Hinson v. Hinson
| Decision Date | 01 December 1950 |
| Citation | 100 Cal.App.2d 745,224 P.2d 405 |
| Parties | HINSON v. HINSON. Civ. 17795. |
| Court | California Court of Appeals Court of Appeals |
Cook & Johnson, by M. O. Johnson, Van Nuys, for appellant.
Gordon M. Emanuel, Los Angeles, for respondent.
Defendant appeals from that portion of a judgment in a divorce action granting attorney's fees in the sum of $500 and court costs in the amount of $15.00 to plaintiff.
i. December 2, 1948, defendant herein obtained in the State of Nevada a decree of divorce from plaintiff herein.
ii. December 9, 1948, plaintiff instituted in the superior court of Los Angeles county the present action for divorce.
iii. February 1, 1949, defendant appeared and filed an answer in the present suit denying plaintiff's allegations of cruelty and affirmatively pleading as a bar to the present action the decree of divorce he had obtained in Nevada.
After trial in the instant case the trial court found that defendant had obtained, prior to the institution of the present action, a divorce from plaintiff in Nevada which was a valid existing judgment of divorce; that such judgment constituted a bar to the causes of action alleged by plaintiff in the instant case, and entered judgment in favor of defendant but which included a provision ordering defendant to pay $500 as attorney's fees and $15.00 costs.
Question: Was it error for the trial court to order defendant to pay plaintiff attorney's fees and costs in view of the fact that they were not husband and wife at the time the present action was instituted?
This question must be answered in the affirmative. In an action for divorce the existence of a marriage between plaintiff and defendant is a jurisdictional prerequisite to the power of the court to order support, costs or counsel fees. The invalidity of the marriage being a jurisdictional prerequisite may be shown at any time. (Colbert v. Colbert, 28 Cal.2d 276, 279 et seq., 169 P.2d 633; Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923 ().)
Mr. Justice McFarland, speaking for the Supreme Court of California, in Howell v. Howell, 104 Cal. 45, at page 47, 37 P. 770 thus states the rule:
Baldwin v. Baldwin, 28 Cal.2d 406, 416, 170 P.2d 670, relied on by plaintiff, is not here in point for the reason that it is factually different from the situation here involved. In the Baldwin case the plaintiff was the wife of defendant at the time she instituted her action on October 27, 1939. Thereafter on ...
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Dimon v. Dimon
...v. Calhoun, 70 Cal.App.2d 233, 237, 160 P.2d 923; Patterson v. Patterson, 82 Cal.App.2d 838, 842, 187 P.2d 113; Hinson v. Hinson, 100 Cal.App.2d 745, 746, 224 P.2d 405. The plaintiff seeks to distinguish the Howell case on the ground that the action there was brought upon the prior divorce ......
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Dimon v. Dimon
...hearing by the Supreme Court was denied. See, also, Patterson v. Patterson, 82 Cal.App.2d 838, 842, 187 P.2d 113 and Hinson v. Hinson, 100 Cal.App.2d 745, 746, 224 P.2d 405. In De Young v. De Young, 27 Cal.2d 521, 165 P.2d 457, 460, the wife sued in Los Angeles County in 1942 for separate m......
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Ottinger v. Ottinger
...that the court was without power to grant attorney's fees to respondent is also without merit. It is true that in Hinson v. Hinson, 100 Cal.App.2d 745, 224 P.2d 405, it was held that if a valid Nevada divorce was secured prior to the filing of the California action, attorney's fees could no......
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