RIVIECCIO v. BOTHAN (1945)

This action involves the marital status of the parties thereto. It is denominated by plaintiff as an action for declaratory relief. The judgment was in favor of plaintiff and the defendant appeals. The controversy arises out of the following factual situation: Giovanni Rivieccio and Anna Zaccardelli were married in Quincy, Massachusetts, in 1924, and parted in Italy in 1928. Anna returned to Massachusetts and Rivieccio went to Australia, and several years later located in San francisco. They corresponded frequently up to 1931; but after they separated in Italy in 1928 they never again saw each other. In December, 1932, Rivieccio brought an action for divorce in San Francisco against his wife upon the ground of desertion. It was a childless marriage, and no property rights were involved. At all times prior to the commencement of the action for divorce, during the pendency thereof, and at all times thereafter up to the filing of the present action in 1942, Anna Rivieccio resided either in Massachusetts or in the state of New York; and service of summons in the divorce action was had by publication and mailing based on Rivieccio's affidavit, in which it was averred ‘That the last known place of residence of defendant was and is Hancock and Water Streets, Quincy, Massachusetts.’ On the date that the order for publication was made Rivieccio's attorney mailed a copy of the summons and complaint to ‘Anna Zaccardelli Rivieccio * * * at Hancock and Water Streets, Quincy, Massachusetts.’ There was no appearance in behalf of the wife, and on April 5, 1933, Rivieccio was granted an interlocutory decree. The final decree was entered on April 10, 1934 and on September 17, 1934, Rivieccio married Edna Bothan, a resident of Australia. The marriage took place in Australia, and two months thereafter they adopted a child born unto them out of lawful wedlock in Australia on January 22, 1930. Shortly after the adoption proceedings they all came to San Francisco and lived together until December 23, 1940, when Rivieccio was killed in Oakland in an accident which occurred during the course of his employment as truck driver for Columbia Machine Works. In 1942, Anna, the divorced wife, learned for the first time, so she claimed, of Rivieccio's death, and of the divorce and his subsequent marriage. She was then living in Boston, and a few months later she came to San Francisco, and on November 12, 1942, brought the present action against Edna Bothan Rivieccio.

The complaint bears the title ‘Complaint for Declaratory Relief’; but an examination of the allegations and the prayer thereof shows that the cause of action set forth therein is one to obtain a judgment annulling the interlocutory and final decrees of divorce upon the ground of extrinsic fraud, which if granted would operate necessarily as a nullification of the marriage between Rivieccio and Edna. The charge of extrinsic fraud was based on allegations that the affidavit made by Rivieccio for the publication of summons contained two false averments, which it is alleged he knew to be false. The first was that after stating his case fully to his attorneys he was advised by them and that he verily beleved he had a good cause of action for divorce against his wife upon the ground of desertion; and the second was ‘That the last known place of residence of the defendant was and is Hancock and Water Streets, Quincy, Massachusetts.’ The allegations of fraud were put in issue by the answer, and the statute of limitations and laches were pleaded as special defenses. The judgment ordered, adjudged and decreed: ‘1. That the Interlocutory and Final Decrees of Divorce * * * be and the same are hereby annulled, vacated and set aside. 2. That plaintiff is the surviving widow of Giovanni Rivieccio, deceased.

The three principal findings upon which the judgment is based are, first, that the averment in the affidavit made by Rivieccio that after stating his case to his attorneys he was advised by them and that he verily believed he had a good cause of action against his wife upon the ground of desertion, was false, and known by him to be false; secondly, that the averment in the affidavit ‘That the last known place of residence of the defendant was and is Hancock and Water Streets, Quincy, Massachusetts,’ was false and known by Rivieccio to be false. In amplification of the last finding the court further found that Hancock and Water Streets do not intersect; that plaintiff had never lived on either street, and that both streets were located a considerable distance from where plaintiff resided; and the court further found that plaintiff did not receive any notice of the pendency of the action nor have any knowledge that it was pending. The third principal finding was that plaintiff was not guilty of laches, and that the action was not barred by the statute of limitations. Insufficiency of the evidence to support the above findings is one of the main grounds urged for reversal.

