WEBER v. Paul D. Weber, Real Party in Interest.* (1959)

Petitioner, hereinafter called ‘Marie’, is the plaintiff in an action for divorce against real party in interest Paul D. Weber, hereinafter called ‘Paul.’

In the divorce action Marie obtained an order requiring Paul to show cause why he should not be required to pay her alimony pendente lite, costs and attorney's fees for the prosecution of the action. When the order to show cause came on for hearing Paul offered in evidence a decree of divorce entered on August 16, 1956, in the First Judicial District Court of the State of Nevada in and for the county of Ormsby, purporting to grant Paul an absolute divorce from Marie. The respondent court limited the evidence to be received to that bearing upon the jurisdictional validity of the Nevada decree and thereupon entered its order creading as follows:

‘For the purpose of this hearing, there is found to be a valid decree of divorce between the parties and there is no present marriage between the parties hereto. The Court is without jurisdiction to grant relief prayed for.

‘Dated: April 1, 1959.’ (Emphasis added.)

The evidence received by the respondent court developed the following facts: Marie and Paul were married in the city of Los Angeles, state of California on October 4, 1940, and they remained residents of that county and state until early in 1950 at which time Paul was employed by the United States Corps of Engineers for work in North Africa. The parties then moved to Morocco and resided there together until some time in 1952 at which time Paul became infatuated with another woman and at his request Marie returned to the home which the parties owned in Los Angeles county. In 1956 Paul terminated his employment in North Africa. He brought his paramour to the United States and directly to Nevada. They took up residence in Reno, Nevada, and on the 43rd day after arrival there Paul filed his action for divorce. He did not establish bank accounts in Nevada, did not purchase any property in Nevada and did not register to vote there. On securing his decree of divorce he came to Los Angeles where he was married to the woman who had accompanied him from Morocco and he has continued to reside in Los Angeles since that time. Marie did not appear in the Nevada action and was not served with process in the state of Nevada.¹

Marie asserts that as the Nevada court did not have jurisdiction over her person its decree did not terminate her right to support by Paul even assuming the Nevada decree was entitled to full faith and credit in California insofar as it terminated the marriage between the parties.

She bases her contention that the Nevada decree did not terminate her rights to support upon the decision of the United States Supreme Court in Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; and the decisions of our Supreme Court in Lewis v. Lewis, 49 Cal.2d 389, 317 P.2d 987. In Vanderbilt v. Vanderbilt, supra, the petitioner Cornelius Vanderbilt had established residence in Nevada and there brought an action for divorce against his wife who was domiciled in New York. He caused summons and complaint to be personally served upon the wife in New York. 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; 553. Mrs. Vanderbilt did not appeal in the Nevada action and a default decree was entered awarding Cornelius an absolute divorce and purporting to terminate any duty of Cornelius to support his wife. Thereafter Mrs. Vanderbilt instituted an action in the state of New York praying for alimony. This action was commenced pursuant to a statute of New York which in substance provides that in an action for divorce or separation maintained by a wife where the court refuses to grant such relief by reason of the fact that the husband had in a previous action in which the court had no jurisdiction over the person of the wife, obtained a decree of divorce, the court may nevertheless enter a decree of maintenance of the wife by the husband. § 1170–b, New York Civil Practice Act. The New York court held that the Nevada decree was valid and entitled to full faith and credit in New York insofar as it terminated the marriage but was ineffective insofar as it attempted to terminate Mrs. Vanderbilt's right to support as granted to her by the laws of her domicile, New York. The Supreme Court of the United States having granted certiorari upheld the judgment of the New York Court of Appeal saying in part:

‘Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York to financial support from her husband.’ [354 U.S. 416, 77 S.Ct. 1362.] (Emphasis added.)

Lewis v. Lewis, supra, involved an action brought in this state to establish and enforce in this state a decree for separate maintenance rendered by a court of the state of Illinois. The facts in that case briefly stated were: The parties were husband and wife domiciled in Illinois; the husband brought an action for divorce in an Illinois court; the wife answered and cross-complained for separate maintenance. After answering the cross-complaint the husband established domicile in Nevada and brought an action in that state for divorce. He secured a decree which granted him a default divorce (the wife not appearing), the decree purported to release the husband from all obligations of support. Thereafter the Illinois court entered judgment for the plaintiff on her cross-complaint and awarded her alimony or support money. In the California action the husband maintained that the Nevada decree terminated the marriage and his obligations to support the wife and that the Illinois court was without jurisdiction to enter its judgment awarding the wife alimony. The Supreme Court of this state by its decision held that under the law of Illinois the right to support survives a foreign ex parte decree of divorce and that therefore the Illinois court had jurisdiction to enter its judgment awarding alimony and further held that ‘[t]he effect on a wife's right to support of a foreign, ex parte divorce secured by her husband is determined by reference to the law of the state of the wife's domicile at the time of the divorce, in this case the law of Illinois.’ 49 Cal.2d at page 394, 317 P.2d at page 991. (Emphasis added.)

It is evident that under these decisions the wife's right to seek alimony after the termination of the marriage by an ex parte foreign decree of divorce rendered in an action in which the court did not have jurisdiction over her person, is dependent upon whether the law of the state of her domicile makes the right to support survive the termination of the marriage. Under the statute of this state the right of a party to the marriage to support from the other is limited to the period when the parties are husband and wife. Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528, 529. The right of one party to the marriage to maintenance by the other is provided for by sections 136, 137, 137.2 and 139 of the Civil Code. In Dimon v. Dimon, supra, in commenting on these statutes the Supreme Court said in part:

‘An examination of the law on the subject indicates merit in the defendant's contention that in this state a wife's right to recover alimony or support for herself is limited to the period when the parties are husband and wife.’ (The court here directs attention to §§ 136, 137 and 139 as they existed prior to their amendment in 1951.)

