Green v. Green

• Decision Date: 11 April 1963
• Citation: 215 Cal.App.2d 37,30 Cal.Rptr. 23
• Court: California Court of Appeals Court of Appeals
• Parties: Betty Estelle GREEN, Plaintiff and Appellant, v. Rulon Cutler GREEN, Defendant and Respondent. Civ. 26631.

Page 23

30 Cal.Rptr. 23

215 Cal.App.2d 37

Betty Estelle GREEN, Plaintiff and Appellant, v. Rulon Cutler GREEN, Defendant and Respondent.

Civ. 26631.

District Court of Appeal, Second District, Division 1, California.

April 11, 1963.

Gladys Towles Root and Eugene V. McPherson, Los Angeles, for appellant.

Ivan E. Lawrence, Reseda, for respondent.

LILLIE, Justice.

Appeal is from judgment entered on an order dismissing an action for divorce under section 437c, Code of Civil Procedure.

Affidavits filed on the motion for summary judgment disclose the following. The parties were married in 1945, and separated in 1953; on August 4, 1953, appellant wife sued for divorce (No. D455586), and on August 13, 1953, obtained a pendente lite order requiring respondent to pay child support and alimony. On March 29, 1954, the parties entered into a property settlement agreement. In April they reconciled; the reconciliation lasted almost four years, during which time respondent supported appellant. They separated in December, 1957, when respondent moved to Nevada where he engaged in his occupation as a builder; in February 1958 he sued for divorce (No. 88744) in Las Vegas. In Los Angeles appellant was served with the Nevada action; on advice of her local counsel to contest it, she hired a Nevada attorney, who filed pleadings on her behalf. On July 29, 1958, she went to Las Vegas and personally and through her counsel participated in the trial; she testified but offered no objection to, or evidence to offset, respondent's allegation and testimony of domicile in Nevada. On her own testimony and as alleged in her defense and counterclaim (Findings of Fact and Conclusions of Law [Nevada Court, July 31, 1958], para. 4), and on respondent's testimony that he had established residence in Nevada and the court's finding thereon (para. 1), the Nevada court on July 31, 1958, granted appellant a divorce. The decree, entered August 1, 1958, awarded her community property, attorneys' fees, child custody and $100 per month child support. Respondent has since complied therewith; until March 1961, appellant also has relied thereon accepting the award of community property and child support thereunder without comment.

Almost three years later, and in March, 1961, she caused a writ of execution in the sum of $8,383.68 (arrearage claimed under pendente lite order of August 13, 1953) to be levied against respondent's property. On July 14, 1961, the court on respondent's motion dismissed her divorce action (No. D455586); and on his motion to quash the writ the court on September 22, 1961, found appellant's right to support under the pendente lite order of August 13, 1953, terminated August 1, 1958 (the date of entry of the Nevada decree) and that under the writ of execution only $2,000 was due. (The order is the subject of appeal, Cal.App., 30 Cal.Rptr. 30; the order is affirmed.)

Three days later, and more than three years after the entry of her Nevada decree, appellant, on September 25, 1961, filed the within new complaint for divorce in which she alleged the parties separated in 1953, and fraud in the execution of the property settlement agreement on March 29, 1954; she mentioned neither the four-year reconciliation beginning in April, 1954, nor her Nevada divorce. Thereafter, respondent moved the lower court for summary judgment. Both he and his counsel claimed that her complaint was filed in bad faith with malicious intent to coerce payment of the balance of the $8,383.68.

Appellant opposed the motion with several affidavits; only her own sets up facts of her appearance in the Nevada action. She declared: that in January 1955 she learned respondent had secreted assets when he executed the property settlement agreement of March 1954; that during the next four years he failed to support her, belittled her and threatened to leave her destitute; that in 1957 (while still living with respondent), 'by reason of defendant's continuous harassment, dire financial and living distress' she became 'so mentally upset, disturbed and emotionally troubled' that she 'was unable to comprehend, to act or think intelligently or know what to do'; that at this time she consulted two attorneys; that thereafter, in December 1957, respondent left, telling her he was leaving California 'for good' and going to live in Nevada; that in February of 1958, in Los Angeles, she received the Nevada divorce papers and immediately went to a lawyer who declined to represent her but advised her to ignore the Nevada action and secure a lawyer to reopen her Los Angeles case; that she then retained local counsel, Edward Rosslyn, to represent her and instructed him to reopen the pending Los Angeles case; that he prepared papers which she signed believing they were for the Los Angeles proceedings; that later Rosslyn advised her it was essential to appear in the Nevada action, which she did not want to do; that Rosslyn informed her he had hired a Nevada attorney for her; that this was the first knowledge she had that an appearance had been made for her in the Nevada action; that the retaining of Nevada counsel and the filing of papers in the Nevada proceedings were done without her knowledge or consent; that 'upon the urging of attorney Rosslyn' she personally appeared in the Nevada court and was awarded a divorce.

