Blache v. Blache

• Decision Date: 06 July 1951
• Citation: 233 P.2d 547,37 Cal.2d 531
• Parties: BLACHE v. BLACHE et al. S. F. 17997.
• Court: California Supreme Court

Page 547

233 P.2d 547

37 Cal.2d 531

BLACHE v. BLACHE et al.

S. F. 17997.

Supreme Court of California, in Bank.

July 6, 1951.

Rehearing Denied Aug. 2, 1951.

David Livingston and Louis F. DiResta, San Francisco for plaintiff and appellant.

Ernest J. Torregano, San Francisco, for defendant and appellant Maurice J. Blache.

Edward J. Lynch, San Francisco, for defendant and appellant Jeanne C. Pedebidou.

SCHAUER, Justice.

Plaintiff Anna Blache brought this action for separate maintenance and determination of property rights against her husband Maurice and against Jeanne Blache, with whom Maurice had gone through a marriage ceremony and lived in the mistaken belief that he had divorced plaintiff. Each of the defendants appeals from a judgment which decrees, among other things, that Maurice pay Anna separate maintenance and that a half interest in described properties accumulated by Maurice and Jeanne is community property of Maurice and Anna. Anna appeals from the judgment insofar as it fails to grant her additional relief which she contends should have been awarded her. The trial which resulted in this judgment was the second trial of this case. Anna did not testify at such second trial; rather, over objection, she was allowed to rest her case principally upon a transcript of her testimony at the first trial. Such testimony on its face appears to be evasive and self-contradictory. Essential findings of the trial court favorable to Anna are based solely upon this transcribed testimony. For reasons hereinafter more particularly set forth, we have concluded that this procedure was prejudicially erroneous.

Anna and Maurice were married in 1912 and separated in 1914. In 1916 Maurice sued for divorce on the ground of desertion. Anna was personally served and, in letters to Maurice's counsel written both before and after the case came on for trial, she repeatedly expressed consent to the divorce and urged that it be speedily obtained. Her default was entered in July, 1916. The case came on for trial in January, 1917; evidence was taken and the trial court suggested additional corroboration; Maurice's attorney stated that he would obtain a corroborating deposition; the cause was continued to October 24, 1917; on that date there was no appearance and the cause went off calendar. The proposed deposition was taken (in the state of Michigan) and was filed on March 11, 1918, but it appears that the cause was never restored to the calendar, that the additional evidence did not come to the trial court's attention, and that no judgment was rendered. Maurice believed that the divorce had been granted. In 1939, after the present action was instituted, Maurice's divorce action was dismissed of the court's own motion.

In 1918 Maurice went through a marriage ceremony with Jeanne; he did not tell her of his prior marriage or his belief that he had been divorced. Maurice had no property at this time; Jeanne contributed about $10,000 of her own property to their mutual endeavors; and over a period of twenty years they accumulated property worth more than $150,000.

Between 1915 and 1932, neither Maurice nor Anna knew anything of the other's whereabouts or activities. In 1932 Anna learned that Maurice was in San Francisco. She wrote to him that she was attempting to obtain a passport for a proposed trip abroad and that for this reason she needed a certified copy of the divorce decree; she asked him to send her such copy or tell her where one could be obtained. When Maurice attempted to obtain a copy of the decree he learned and advised Anna that they were not divorced. Thereafter, until 1938, Maurice and Anna corresponded; Anna repeatedly wrote that she did not desire to obtain money from him or to cause him trouble; she suggested that he dissolve their marriage and validly remarry Jeanne. In 1938 Anna saw Maurice for the first time since their separation in 1914. Later in 1938 she demanded money and threatened legal action. In May, 1939, Maurice for the first time told Jeanne of his prior marriage to Anna. In June, 1939, Anna instituted the present action. As grounds for separate maintenance she alleged desertion, adultery and wilful neglect. Among the defenses raised by Jeanne and Maurice were the following: laches; estoppel; an agreement between Maurice and Anna, made when they separated, that they would live apart, that each would support himself, and that any property which either might accumulate would be separate property of that person; the provisions of section 124 of the Civil Code that 'A divorce must be denied: One. When the cause is adultery and the action is not commenced within two years after the commission of the act of adultery, or after its discovery by the injured party * * *. Three. In all other cases when there is an unreasonable lapse of time before the commencement of the action.' Maurice also cross-complained for divorce and for annulment.

