Dietrich v. Dietrich

Decision Date25 September 1953
Citation261 P.2d 269,41 Cal.2d 497
CourtCalifornia Supreme Court
PartiesDIETRICH v. DIETRICH. L. A. 22352.

Wright, Wright, Green & Wright, Loyd Wright and Charles A. Loring, Los Angeles, for appellant.

Jennings & Belcher and Frank B. Belcher, Los Angeles, for respondent.

SCHAUER, Justice.

Plaintiff Carol Dietrich brought an action for separate maintenance against her alleged husband, Noah Dietrich. Noah answered, admitting a 'purported marriage ceremony' but claiming that there was no valid marriage because at the time of the ceremony Carol was the wife of another man; i. e., was not validly divorced from a previous husband. Noah also cross-complained, seeking an annulment, or, in the alternative, a divorce. Carol obtained an order to show cause and, after hearing, the trial court ordered, among other things, that Noah pay $10,000 on account of her attorney's fees, $2,750 monthly for her support pendente lite, and certain property taxes and insurance premiums. Noah appeals from those portions of the order. He does not attack an award of $750 monthly for the support of the three minor children of himself and Carol.

Noah contends that (1) the trial court erred to his prejudice in rejecting offered proof intended to show that his marriage to Carol was invalid because her previous divorce was invalid; (2) if it is assumed that it had jurisdiction to award temporary support, the trial court erred in fixing the amount of such award. We have concluded that these contentions are without merit.

The parties went through a California marriage ceremony on May 23, 1936, one day after the entry in Nevada of a decree which recited that Carol was granted a divorce from Harold Moore. At the hearing on the order to show cause in the present California divorce proceeding Noah made the following offer of proof to show that at the time of the California marriage ceremony Carol was not legally divorced from Moore: Carol accepted Noah's proposal of marriage in September, 1935, while she was still married to Moore. She knew that Noah was a legal resident of Texas and she planned that after she divorced Moore and married Noah she would leave California and make her home in Texas. On April 4, 1936, Carol and Moore were both legal residents of California. On that day she went to Nevada for the sole purpose of simulating a residence and obtaining a divorce. During the period between April 4, 1936, and May 22, 1936, she frequently wrote to Noah; her letters, among other things, referred to her intention to make Texas her permanent home after their marriage, described her stay in Nevada as a 'sojourn,' referred to the obtaining of a divorce as 'the purpose of my trip,' and discussed Noah's arrangements for their contemplated honeymoon voyage. During this same period Carol made several overnight visits to Los Angeles, and on one trip remained in Los Angeles for more than twenty-four hours, despite the fact that before she left California for Nevada she had written Noah that 'As I understand the Nevada requirements, I couldn't possibly return here for even a day after establishing my residence there. * * * It wouldn't do to run any risk of later having it declared invalid.' In obtaining the Nevada decree Carol used a power of attorney from Moore; Moore was never present in Nevada during the period from April 4 to May 22, 1936; and Carol paid all the expenses of the Nevada action.

Noah also offered to prove that he 'learned for the first time that there was some question regarding the legality of the Nevada divorce * * * in November, 1951' (Carol instituted this action November 13, 1951); however, there is no question that Noah knew of the above described circumstances under which Carol obtained the Nevada decree.

The only portion of the offered proof which the trial court admitted in evidence was an exemplified copy of the judgment roll of the Nevada action. This copy shows that Moore, by Nevada counsel, appeared and answered, denying Carol's allegation that she was a bona fide resident of Nevada, and that the Nevada court found that such allegation was true. The trial court in the present proceeding rejected the balance of the offered proof upon three stated grounds: (1) Noah's conduct in connection with Carol's obtaining the Nevada decree estops him from attacking it. (2) Noah cannot attack the Nevada decree because he is not a party to or interested in it. (3) Noah is precluded from attacking the decree by the full faith and credit clause (U.S.Const. art. IV, § 1).

Carol urges that the evidence was properly excluded for the reasons stated by the trial court and also urges that, regardless of the correctness of those stated grounds, once a ceremonial marriage is established then 'in any and all events under those circumstances she is entitled to alimony pendente lite.'

