CARDINALE v. CARDINALE (1936)

This is an appeal from an order of the superior court of San Diego county vacating a judgment for separate maintenance.

In 1922 plaintiff, wife of defendant, sued him in the San Diego superior court for separate maintenance. Both were then residents of Tijuana, Mexico. Plaintiff secured a judgment requiring defendant to pay her $40 monthly for the support of the minor child of the parties. Defendant made payments for a number of years until about May, 1931. In June, 1932, without notice to defendant, plaintiff procured a judgment of the lower court in the sum of $998, alleged to be delinquent in said payments. Thereafter, in October, 1932, defendant moved to set aside the said judgment for arrears, as well as to terminate the original judgment for separate maintenance. Defendant filed affidavits to show that the minor child had died; that he had made payments in excess of the amount actually due plaintiff; and that he had procured a decree of divorce from plaintiff in Nevada on December 9, 1931. Plaintiff filed counter affidavits. The trial court made findings in favor of defendant and vacated the judgment for alleged delinquent payments as well as the judgment for separate maintenance. Plaintiff appealed.

Plaintiff's argument is that the Nevada divorce, procured by constructive service, was based upon a simulated domicile and false affidavit for publication, and hence was fraudulent, void, and subject to collateral attack. Plaintiff points to the fact that defendant came to Nevada from Tijuana for a short period, and left soon after the granting of the decree. Plaintiff also contends that since defendant made payments to her about this time, he could not have been ignorant of her address. Defendant's affidavits, on the other hand, show that he was sent to Nevada by his employer to investigate possibilities of a business there, and that he employed one Selvaggi to inquire at plaintiff's last address and was unable to locate her.

It is, of course, well settled that a divorce decree based upon a fraudulent domicile is void, and not entitled to full faith and credit. It is equally established that the question of bona fide domicile is one of fact, and that where a court of one state gives a decree, based upon a finding of domicile, there is a presumption of validity of the decree which places the burden on the party attacking it. See Delanoy v. Delanoy, 216 Cal. 27, 13 P.(2d) 719, 86 A.L.R. 1321. In the instant case, presented upon conflicting affidavits, the trial court held that the burden had not been met. Its findings in this respect are binding on appeal.

The judgment is affirmed.

LANGDON, Justice.

We concur: WASTE, C. J.; THOMISON, J.; SEAWELL, J.