Bernheimer v. Bernheimer

• Decision Date: 20 April 1951
• Citation: 103 Cal.App.2d 643,230 P.2d 17
• Court: California Court of Appeals Court of Appeals
• Parties: BERNHEIMER v. BERNHEIMER et al. Civ. 17825.

Page 17

230 P.2d 17

103 Cal.App.2d 643

BERNHEIMER v. BERNHEIMER et al.

Civ. 17825.

District Court of Appeal, Second District, Division 3, California.

April 20, 1951.

Hearing Denied June 18, 1951.

Pacht, Warne, Ross & Bernhard and Bernard Reich, all of Beverly Hills, for appellant.

Gold & Needleman, J. George Gold and James J. Needleman, all of Beverly Hills, for respondent.

BARTLETT, Justice pro tem.

This is an appeal from orders which denied appellant's application for support, counsel fees and costs pendente lite and granted appellant's motion for the support of the minor child and fixed the sum for that support at $300 per month.

Among other reasons advanced by appellant as to why these orders should be reversed, appellant contends that the court erred in holding that a decree rendered August 21, 1943, by the court of Jackson County, Missouri, divorcing respondent from a former wife, Sally Bernheimer, was invalid. We do not deem it necessary to determine that question for the reason that we are of the opinion that on account of the facts to which we will hereafter refer and the law applicable to those facts, the respondent was estopped from making a collateral attack on his own divorce in Missouri and in claiming the invalidity of his marriage to appellant.

The transcript of oral testimony taken at the hearing and the affidavits of the parties showed that for some time prior to December, 1941, respondent had been married to Sally Bernheimer; that on December 19, 1941, he filed an action for divorce against Sally Bernheimer in Juarez, Mexico; that on December 30, 1941, Sally Bernheimer filed suit against respondent in Los Angeles, California, to enjoin him from obtaining this Mexican divorce, which relief was granted. Notwithstanding this injunction respondent proceeded with his action in Mexico and was granted a decree of divorce on January 30, 1942. The respondent testified that at the time he went to Juarez, Mexico, he was accompanied by the attorney who now represents him and who has represented him in all the proceedings in this case and that he went to Juarez on this attorney's advice. Respondent, accompanied by this same lawyer and appellant, thereafter went to Las Vegas, Nevada, and married appellant on the 4th of February, 1942. On February 9, 1942, the son of appellant and respondent was born.

On July 28, 1943, respondent entered into a property settlement agreement with Sally Bernheimer and thereafter gave her $1,500 to pay her travelling expenses to go to Kansas City, Missouri, and file suit for divorce which she did on August 5, 1943. Respondent testified that he, accompanied by his present attorney, also went to Kansas City and entered an appearance in the action upon the advice of this attorney. A decree of divorce was granted to Sally Bernheimer on August 13, 1943. On September 4, 1943, appellant and respondent were again married in a church in Reno, Nevada. Respondent's attorney again accompanied them on this trip. The appellant had knowledge of all of the foregoing facts. Respondent further testified that until a few months before the hearing in this case appellant never had an attorney other than his lawyer '* * * but he certainly gave her very good advice.'

According to the affidavit of respondent, on April 11, 1944, he filed suit in Missouri on behalf of the son of appellant and respondent against the First National Bank of Kansas City for declaratory relief concerning the meaning and intent of a will which had been executed by respondent's mother. He states further in this affidavit that the validity of his Missouri marriage was collaterally attacked in this action and that a decree of the lower court in the action was reversed by the Supreme Court of Missouri but that a rehearing en banc had been granted and that the action was still pending at the time of the hearing in this case. So far as the question which we are considering now is concerned, this matter is of importance by reason of respondent's statement in his affidavit that he has taken the position throughout the proceedings before the Missouri courts that the divorce decree rendered in Missouri on August 13, 1943, was valid. It further appears that up to July 28, 1949, the parties were living together as man and wife.

At the hearing in this case, the appellant testified to the marriage which took place at Reno, Nevada, on September 4, 1943. The respondent, in his answer, stated that such a ceremony took place. That was sufficient proof of marriage to entitle appellant to receive attorney's fees, suit money and costs pending the trial and the burden of proof was then upon respondent to show the invalidity of this marriage. Bancroft v. Bancroft, 9 Cal.App.2d 464, 50 P.2d 465; Thomas v. Thomas, 66 Cal.App.2d 818, 153 P.2d 389. This burden he attempted to meet by attempting to attack collaterally his own divorce from Sally Bernheimer in Missouri in which proceeding he had participated and entered an appearance. The principle which we are applying here was stated clearly in Rediker v. Rediker, 35 Cal.2d 796, at page 805, 221 P.2d 1, at page 6, in this language: 'Even if the Cuban decree were invalid, defendant cannot contest its validity. The validity of a divorce decree cannot be contested by a party who has procured the decree or a party who has remarried in reliance thereon, or by one who has aided another to procure the decree so that the latter will be free to remarry.' Respondent seeks to avoid the application of the law as stated in the preceding quotation in the following statement which we quote from his brief: 'Factually the Rediker case is a classical example of the situations where (1) the husband attempts to blow hot and cold at the same time, (2) where the husband seeks the aid of the court of equity to enable him to reverse a former position to the injury of another, and (3) where a husband has first invoked the exercise of a jurisdiction within the general powers of a court and then later seeks to reverse the effect of its jurisdiction.' Factually the case before us is a perfect example of the situations just stated. Here, the husband aided his former wife, Sally, to procure the very decree he now seeks to declare invalid so that he could marry his present wife. On the strength of that decree he did marry her. When the validity of the decree was attacked collaterally in Missouri he tells us in his affidavit that he took the position throughout the proceedings there that the Missouri decree was valid and he further tells us that those proceedings are still pending so we have a situation where at the same time he contended in California that the Missouri decree was invalid he was maintaining its validity before the courts of the State of Missouri.

Respondent makes the further contention that no court can concede the invalidity of a prior divorce decree and then apply this doctrine of estoppel. The answer to that is that in the event the court made a finding that the Missouri decree was valid there would be no occasion to apply this doctrine of estoppel and that contention is exactly contrary to the language which we have quoted in Rediker v. Rediker, supra, 35 Cal.2d 796, 805, 221 P.2d 1. What we are saying here is that a man in the position of respondent, as shown by the facts of this case, cannot raise any question as to the validity of such a decree and it does not matter whether or not the decree in question was invalid. That is the direct holding in Bruguiere v. Bruguiere, 172 Cal. 199, 155 P. 988; Harlan v. Harlan, 70 Cal.App.2d 657, 161 P.2d 490; Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290. Such being the case the only evidence properly before the court was the admittedly true evidence of the ceremony performed in Reno, Nevada, September 4, 1943, which gave the court jurisdiction to grant the relief asked by the appellant. It is true that the appellant knew that her husband had been divorced in Missouri from his first wife. In fact, relying upon that decree, she married him and no logical reason is suggested as to how the mere fact of...