‘The language of these sections shows a consistent legislative purpose to confine the powers of the court to decree support in any form to the period when actions for divorce, annulment and separate maintenance are pending, including time on appeal and such further time as may be within the scope of the decree in the particular action. The amendments to Sections 137, 138 and 139 since this action was commenced, Stats. 1951, vol. 2, p. 3910, do not change the provisions of these sections in matters here relevant. Primarily, the amendments broaden the provisions for separate maintenance tenance where the marriage still exists. The language employed indicates a continued legislative purpose to limit the time during which application for alimony and support may be made. Our courts have consistently recognized that the existence of the marital status is a prerequisite to the granting of alimony. (Citations.)'² (Emphasis added.)

We think therefore that it must be held that if the Nevada decree was valid, the petitioner's right to support was terminated by that decree. We realize that this is an anomalous situation for while the Nevada court did not have the power to by its decree deny support, it did have the right to terminate the marriage relationship and this ipso facto terminated petitioner's right to support for her right to support was, under the law of this state, dependent upon the existence of the marital relationship. This anomaly is inherent in the theory of divisible divorce decrees adopted by the Supreme Court of the United States and that that court recognized the anomaly is made clear by the dissenting opinion of Mr. Justice Frankfurter in Vanderbilt v. Vanderbilt, supra. See 354 U.S. 416, 77 S. Ct. 1360, 1 L.Ed.2d at page 1463.

In arriving at our conclusion that a husband's or wife's right to support from the other is dependent upon the existence of the marital relationship, we have not overlooked the decision of the District Court of Appeal for the First District in Hudson v. Hudson, —— Cal.App.2d ——, 339 P.2d 618. That case involved an appeal from an order granting plaintiff alimony, attorney's fees and costs pendente lite, which order was made after the entry of a foreign decree of divorce terminating the marriage relationship. The foreign decree was entered in an action commenced after the California action was commenced and after the defendant husband had entered an appearance therein. The decision in the District Court of Appeal insofar as it upheld the order appealed from upon the ground that ‘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’ is undoubtedly correct and fully supported by the decisions cited by the court upon that point. However, for the reasons heretofore stated in support of the conclusion heretofore stated, we cannot agree with the decision insofar as it holds that in California the right to support survives the termination of the marriage by a valid foreign decree.

The fact that the dissolution of the marriage destroys the right to support does not destroy the power of the court to award alimony, costs and attorney's fees pendente lite in an action brought for divorce or separate maintenance in which the validity of a foreign ex parte decree of divorce is challenged. In such an action the court has jurisdiction to award alimony, attorney's fees and costs pendente lite provided that the marriage between the parties is proven. In the present case the validity of the marriage between Paul and Marie is not attacked. Marie had the right to bring an action for divorce or separate maintenance and to in that action challenge the bona fides of Paul's domicile in Nevada and thus the validity of the Nevada decree. The decision of the respondent court upon the order to show cause could not finally determine the validity of the Nevada decree and as that decree if valid did in fact terminate the right to support, it is our opinion that the respondent court abused its discretion in refusing to hear evidence as to Marie's necessity for support, attorney's fees and costs in order that she might, in the courts of this state, protect her right to permanent support through an attack upon the validity of the Nevada decree. We think this is made clear by the Supreme Court in Baldwin v. Baldwin, supra, 28 Cal.2d 406, at page 417, 170 P.2d at page 677, where the Supreme Court said: ‘It is our view that under such circumstances, and upon a proper showing otherwise, plaintiff should not be denied the payment from defendant of funds to enable her to properly prosecute an appeal from the judgment determining the fact and effect of the Nevada decree. [Citations.] It is now the law of this state that it is only after such an appeal has been finally determined (or the judgment of a California trial court adjudicating such issue has become final) that the validity or lack thereof of the Nevada decree and its effect—and consequently the marital status and reciprocal obligations of the parties in this state—can be conclusively settled.’ (Emphasis added.)

In the present case, the respondent court by denying jurisdiction to hear evidence as to and determine the issue of Marie's right to funds pendente lite, in effect made a final determination, not that the original marriage was void but that the Nevada decree was valid and in so doing it abused its discretion and thereby acted in excess of its jurisdiction.

Let a peremptory writ of mandate issue requiring the respondent court to vacate its order made an entered on the first day of April, 1959, and hereinabove quoted, and directing it to hear and determine upon its merits the order to show cause in re alimony, attorney's fees and costs pendente lite.

FOOTNOTES

1.  The following facts which were not before the respondent court are alleged in the petition here and are not denied by Paul's answer to the petition or the return of the respondent court: Marie did not have any knowledge of the pendency of the Nevada action. Paul knew her address but did not cause a copy of the complaint and summons in the Nevada action to be served upon her nor did he cause her to be personally served in California. The first knowledge Marie had of the Nevada proceeding was in August 19, 1956, when she received through the mail a certified copy of the Nevada decree.

2.  It may be further noted that under the law of this state (see Civil Code, § 139) permanent alimony may only be granted to an innocent party (Brooks v. Brooks, 53 Cal.App.2d 93, 127 P.2d 298 and cases there cited) and that the Nevada decree, if valid, conclusively determined that petitioner was the wrongdoer. Baldwin v. Baldwin, 28 Cal.2d 406, at page 410, 170 P.2d 670.

NOURSE, Justice pro tem.

FOURT, Acting P. J., and LILLIE, J., concur.