Dribin v. Superior Court In and For Los Angeles County

• Decision Date: 29 May 1951
• Citation: 24 A.L.R.2d 864,231 P.2d 809,37 Cal.2d 345
• Court: California Supreme Court
• Parties: , 24 A.L.R.2d 864 . L. A. 21731. Supreme Court of California, in Bank

Page 809

231 P.2d 809

37 Cal.2d 345, 24 A.L.R.2d 864

DRIBIN v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

L. A. 21731.

Supreme Court of California, in Bank.

May 29, 1951.

Sam Houston Allen, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

SCHAUER, Justice.

Petitioner seeks by mandamus ¹ to require the superior court in the County of Los Angeles to restore to the trial calendar, and proceed with the trial of, a divorce suit brought by him on the ground of incurable insanity (Civ.Code, §§ 92, 108 ²). It appears from the allegations of the mandamus petition that petitioner is unable to satisfy certain of the statutory prerequisites to the granting of a divorce on that ground, and that if such prerequisites are constitutionally valid the relief he seeks should be denied.

Petitioner alleges in his mandamus petition that in October, 1949, he filed (presumably in the superior court in Los Angeles) a divorce complaint 'against Esther Dribin, by and through her General Guardian.' In the divorce complaint he alleged, among other things, his residence in the county and state for more than a year preceding filing of the complaint; that he and defendant intermarried in December, 1941, in Illinois, and thereafter separated; that in May, 1944, defendant, 'upon petition of her mother, was adjudged insane in the Probate Court of the County of Hennepin, State of Minnesota, and was by that * * * court * * * committed to the State Hospital for the insane in the State of Minnesota in accordance with the laws of that state'; that defendant had then been, and continued to the date of trial of the divorce action to be, incurably insane; that one Ruth Tanick is defendant's general guardian, appointed as such by the Minnesota court in November, 1945.

Petitioner further alleges that 'pursuant to an order of the Respondent Court herein' a copy of the summons and complaint in the divorce action was served upon the general guardian, by publication; defendant defaulted; and the trial was set for August 4, 1950. At the trial petitioner offered in evidence 'a copy of a deposition of the Superintendent of Rochester State Hospital in * * * Minnesota * * * in which deposition the said Superintendent set forth that the defendant * * * was an inmate of said Rochester State Hospital and had been continuously since on or about January 5, 1945, and that in his opinion the defendant was incurably insane.' At this point the trial court ruled that the divorce complaint 'was insufficient in that it did not comply with the provisions' of the second paragraph of section 108 of the Civil Code, which require an allegation 'either that there is reasonable ability to support the insane spouse for the remainder of the life expectancy or that such insane spouse has property sufficient to provide support for' that period; the court then ordered the cause off calendar 'until such time as the plaintiff should amend the said complaint to include the said allegations.' Petitioner then alleges that he has 'no property or estate whatsoever,' is therefore unable to 'comply with the conditions imposed upon him' by the trial court, and seeks mandamus on the ground that the statutory provision requiring proof of ability to support the insane spouse (1) is unconstitutional in that it deprives him of due process and equal protection of the law, and (2) has no applicability to a non-resident insane spouse.

The County Counsel, in his brief filed in opposition to the petition for mandamus, urges that the divorce complaint was clearly insufficient in that it alleges confinement of the defendant spouse outside the State of California, whereas section 108 of the Civil Code in its first paragraph requires proof of confinement in this State for the statutory three-year period.

1. Proof of Ability to Support.

We are of the view that petitioner is correct in his contention that the statutory requirement of allegation and proof of ability or ownership of property sufficient to support the insane spouse for the remainder of the life expectancy creates an arbitrary and unreasonable class discrimination between those of different financial resources, and it was so held in Morganti v. Morganti (1950), 99 Cal.App.2d 512, 222 P.2d 78. In that case, Mr. Justice Peek, authoring the opinion of the District Court of Appeal, quoted the statement in TAKAHASHI V. FISH AND GAME COMM. (1947), 30 CAL.2D 709, 727,³ 185 P.2d 805, that 'the classification shall not be arbitrary, but must be based upon some difference in the classes having a substantial relation to a legitimate object to be accomplished,' and enunciated the following conclusions: 'It would seem apparent that the purposes of section 108 are (1) to provide the manner of proof where the ground for divorce is the incurable insanity of the defendant spouse, and (2) to provide a means of securing continuing financial support for the insane spouse. Applying the 'substantial relation' test enunciated in Takahashi v. Fish and Game Comm., supra, to the present case, it cannot be said that the financial status of the parties bears any more relation to the first object of section 108 stated above than does the race of the applicant bear to the issuance of a marriage license. (See Perez v. Sharp (1948), 32 Cal.2d 711, 198 P.2d 17.)

