entered five years later, it must have been the Cuban decree which had been entered in January, 1939. If he based his application upon the Cuban decree, Alice [appellant] relied on it and if it was not valid, her reliance was to her detriment. In that event, respondent is estopped now to assert the validity of the Cuban decree.

An authenticated copy of the proceedings instituted by respondent before the Court of First Instance at Havana was received in evidence. This document discloses that a decree of divoce dated January 27, 1939, was granted to respondent against Bessie. Basing its finding upon the testimony of respondent the court below determined that the Cuban decree was void in that Bessie ‘was never served with process in any such proceedings * * * if any were had, and not trial or hearing in connection with any such proceedings * * * for the purpose of divorcing the defendant from said Bessie Rediker.’

In the first place, there is no reason to doubt that such divorce proceedings were had. The authenticated document from the clerk of ‘The Court of First Instance For the Southern District of This Capital’ discloses that in the action brought by Abraham Rediker against Beatriz [Bessie] Yalkut, a divorce was granted on January 27, 1939; that the court had jurisdiction of the complaint; that the matrimonial bonds existing between Abraham and Beatriz ‘are hereby dissolved leaving them free to contract new marriages.’ The decree ordered that ‘defendant be officially notified of this judgment’ by posted notices at the court and ‘published also in the official Gazette of the Republic * * * she being in default.’ No ‘recourse’ was taken against the judgment ‘within the legal term.’ Now what is the nature of the impeachment of that decree? Only the testimony of respondent. What was the nature of his testimony? He testified that he did not know whether he had instituted an action for divorce in the Cuban courts or not. ‘I had some friend there and I told him about it and that's all I know. I just gave him seventy-five dollars and I never heard of it anymore and that's all there was.’ He has not seen his attorney who represented him since the time ‘when I got divorced * * * when he made that paper out for me * * * he was was just recommended. I went and told him and he said all right * * * I don't remember signing any papers * * * I told him I wanted a divorce * * * he told me I was divorced and I never saw anything * * * I went around and represented that I was a single man * * * I met Alice in 1935. We then began living together. That was before I got the divorce from Bessie. In 1936 I gave her a lot and built a house on it. I married Alice in November, 1939.’ Such evidence was incompetent to impeach the record of the Cuban court. This can be done only by the means prescribed by law. Code Civ.Proc. § 1916. Respondent's testimony was therefore inadequate and ineffectual.

Since the laws of Cuba are presumed to be the same as those of California unless shown to be otherwise, DeYoung v. DeYoung, 27 Cal.2d 521, 526, 165 P.2d 457; Wickersham v. Johnson, 104 Cal. 407, 411, 38 P. 89, 43 Am.St.Rep. 118; Perkins v. Benguet Consolidated Mining Company, 55 Cal.App.2d 720, 768, 132 P.2d 70, the decree of the Cuban court divorcing respondent from Bessie in 1939 must be a valid judgment. There is no proof of its invalidity. The court had jurisdiction, there was neither collusion of the parties nor fraud on the part of appellant herein. Sec. 1916, supra. The ridiculous testimony of respondent that he gave a lawyer $75 to get a divorce from Bessie and that he knows nothing more about it is entitled to no respect. His callous disregard for the integrity of the courts that gave him protection is an indictment of his character and his testimony that he knew nothing of what his lawyer did not that he never saw what was done is too crude to challenge credulity. The admission of his testimony was prejudicial error.

Why should this , lothario receive such generous encouragement at the hands of a court as to accept his narrative to impeach the validity of a judgment of a court of justice whose robes are unsullied? Not only was his testimony calculated to deceive the court but he was impeached by his conviction of a felony. This fact alone should have infected his entire testimony with moral leukemia and have induced the trial court to look askance at all he said. Instead, the learned and astute trial judge brushed it aside with the observation that ‘it is easier to get a criminal judgment against a man than it is to get a judgment for a hundred dollars against him in a good, hard, contested civil case.’

Who will believe that a Cuban court would enter a divorce decree without the appearance of the plaintiff? or without service of process on the defendant? Judges in Cuba as in California make errors but they do not embezzle the power entrusted to them to aid pirates or to accommodate a temporary resident of the island to deceive the public. Rediker himself instituted the action for divorce against Bessie. He caused a decree to be entered and for that additional fact is estopped to deny its validity. He had been living with appellant five years when he applied in Cuba for the divorce. Because of their previous long intimacy it is inconceivable that he would have withheld knowledge of the decree from her. He is now estopped to deny that he did. In Brown v. Brown, 266 N.Y. 532, 195 N.E. 186, 187, the wife brought an action for support. Her husband attempted to show that the divorce he had procured from his first wife was invalid and that therefore his marriage to plaintiff was void. The Court of Appeals of New York held that he ‘may not be heard to impeach a decree or judgment which he himself has procured’.

Not only was respondent estopped to attack the Cuban decree divorcing him from Bessie, not only was the Florida decree incompetent proof of an existing marriage at the time of his contract with appellant but there is a strong presumption that the legal status of both parties was such as to qualify them to celebrate a marriage. Code Civ. Proc. § 1963, subd. 30; Budd v. Morgan, 187 Cal. 741, 744, 203 P. 754; Kelsey v. Miller, 203 Cal. 61, 90, 263 P. 200; In re Estate of Elliott, 165 Cal. 339, 343, 132 P. 439; Hite v. Hite, 124 Cal. 389, 394, 57 P. 227, 45 L.R.A. 793, 71 Am.St.Rep. 82; In re Estate of Crawford, 69 Cal.App.2d 609, 610, 160 P.2d 65; Moran v. Superior Court, 38 Cal.App.2d 328, 332, 100 P.2d 1096. Semper praesumitur pro matrimonio.

From the proof the findings were made that the celebration of their marriage was unnecessfully attempted by the parties before a notary public in Havana and that such proceedings ‘were not in full technical compliance with the applicable Cuban law.’ By virtue of such finding respondent contends that the marriage was void ab initio. In such contention he is not supported by reason or authority. The primary feature of a marriage contract is the agreement of the parties. That they do agree in the presence of others accentuates the solemnity of their vows. That they choose an official designated by the state to pronounce the consummation of a new status multiplies the seriousness of the agreement. While no one has attempted to render meaningless that statutory requirements of the procedure for a marriage it is the law that while section 68 of the Civil Code governs the manner of solemnizing a marriage, still noncompliance therewith does not invalidate the new status effected by the attempt to comply. People v. Lenninger, 22 Cal.App.2d 440, 441, 71 P.2d 306; Krizman v. Industrial Accident Commission, 14 Cal.App.2d 419, 422, 58 P.2d 405. Since the laws of Cuba are presumptively the same as our own the failure of the officiating notary to adhere strictly to the Cuban requirements did not invalidate the marriage certified by him at the request of respondent.

That part of the judgment annulling the marriage of the parties is reversed.

MOORE, Presiding Justice.

WILSON, J., concurs. McCOMB, J., concurs in the judgment.