Gromeeko v. Gromeeko

• Decision Date: 28 March 1952
• Citation: 110 Cal.App.2d 117,242 P.2d 41
• Parties: GROMEEKO v. GROMEEKO et al. Civ. 14854.
• Court: California Court of Appeals Court of Appeals

Page 41

242 P.2d 41

110 Cal.App.2d 117

GROMEEKO v. GROMEEKO et al.

Civ. 14854.

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

March 28, 1952.

As Corrected April 1, 1952.

Rehearing Denied April 26, 1952.

Hearing Denied May 26, 1952.

Hyman & Hyman, San Francisco, for appellant.

Abraham Glicksberg, San Francisco, W. L. A. Calder, San Francisco, of counsel, for respondent.

FRED B. WOOD, Justice.

Plaintiff Helen Gromeeko has appealed from three orders made in this action for divorce: (1) an order terminating an order which required defendant Andrew S. Gromeeko to pay plaintiff for her support, counsel fees and court costs pending the action; (2) an order which denied plaintiff's motion for an order directing defendant to give and complete his deposition; and (3) an order which denied her motion for counsel fees and costs for the taking of defendant's deposition.

The appeal from the order terminating the temporary support order presents the question whether or not a certain Nevada decree of divorce between these parties deprives the trial court, in this action, of jurisdiction to award support money, counsel fees and costs, unless and until the Nevada decree shall have been annulled by a court of competent jurisdiction; and, if not, the degree of proof required, of the asserted invalidity of the Nevada decree, upon the hearing of a motion for support money, counsel fees and costs pending the action, or of a motion to terminate an order for the payment of such moneys.

April 3, 1950, plaintiff filed her complaint herein, asking for a divorce from Andrew, and for an accounting by Andrew and the other defendants as to certain properties. Among the acts of cruelty upon which she grounded her complaint for divorce, she alleged, concerning the Nevada decree: Since August 1, 1947, Andrew and defendant Elena S. Cronier had been living together representing themselves to be husband and wife; in December, 1947, Andrew falsely represented to the plaintiff that Elena was going to bear a child by him, that he loved plaintiff but intended to obtain a decree of divorce in Reno for the sole purpose of temporarily marrying Elena, thereafter to divorce Elena and remarry plaintiff; Andrew, while a resident of San Francisco, obtained a purported decree of divorce in Nevada, which decree was fraudulently obtained and is void.

Plaintiff applied for an order for support money, counsel fees and costs pending the action. At the inception of the hearing of that application, counsel for Andrew objected to any hearing thereof, on the asserted ground that plaintiff was not the wife of Andrew, that they were divorced in February, 1948, and that plaintiff was represented in court in the divorce action. Counsel for plaintiff replied that they had alleged that there was a fraudulent decree of divorce with no residence in Nevada of either party. The objection was overruled. Plaintiff then asked Andrew certain questions in respect to his residence in California. He testified that he had been a licensed real estate broker in California for 15 years, during which period he had never registered to vote except in San Francisco, and did vote in San Francisco and nowhere else. Thereupon Andrew's counsel said 'in the interest of time I withdraw my objection and the court may proceed on the order to show cause; I think we can save a great deal of time.' To which plaintiff's counsel responded, 'I will address no further questions as to the jurisdiction of the Court, in view of that stipulation, your Honor.' ¹

Plaintiff was then called to the stand. She testified that she and Andrew were married in San Francisco in 1939 and that she resides in San Francisco. She then gave evidence tending to show her financial need and Andrew's ability to pay. April 21, 1950, the court ordered Andrew to pay $150 monthly for support, $300 on account of counsel fees, and $20 on account of costs.

That evidence supported the order made. Plaintiff proved the marriage. That shifted to Andrew the burden of showing what, if anything, prevented that marriage ceremony from establishing the relationship of husband and wife between these parties, or what, if anything, later occurred to terminate that relationship. Bernheimer v. Bernheimer, 103 Cal.App.2d 643, 230 P.2d 17; Thomas v. Thomas, 66 Cal.App.2d 818, 153 P.2d 389; Bancroft v. Bancroft, 9 Cal.App.2d 464, 50 P.2d 465. Andrew did not meet that burden. Upon that hearing there was presented to the court no evidence whatsoever concerning the Nevada divorce decree or any of its incidents.