It is well settled that in an action to set aside a decree of divorce upon the ground of extrinsic fraud the burden rests on the party seeking to set it aside of proving the fraud charged, and that such charge must be established by the clearest and most satisfactory evidence. Furthermore it is held generally that before a decree of divorce will be set aside many factors will be taken into consideration, among them being whether the party seeking the relief has been guilty of laches; also the fact, if it be such, that the party who has obtained the divorce has since died; and where it appears that the party to whom the divorce was granted has remarried and there has been delay in seeking to vacate the decree, the court will take into consideration also the public policy to prevent the bastradizing of children of the second marriage and also the resulting injury to the innocent party to the second marriage. 17 Am.Jur. pp. 375–378. In dealing with charges of fraud generally the courts of this state have said repeatedly that the presumption is in favor of honesty and fair dealing, and that the burden is upon the party asserting fraud to prove it by substantial evidence; that if an inference of fraud is drawn, it must be a reasonable inference, not a mere suspicion, and that if two inferences may be drawn from the facts which are equally reasonable it is the duty of the court to adopt the one favorable to the presumption. American Box & Drum Co. v. Harron, 44 Cal.App.2d 370, 112 P.2d 332. And where fraud is charged as the basis for setting aside a judgment it is said: ‘The grounds upon which a judgment legally entered may be set aside must be of a very substantial character. A stronger showing is required to justify the annulment of a judgment than is required for the opening of a default as provided by section 473, Code of Civil Procedure.’ Wattson v. Dillon, 6 Cal.2d 33, 56 P.2d 220, 224.

In the present case appellant contends that respondent failed to meet the burden of establishing a case of extrinsic fraud, and that in any event the evidence shows as a matter of law that plaintiff was guilty of laches in that she did not bring the action to annul the divorce until approximately eight years after the decree had become final, and until two years after Rivieccio's death. It is evident that the finding based on the averment in Rivieccio's affidavit that he verily believed he had a good cause of action against his wife for desertion cannot legally serve as support for the judgment of annullment, for even assuming as found that the averment was false and known to be false, it would amount to no more than intrinsic fraud (Godfrey v. Godfrey, 30 Cal.App.2d 370, 86 P.2d 357; McGuinness v. Superior Court, 196 Cal. 222, 237 P. 42, 40 A.L.R. 1110); and the rule is that ‘If the fraud is intrinsic and the time for appeal has expired, then the party seeking relief from such intrinsic fraud must, under the provisions of section 473 of the Code of Civil Procedure make application for such relief within six months after judgment.’ Tomb v. Tomb, 120 Cal.App. 438, 7 P.2d 1104, 1105; see also McGuinness v. Superior Court, supra. In actions based on charges of extrinsic fraud the rule is different. See Chiarodit v. Chiarodit, 218 Cal. 147, 21 P.2d 562.

In the latter class of cases the court has the inherent power to set aside the decree of divorce regardless of the limitation prescribed by section 473, even after the death of the party to whom the divorce was granted, provided the action is brought without delay after it is learned that the divorce has been granted. McGuinness v. Superior Court, supra; Chiarodit v. Chiarodit, supra, and cases cited therein. And where it is proved that the defendant in the divorce action was unaware of the pendency thereof because the plaintiff had made a knowingly false declaration in his affidavit for publication of summons as to the residence of the defendant, in consequence of which process was mailed to the defendant at an address known to be false, a case of extrinsic fraud is established sufficient to set aside the decree. 9 Ca.Jur. p. 748; Aldrich v. Aldrich, 203 Cal. 433, 264 P. 754.

With reference to the soundness of the findings herein on the issues of extrinsic fraud and laches, the record shows among other facts the following: Rivieccio went to Italy in 1928 to visit his mother, who was fatally ill, and he was soon joined there by his wife. The mother died shortly after their arrival, whereupon Anna returned to Massachusetts. Such testified that her husband did not return with her because he had entered the United States illegally—‘by jumping ship’; and that the next she heard from him he was in Australia. She stated that thereafter and up to the end of 1930 they corresponded frequently, in affectionate terms, and that he always indicated he would again join her in this country. Many of the letters she received from him were produced in court. The last one so produced was written in 1930. After Rivieccio arrived in Austrialia he worked for about a year as a peddler, and then obtained employment with the Matson Navigation Company as a steward on its steamers operating between Australia and San Francisco, and some of the letters Anna received from him were written on the ship's stationery.

While Hancock and Water Streets in Quincy do not intersect they end within a few blocks of each other. All of the streets in that vicinity are exceedingly short and circuitous. Before going to Italy the Rivieccios lived on Granite Street, a short street just two or three blocks from the termini of Hancock and Water Streets. Anna's family lived nearby on the same street. The family, including Anna, had been residents of Quincy for many years. After Anna returned from Italy she lived at three different places in Quincy, but they were all within two or three blocks of the termini of Hancock and Water Streets; and much of the time thereafter she went under the assumed name of Ried. Furthermore the Zaccardeli family continued to live in the same locality up to the year 1942.