Appellant contends the trial court erred in granting the motion for summary judgment in that her affidavits raised a triable issue of fact--whether she had been induced by fraud or duress to make her appearance in the Nevada action. While, on its face, appellant's complaint does not challenge the validity of the Nevada decree, it must be conceded that if the decree be given full faith and credit, appellant has not since August 1, 1958, been married to respondent and the complaint was properly dismissed. Appellant has sought to pattern her affidavit to fit the exception stated in Gromeeko v. Gromeeko, 110 Cal.App.2d 117, 242 P.2d 41, and Estate of Raynor, 165 Cal.App.2d 715, 332 P.2d 416, but assuming all facts alleged therein to be true, it raises no triable issue of fact, and the general rule of Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, and the California authorities following these cases controls.

The Supreme Court in Sherrer v. Sherrer (1947), 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, ruled 'that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.' (pps. 351, 352, 68 S.Ct. p. 1091, 92 L.Ed. 1429.) In Sherrer, supra, defendant answered his wife's Florida divorce action and testified at the trial, but his counsel did not cross examine her or offer rebuttal evidence to offset her testimony of Florida residence; she was granted a divorce. Later, in a proceeding in Massachusetts, the domicile of the parties, defendant challenged the Florida decree; the Massachusetts court found it to be void. The United States Supreme Court, reversing the ruling, found the determination of the jurisdictional issue of the wife's domicile to be res judicata and held that the Florida decree was entitled to full faith and credit in Massachusetts. In the companion case of Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, is a factual situation similar to the one at bar. The husband, domiciled in Massachusetts, filed for divorce in Nevada. The wife went to Nevada to contest the action and answered the same, but admitted the allegation of defendant's residence; both parties were present at the trial and the wife was granted a divorce. Later in Mas achusetts she brought contempt proceedings against him for failure to comply with a prior support order of the Massachusetts court; the Supreme Court reversed the state court ruling which refused to give the Nevada decree full faith and credit. (334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451.)

California has followed the rule of Sherrer v. Sherrer, supra, and Coe v. Coe, supra; and of these cases our Supreme Court has said: 'The test therefore is not whether the issue of jurisdiction was actively litigated in the court rendering the divorce decree. It is sufficient if the defendant has participated in the proceedings and had full opportunity to litigate the issue. If so, the decree is binding even through a relitigation of the question of jurisdictional residence requirements in another state might result in a finding that the domiciliary claim was fraudulently asserted for the purpose of obtaining a decree which as a matter of policy could not be procured in the state of actual domicile. Therefore where, as here, the finding of the requisite jurisdictional facts was made in divorce proceedings in another state in which the defendant appeared and participated, and the decree has become final, it must be given full faith and credit in the courts of this state.' (Heuer v. Heuer, 33 Cal.2d 268, 271, 201 P.2d 385, 387; also cited in Estate of Raynor, 165 Cal.App.2d 715, 332 P.2d 416.)

However, '(o)ne recognized exception to the rule enunciated in the Sherrer and Coe cases is where the appearance of the defendant is induced by fraud or duress. This rule is recognized in California. See Gromeeko v. Gromeeko, 110 Cal.App.2d 117, 242 P.2d 41; Hayden v. Hayden, [sic], supra, [120 Cal.App.2d 722, 262 P.2d 73].' (Estate of Raynor, 165 Cal.App.2d 715, 721-722, 332 P.2d 416, 421.) Appellant relies particularly on Gromeeko v. Gromeeko, 110 Cal.App.2d 117, 242 P.2d 41, in which the wife attacked the husband's Nevada decree on the ground her appearance in that proceeding was...