Later, Andrew gave notice of motion to vacate the pendente lite order of April 21, 1950, upon the ground that the court lacked jurisdiction to make that order because these parties had not been husband and wife since February 2, 1948, when a Nevada court of competent jurisdiction divorced them by a decree in an action in which the plaintiff personally appeared.

August 30, 1950, upon motion of plaintiff, the hearing of defendant's motion was continued until October 10, 1950. As a condition of the continuation, the court ordered that support payments stop pending the hearing of defendant's motion.

At the inception of that hearing, plaintiff filed an amended complaint in which she sought annulment of the Nevada decree, a divorce from Andrew for extreme cruelty, and an accounting. As grounds for annulment of the decree she alleged: the same asserted misrepresentations as in the original complaint (summarized earlier in this opinion); Andrew never acquired a Nevada residence and went there for the sole purpose of getting a divorce; plaintiff was mentally incapacitated during that period; various documents, including a power of attorney to Gordon Rice, were executed by her while incapacitated and under the influence and control of Andrew; and Andrew caused perjured testimony to be given the Nevada court concerning his place of residence.

Defendant introduced in evidence a photostatic copy of a power of attorney bearing plaintiff's signature. By it, she purportedly appointed one Gordon Rice her attorney at law and in fact to represent her in any suit for divorce that might be brought against her in Nevada by her husband. Plaintiff testified the signature looked like hers but she could not say if it was hers. She was sure she never gave such a power of attorney.

Defendant then put in evidence the judgment roll and the transcript of testimony in the Nevada action. It appeared therefrom that Andrew brought the action; that plaintiff herein personally appeared therein by her attorney, Gordon Rice, filing an answer, and through him participated at the trial; that the Nevada court found, upon supporting evidence, that Andrew was and for more than six weeks prior to filing the complaint had been, a bona fide resident of Nevada and of Washoe County, and was corporally present and domiciled therein during all of that time; and that the decree had become final.

Defendant next put in evidence the file of an action for divorce, in the Superior Court, San Francisco, brought in 1947 by this plaintiff against this defendant. Included in the file was an instruction (dated April 14, 1948) to the clerk to dismiss that action for the reason that a decree of divorce had been theretofore obtained by the parties in Nevada. A certified copy of the Nevada findings and decree was attached thereto. Plaintiff testified she did not remember signing that instruction for dismissal but that it was her signature.

The trial court sustained objections to a number of questions which plaintiff's attorney asked her concerning the power of attorney, questions such as these: Did she know the Gordon Rice mentioned in the document? Had she in any manner contacted or spoken to or written to or received anything from anyone by the name of Gordon Rice? Had she ever appointed anyone as her attorney to appear for her in the Reno divorce action? Her counsel said that by such questions he sought and offered to prove that plaintiff had no attorney named Gordon Rice and never knew what he was doing or what he had done. The court said, 'I will stay by the ruling, objection sustained.'

The same rulings were made as to these questions: Did she ever know whether she had appointed anyone to be her attorney in Nevada? Was she ever a resident of Nevada? As to papers presented to her by Andrew on or about January 29, 1948, the date of the power of attorney, did Andrew explain to her the nature of those papers? (She said he did not ask her to read it; was positive she did not read any document he gave her to sign at that time.) Did she know whether Andrew ever lived in Nevada? Did Andrew ever notify her he was living in Nevada?

Upon the sustaining of an objection to the question whether shortly after the Reno divorce Andrew talked to plaintiff about Elena Cronier, plaintiff's counsel said he sought to show that for a period of time, about that time, Andrew told a story to plaintiff about Elena Cronier which terrified plaintiff concerning the fact, represented by Andrew, that his child was to be born of that party and that he represented that as a necessity for obtaining the decree of divorce in Reno; he represented a picture to plaintiff, which she believed, of a complete source of embarrassment, of 'ostracization,' of complete financial ruin to himself and plaintiff, and that was the cause of her becoming hysterical and of executing certain documents at his demand. Further, her counsel desired to show through this witness that Andrew represented that the Reno divorce was merely for a temporary marriage, so that a name would be given the child which he represented was to be born, and that he would thereafter come back to plaintiff, and live with her and be remarried; that the decree was obtained through collusion and fraud, at a time when his client was so mentally upset she did not know what was happening; that the Nevada decree was void because neither of the parties...