It may be stated as a general rule that ordinarily if a ceremonial marriage is shown, and if the ceremony is followed by the assumption of marital relations, no further proof of the fact of marriage need be made in preliminary proceedings in order to sustain an award of temporary alimony, court costs and attorney's fees, and an extended inquiry into close questions as to the validity of the marriage will not be, and need not be, allowed in such preliminary proceedings. Fundamentally, as declared in Colbert v. Colbert (1946), 28 Cal.2d 276, 279, 169 P.2d 633, 'The existence of the marriage is a jurisdictional prerequisite for the right of the court to order support, costs, and counsel fees pendente lite in an action for divorce or separate maintenance. (Citations.) And the invalidity of the marriage, as is true of any jurisdictional prerequisite, may be shown at any time.' And as pointed out in Carbone v. Superior Court (1941), 18 Cal.2d 768, 771-772, 117 P.2d 872, 136 A.L.R. 1260, 'Even though the defendant in an action for divorce denies the existence of the marriage, the court may nevertheless make the order if defendant is given an opportunity to be heard and the marriage is proved by a preponderance of the evidence. * * * Although such an order implies a finding of the existence of the relationship, the proceeding need not be so complete nor the evidence so extensive as upon the trial of the issues of the case and the order therefore does not determine those issues nor affect the final judgment. (Citations.)'

The above stated general rule does not mean, however, that the mere showing that the words of a marriage ceremony have been said, absolutely and in all events precludes a defendant on an order to show cause from being heard in challenge of the fact of marriage. Absurd results could follow if we accepted Carol's broad contention that in no event, on the hearing of an application for temporary alimony and suit money, can evidence tending to show the invalidity of an admitted ceremonial marriage be received; for example, a spouse could be required to pay temporary alimony even though he or she could show and offered to show conclusively that in the very same court the marriage now relied on had been previously annulled at the instance of the other spouse by a judgment which had become final and that such spouse had remarried. To absolutely exclude such evidence simply because of the fact that the parties had once participated in a ceremony of marriage would deny verity to the substance of the rule, as stated in the Carbone case, that 'Even though the defendant in an action for divorce denies the existence of the marriage, the court may nevertheless make the order if defendant is given an opportunity to be heard and the marriage is proved by a preponderance of the evidence.' (Italics added.) An opportunity 'to be heard' means an opportunity to contest. To give full effect to the rule for which Carol contends would mean that the opportunity of an adverse party to be heard would be satisfied and concluded if he or she were permitted to be present when the one seeking temporary alimony produced an authenticated copy of a recorded certificate of marriage of the parties. Since, as stated in the Carbone case, supra (at page 772 of 18 Cal.2d, at page 874 of 117 P.2d), the adverse party, in response to an application for temporary support in a paternity or divorce action, 'must be given an opportunity to be heard and to present his evidence * * * (although) (t)he resulting judgment is temporary in effect,' it appears that in any given situation it must depend on the facts of the case whether evidence relating to the fact of marriage, and, in particular, evidence tending to show that a ceremonial marriage in fact amounted to no more than a marriage ceremony (i. e., was a mock marriage or, for any conclusive and readily provable reason was wholly void or had already been annulled or dissolved) may be properly excluded.

In Bancroft v. Bancroft (1935), 9 Cal.App.2d 464, 468, 50 P.2d 465, the District Court of Appeal quoted with approval from Brinkley v. Brinkley (1872), 50 N.Y. 184, 193, as follows: "And the principle at the bottom is this: Where, marriage in fact being denied, the affirmative is upon the party claiming to be the wife 1 to show that an actual marital relation ever existed, there alimony will be denied until that fact is proven to the satisfaction of the court, or is admitted; for it is upon the existence of that relation alone that the right to alimony depends. Where an actual marital relation has been admitted or shown, and its existence in law is sought to be avoided by some fact set up by the husband, and it devolves upon him to show that fact, there alimony will be granted until that fact is shown; for the relation actually exists upon which the right to alimony depends, and the object of the litigation is to annul that actual relation by showing some other fact, the existence of which...

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