'Furthermore proof of financial liability as set forth in the second sentence of the second paragraph of said section becomes wholly superfluous to the attainment of the second object thereof, since by reason of the specific terms of the preceding sentence no decree granted on the ground of incurable insanity can relieve a spouse of 'any obligation imposed by law as a result of the marriage for the support' of the insane spouse. (See Civ.Code, § 155, and Welf. & Inst.Code, §§ 5077, 5105.6.) It follows that the requirement contained in section 108 of the Civil Code, that it must be alleged in the complaint and proved at the trial that there is either reasonable ability to support the insane spouse or that such insane spouse has property sufficient to provide support, constitutes a classification based on financial ability which is without reasonable relation to either of the legislative objects of (1) providing a manner of proof w(h)ere the ground for divorce is incurable insanity, or (2) securing financial support for the insane spouse, and that such classification is, in effect, an arbitrary denial of equal protection and is, therefore, invalid.'

It has been suggested that such a holding is inconsistent with the views which we expressed in Escobedo v. State of California (1950), 35 Cal.2d 870, 879, 222 P.2d 1. In that case we upheld a statute requiring the Motor Vehicle Department to suspend the petitioner's license to operate an automobile upon finding that after being involved in an accident causing substantial damage to person or property he had failed to meet the financial security requirements imposed by the Vehicle Code. It seems obvious that the Escobedo case is not authority for the proposition that every classification based on financial ability is necessarily reasonable and constitutionally valid. Upholding the requirement that the operator of an automobile, after he has been involved in a highway accident, furnish reasonable security for the damages his negligence appears to have caused or suffer suspension of his operator's license, is not the equivalent of holding (in effect) that the right to divorce (or to marry) may be limited to those who can purchase an adequate life-annuity for a spouse.

Furthermore, the Escobedo decision is based in part on the existence of 'a compelling public interest' in promoting safety on the highways. Negligent use of the highways is discouraged by penalizing such use and by imposing responsibility for damage thereby inflicted on other persons or to their property. (See Escobedo v. State of California (1950), supra, at page 876 of 35 Cal.2d at page 1 of 222 P.2d; Watson v. Motor Vehicle Dept. 1931), 212 Cal. 279, 287, 298 P. 481.) But denial of divorce for failure to possess wealth sufficient to support an insane spouse for life cannot be upheld as a penalty nor does it tend to protect the public against negligent use of a dangerous instrumentality. No compelling necessity has been found by the Legislature or suggested to us for generally denying divorce to the poor and making it available to the wealthy. Here the state has guarded against financial dependency of the insane spouse by providing that the divorce of an insane spouse does not relieve the other spouse of 'any obligation imposed by law as a result of the marriage for the support' of the insane spouse. ⁴ As declared in the Morganti case, in view of such provision, the additional requirement of proof of possession of financial ability appears arbitrary, and quite obviously would sometimes, for no compelling reason, deny divorce to the poor while granting it to the more wealthy. Since full liability for support perdures, after divorce as during the marriage, and since the court can exact security as in any case according to the means of the spouse securing the decree, the only basis left for the classification is wealth as against poverty. In this application it is not a valid classification.

It is further held in the Morganti case that the objects of section 108 'are in no way thwarted or frustrated by the deletion of the invalid requirement,' that such requirement is therefore severable, and that the balance of the section may be given effect and a divorce granted on the ground of incurable insanity without proof of financial responsibility. We are satisfied that the quoted discussion and holding of the District Court of Appeal adequately and correctly dispose of the problem there considered. Insofar as the following cases appear to be inconsistent with Morganti v. Morganti, such cases are hereby...