Aldabe v. Aldabe

• Decision Date: 09 November 1962
• Citation: 26 Cal.Rptr. 208,209 Cal.App.2d 453
• Parties: Alvera M. ALDABE, Plaintiff and Appellant, v. Charles D. ALDABE, Defendant and Respondent. Civ. 10397, 10507.
• Court: California Court of Appeals Court of Appeals

Page 208

26 Cal.Rptr. 208

209 Cal.App.2d 453

Alvera M. ALDABE, Plaintiff and Appellant, v. Charles D. ALDABE, Defendant and Respondent.

Civ. 10397, 10507.

District Court of Appeal, Third District, California.

Nov. 9, 1962.

Rehearing Denied Dec. 6, 1962.

Hearing Denied Jan. 3, 1963.

Charles W. Luther, Sacramento, for appellant.

Wilke, Fleury & Sapunor, Sacramento, for respondent.

PIERCE, Justice.

Two appeals by the wife in this divorce action, one from an order terminating a temporary alimony and child support order and the other from a judgment dismissing the divorce action, have been consolidated, by stipulation. Both involve the same evidence and questions of law.

On November 9, 1959 plaintiff-appellant (hereinafter 'Alvera') filed her complaint in divorce in Sierra County, California, through attorney Gordon I. Smith, alleging that she was a resident of said county and state, that her husband defendant-respondent (hereinafter 'Charles') had been guilty of extreme cruelty, that the community property included a ranch located partly in Sierra County and partly in Washoe County, Nevada, livestock thereon, equipment, corporate shares and bank deposits. (Aggregate value of the community property is not set forth in the complaint. In a subsequent affidavit filed Alvera fixes its value at $250,000.)

After preliminary proceedings orders were made for temporary alimony and child support in said action. In February, 1960 Charles, who had not theretofore appeared, filed a motion to quash summons on the grounds: (1) that Alvera was not a resident of California when the action was filed, and, (2) that there was another action pending in the State of Nevada between the parties based on the same cause of action. After hearing, the court, on August 17, 1960, denied the motion.

On September 19, 1960, Charles filed his answer and notice of motion to terminate temporary alimony and support based upon the fact that intermediate the order denying the motion to quash service of summons and the answer and new motion, the Nevada action had been heard, resulting in a valid Nevada decree dissolving the marriage.

The motion was heard on November 28 and 29, 1960, and resulted in the order from which this appeal was taken, which order found that the Nevada decree was entitled to full faith and credit and consequently the court terminated the previous order for temporary alimony and child support. Thereafter when the action came on for trial a stipulation was entered into that the issues be submitted on the same evidence produced at the previous hearing. The judgment appealed from followed.

Ordinarily it would be our obligation to consider the evidence which was before the trial court subservient to the rule which resolves all conflicts in respondent's favor. Here, however, we are bound by a different rule; for we have concluded that substantial error was committed by the trial court in the sustaining of respondent's objections to certain evidence sought to be adduced by appellant and in the rejection of offers of proof (the nature of which evidence and the law applicable thereto can be more facilely stated in the discussion to follow). And in determining whether such error is prejudicial, resulting in a miscarriage of justice to require reversal (Calif.Const. Art. VI, section 4 1/2), it is our duty to examine the entire record; in effect, to some extent weigh the evidence to determine whether in our opinion 'a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254; 3 Witkin, Calif.Proc., Appeal, sec. 100, p. 2269; Vallejo etc. R. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 P. 238.)

Charles and Alvera were married October 5, 1941. In August 1942 they bought the Flynn Ranch. This ranch is partly in Washoe County, Nevada, and partly in Sierra County, California. But the residence and all of the outbuildings are located in California. During their married life together this residence has been their home and their only home at all times after its acquisition. It is where Charles still resided at the time of the hearing. There is no conflict in the evidence in this regard. There is a conflict on the expressed desires of the spouses as to where they wished their legal residence to be.

Automobile registration had been in Nevada. In years past the parties had voted in Nevada, although in 1956 Charles' voting registration had been canceled. The parties kept a post office box in Reno as their mailing address. They shopped in Reno (much closer than any California shopping center) and banked there.