On the first trial of this action the trial court made no finding which would have supported an award of separate maintenance, and no award of such maintenance; it awarded Anna $7,989.13 and ordered on payment of the judgment Anna should have no further interest in 'any community property.' The judgment was not supported by the findings and was not authorized by sections 137 and 146 of the Civil Code, which govern the disposition of separate maintenance actions. ¹ For these reasons it was reversed by the District Court of Appeal in Blache v. Blache (1945), 69 Cal.App.2d 616, 160 P.2d 136.

As previously stated, on the second trial of this action Anna, the plaintiff, did not testify. Instead, over objections of both defendants, a transcript of her testimony at the first trial was read into the record. This was done without any attempt to show that she was not available to testify. The trial court permitted this procedure because of a misinterpretation of the following statement in the opinion of the District Court of Appeal on the prior appeal (at page 631 of 69 Cal.App.2d,[37 Cal.2d 535] at page 136 of 160 P.2d): 'Whether the factual questions on a new trial should be submitted on the same record, or whether new or additional evidence should be presented, is a question to be decided by the trial court and the respective attorneys.' Plaintiff's attorney urges that this statement means that he could submit plaintiff's case upon the record of the previous trial without the consent and over the objection of the attorneys for the defendants. In this he is mistaken. Under his interpretation, the District Court of Appeal made a misstatement of law, whereas the natural and reasonable meaning of its statement, which is in accord with law, is that the factual questions could be submitted on the record of the prior trial if the attorneys for all the parties and the trial judge agreed. It is established by both statute and judicial decision that in the absence of agreement by the attorneys (or by the parties if not represented by counsel), such use of the evidence at a former trial may be permitted only if the witness' testimony in court cannot be produced. (Code Civ.Proc., § 1870, subd. 8; Kuck v. Raftery (1931), 117 Cal.App. 755, 761, 4 P.2d 552; Van Orden v. Anderson (1932), 122 Cal.App. 132, 144, 9 P.2d 572; Kuehn v. Carlos (1939), 32 Cal.App.2d 295, 297, 89 P.2d 672; Gordon v. Nichols (1948), 86 Cal.App.2d 571, 576, 195 P.2d 444; 5 Wigmore, Evidence (3d ed.), § 1415, p. 191.)

The seriousness of the trial court's error is apparent when we consider the reasons for the requirement that the witness, if available, take the stand. Not only can the credibility of the witness on the stand be tested by cross-examination; another purpose is served by the requirement of the witness' presence: the trier of fact can 'obtain the elusive and incommunicable evidence of a witness' deportment while testifying.' (5 Wigmore, op. cit., pp. 125-126.) Wigmore states that 'No one has ever doubted that the former testimony of a witness cannot be used if the witness is still available for the purpose of testifying at the present trial.' (5 Wigmore, op. cit., p. 191.)

As was aptly stated by the District Court of Appeal after the first trial of this case, 'On appeal we cannot evaluate the truth of the testimony from the manner and demeanor of the witnesses. There appear enough contradictory and inconsistent statements in the transcript of the testimony of each of the three principal parties to justify this court in sustaining a finding contrary to the testimony of any one of the parties.' (Blache v. Blache (1945), supra, 69 Cal.App.2d 616, 624-625, 160 P.2d 136.) The judge who tried the case the second time was no better qualified than was the appellate court to evaluate the truth of vague, evasive and self-contradictory testimony of a witness whom he had not observed. ²

On the question of probable prejudice from the error it is significant that the judge who tried the case on the second trial, and who did not see and hear Anna, took a favorable view of her claim, whereas the judge who...