By occupation Anna was a waitress, and in 1931 she moved to New York and then to Boston, wherein she lived at several different addresses. In 1934 she returned to Quincy and lived with her mother until 1939, at which time she again moved to Boston and lived at different places up to the time she came to California in 1942. She testified that in 1933 she was told by a friend that Rivieccio was living in San Francisco and she wrote to him at the address given her; that in reply Rivieccio said nothing about the divorce and gave as his reason for not having the money Quincy that he did not have the money to get there; that soon afterwards she sent him $100 by Western Union, and not receiving any response from him for a while she wrote again and in reply was told that he had been in some sort of trouble and it was necessary to use the money she had sent him for attorney's fees; that thereafter she wrote him again several times, but that her letters were returned undelivered. It is significant, however, that none of the correspondence which she claimed passed between them in 1933 was produced in court. She testified that she had destroyed it. She further testified that between 1933 and 1942 she had made inquiries as to his whereabouts from people she thought might know, but was unable to learn anything definite until 1942.

The defendant in the present action testified that she met Rivieccio in Australia soon after his arrival there, at which time she was 18 years of age and living with her parents; that several weeks after meeting him their relations became intimate and that when she realized she was going to have a baby she told him about it; that she then learned for the first time that he was married; that in 1930 he obtained employment with the Matson company, but that he continued to support the child, and that during the layover period of the steamer in Australia he lived on the steamer but visited her and the child at her home; that after the birth of the child he talked about securing a divorce, but that she had nothing to do with the commencement of his action and had no knowledge whatever of the contents of the pleadings. She further testified that so far as she knew Rivieccio never received any letters from Anna after she (the defendant) became acquainted with him.

The record discloses other facts and circumstances pertaining to these particular issues, but it would seem unnecessary to go into greater detail, for it is apparent that the situation is not one wherein it may be held as a matter of law that the findings are entirely wanting in evidentiary support. Nevertheless the record does reveal many facts and circumstances other than those above narrated which in our opinion would have legally supported findings on those issues adverse to the plaintiff herein.

Aisde from the question of the soundness of the findings on the issues of extrinsic fraud and laches, however, the record does call for reversal on other grounds. As said in Britton v. Bryson, 216 Cal. 362, 14 P.2d 502, 505, ‘It is now well settled in California that subsequent to the death of one of the parties, the other may have said decree set aside upon proof that the judgment of divorce was procured by extrinsic fraud. McGuinness v. Superior Court, 196 Cal. 222, 237 P. 42, 40 A.L.R. 1110; [Tomb] v. Tomb, 120 Cal.App. 438, 7 P.2d 1104.’ But in this connection the courts have held that such an action may not be maintained by the divorced spouse after the death of the party to whom the divorce was granted unless the divorce decree of the subsequent action to set it aside involve some property right in which the surviving spouse is beneficially interested. This doctrine is founded upon the reasoning that if some property right is not involved in which the surviving spouse is beneficially interested, the only object which could be attained by such an action would be sentimental in its nature, for in any event the death of the parties effectually severs the marriage relationship and the principal effect of the decree of divorce would not be affected. In other words, such an action is permitted after the death of the party obtaining the divorce not for the purpose of continuing the controversy touching the right to the divorce itself, but for the ascertaining of the property rights of the parties involved. 17 Am.Jur. 378, 379. In all three of the California cases which have been brought to our attention upholding judgments annulling a divorce after the death of the party to whom the divorce was granted involved some such property rights. See McGuinness v. Superior Court, supra; Tomb v. Tomb, supra; Britton v. Bryson, supra. It follows, therefore, in the present case that it was essential to the rendition of a valid judgment setting aside the divorce that the trial court find that some property right was involved in which the plaintiff herein was beneficially interested; and no such finding was made. In paragraph XXIX of the complaint as amended it is alleged that there is pending before the Industrial Accident Commission ‘an inquiry for the purpose of determining the award of compensation of the widow of the said Giovanni Rivieccio * * *’; and in paragraph XXX of said complaint it is alleged that the award ‘is claimed by the plaintiff and the defendant herein, both of whom have represented themselves to the Commission to be the widow of the said Giovanni Rivieccio * * *.’ But the allegations of these paragraphs were denied in the answer, and no evidence was introduced in support of the allegations, nor were any findings made on the issues raised thereby. It would seem clear, therefore, that in the total absence of any finding that some property right is involved in which the plaintiff is beneficially interested, the judgment herein annulling the divorce is not sustainable. Counsel for defendant herein introduced in evidence an order made by the probate court in San Francisco on February 26, 1941, setting aside to Edna Rivieccio as surviving widow the balance of a savings account representing the earnings of her deceased husband; but at the time the order was received in evidence counsel for plaintiff objected thereto; and neither in plaintiff's complaint nor in the trial court's findings is any reference made to that order. It must be presumed, therefore, that plaintiff makes no claim with respect thereto.