On the other hand, the Aldabes both knew that their house was in California. (They had had a survey made which had established that fact.) They paid Sierra County taxes on the portion of the ranch which is in California and on the improvements; also on household furniture and equipment in California. The joint federal income tax returns filed in 1957 showed the Aldabes to be residents of California. The 1958 returns (with no change of abode) declared them to be Nevada residents. Fire insurance policies showed them as California residents.

The Aldabes have two children, Aileen and Bertrand, ages at hearing 16 and 12 respectively. As a matter of convenience these children attended Washoe County, Nevada, schools with Sierra County, California (on the theory the parents were Sierra County residents) paying for their transportation.

During the middle fifties the parties had marital difficulties. One Robert Adams, a Reno attorney of the firm of Adams, Reed and Bowen, had long been attorney for Aldabe's family, and Alvera and Charles had both consulted him regarding their domestic problems. Alvera testified that she asked Adams to represent her in a proposed action but he told her he would not represent either because he had been the attorney for both of them. Adams, called as a witness, testified that both spouses together had consulted him regarding their problems and that he had also talked with Alvera separately; that he had told them together that he would not want to 'represent either of them.' Alvera testified that Adams, after she had stated her case to him, advised here that 'definitely it should be in California.' Adams denied this.

Alvera then sought other representation and ultimately on July 9, 1959, employed attorney Jack Streeter of Reno. No recommendation by either Charles or Adams entered into her selection. Alvera stated that she informed Streeter that her home was in California and his notes of the conference show 'she lives on a ranch 17 miles north of Reno on Highway 395. Ranch was partly in California and partly in Nevada but the house and buildings were located in California.' (Emphasis supplied.) Alvera also testified that Streeter told her he could bring the action in Nevada as well as he could handle it in California. When, several days later, Alvera returned to the attorney's office to verify the complaint, she testified she called attention to the allegation alleging Nevada residence, which was not true, but was told 'he'd have to put this to read like this in order to go through the courts of Nevada,' and she thought 'well, he knows the law, if it's supposed to read that way, it's supposed to read that way.' The daughter Aileen who was present at the time corroborated this conversation. Streeter denied it.

The complaint was filed on July 13, 1959, Charles filed an answer and counterclaim. Adams appeared as his attorney. In the original answer he alleged that the ranch was partly community and partly his separate property. In the counterclaim he alleged that both he and Alvera were residents of Washoe County, Nevada.

Alvera and her daughter, Aileen, visited Streeter in his office on October 19, 1959. A dispute arose between client and attorney. The record is not clear as to the cause of the dispute. It is clear, however, that as a result of the conversation there was a mutual agreement Streeter was no longer to represent Alvera. Alvera said she discharged him; Streeter said he withdrew.

Adams denied that Streeter advised him at that time of the termination of the attorney-client relationship, but Streeter's notes of the incident read: 'Office conference with Mrs. Aldabe on what time was spent on the case and advised her to obtain other counsel. Telephone conference with Mr. Adams and Bowen on substitution.' (Emphasis supplied.) A court hearing had been scheduled in the action that day. Charles and his attorney were ready to proceed. The hearing was canceled. Appellant's theory is that Adams was ready to proceed on October 19th, that Charles was available to testify and that since the termination of Streeter's representation of Alvera was assigned as the reason for the continuance, both Adams and Charles knew this. Substantial evidence supports this contention. Both Alvera and Aileen, the daughter, testified to a conversation with Charles in which he related that Adams had told him of Streeter's discharge. Charles admitted he knew of trouble between Alvera and Streeter as the cause of the continuance but thought the information came from Alvera. A trier of facts could well have concluded that Adams knew, as of that date, that Streeter, although the attorney of record, was no longer actively representing Alvera. And subsequent activities of both attorneys shortly thereafter lend further support to the theory.

Streeter testified he dictated pleadings to present a motion for his withdrawal as Alvera's attorney of record. The motion was never presented. Streeter asserted this was because Alvera had left the State and he could not serve her, but since the dictated pleadings were apparently never transcribed, it seems doubtful that any attempt at service was made. Alvera during this period was temporarily living in Reno (see infra). Adams, about this time, found no difficulty in having Alvera personally...