Morever and in any event it is the established rule that where an action is brought to set aside a divorce upon the ground of extrinsic fraud after the death of the party to whom the divorce was granted, which involves some property right, all persons whose interests will be adversely affected by the vacation of the judgment or decree must be made parties defendant to the action and must be served with summons. 17 Am.Jur. p. 375.

In the present case, according to the allegations of the complaint, the action was brought upon the theory that the property right involved consisted of an Industrial Accident Commission award. That being so, under the rule above stated the adopted child was a necessary party to the action for the reason that as a dependent of the deceased, the child was, under the provisions of the Workmen's Compensation Act, beneficially interested in the award. But it was not made a party defendant to the action; therefore, under the theory on which the action was brought, plaintiff was not entitled to a judgment because one of the persons whose rights were adversely affected thereby was not made a party defendant to the action.

It is our conclusion, therefore, that for the reasons stated the judgment should be reversed; and it is so ordered.

I dissent.

It is not claimed by appellant that the findings are wanting in evidentiary support, but rather that ‘The trial judge did not have a profound grasp of the rules of equity or of evidence applicable to this case.’ The conduct and disposition of the issues demonstrate the contrary. I adopt the memorandum opinion of the trial judge as expressive of my views on the subjects therein mentioned. It reads as follows:

‘I have concluded that plaintiff is entitled to the relief asked for. The decedent, Giovanni Rivieccio, in his affidavit for publication, adopted and made his complaint a part of his affidavit. In that complaint he alleged that the plaintiff herein had deserted him on or about May 14th, 1927, and that thereafter they had lived separate and apart. I find that allegation to be wholly and wilfully false. It was at that time, it will be recalled, that the decedent went to Italy where plaintiff joined him in October of the same year remaining with him until the following March. His letters to plaintiff beginning in December, 1925, and running to September, 1930, which have been put in evidence, are wholly inconsistent with that charge of desertion. Moreover, in his affidavit for publication, decedent also states that the last residence of plaintiff that was known to him was ‘Hancock and Water Streets, Quincy, Mass.’ Not only do those streets not intersect but, according to the uncontradicted testimony of plaintiff, she had never lived on either street. I can imagine the decedent not recalling a number of the street nor, possibly, the name of the street on which plaintiff last lived, but I cannot reconcile such a meaningless address as he gave with good faith on his part. It will be recalled that decedent had, himself, lived in Quincy for a considerable period of time. It will also be recalled that, according to the uncontradicted testimony of plaintiff, Quincy, at that time, had a population of but approximately forty-four thousand.

‘Whatever room for argument there may be on this question of the good faith of the decedent in the mannter of the place of residence there is none in the matter of the alleged desertion. In my opinion the following cases are decisive on the question of plaintiff's right to the relief asked for: Dunlap v. Steere, 92 Cal. 344, 28 P. 563, 16 L.R.A. 361, 27 Am.St.Rep. 143, cited with approval in Doyle v. Hampton, 159 Cal. 729, 733, 116 P. 39; Persons v. Weis, 144 Cal. 410, 77 P. 1007 (see headnote 5); Williams v. Williams, 57 Cal.App. 36, 206 P. 650; Wells v. Zenz, 83 Cal.App. 137, 142, 256 P. 484.

‘I should add that the circumstances do not suggest laches or any lack of diligence on the part of plaintiff in instituting her action.’

Appellant did not contend in her briefs that the minor child should have been made a party to the action. The matter was mentioned—rather casually as I recall—by one of the justices during the oral argument, but the subject was not briefed. In my opinion this case should not be reversed upon that ground without opportunity given respective counsel to be further heard. If the ground of improper findings is sound, why is it necessary to hold as a ground of reversal that the child should have been made a party to the proceeding? If the latter point is sound and is the real ground of reversal, then the case should be returned to the lower court with directions to make the child a party.

KNIGHT, Justice.

PETERS, P. J., concurs.