Hudson v. Hudson, S.F. 19886

Citation344 P.2d 295,52 Cal.2d 735
Decision Date05 October 1959
Docket NumberS.F. 19886
CourtUnited States State Supreme Court (California)
PartiesOlive HUDSON, Respondent, v. James HUDSON, Appellant.

George Porter Tobin, Los Gatos, for appellant.

Haskell M. Goodman, San Jose, for respondent.

TRAYNOR, Justice.

Defendant appeals from an order granting plaintiff temporary alimony, attorney's fees, court costs, and other relief in her action for divorce and permanent alimony.

The parties were married in Reno, Nevada on May 3, 1947. They moved to California in 1950, and plaintiff is still domiciled in this state. Defendant left their home on April 6, 1957, announcing his intention to go to Reno, obtain a divorce, and return in about six weeks. Plaintiff filed her action on April 22, 1957, and defendant was personally served in Idaho on May 16, 1957. Defendant filed his action for divorce in Idaho on May 21, 1957, and plaintiff was personally served in California. Plaintiff did not appear in the Idaho proceeding. On June 14, 1957, she obtained an order to show cause why she should not be granted relief pendente lite in the California action. On the same day, defendant appeared by his attorney in the California action and demurred to plaintiff's complaint. The Idaho court granted defendant a final decree of divorce on June 19, 1957. Defendant introduced this decree in the California proceeding and resisted the order to show cause on the ground that the decree had dissolved the marriage. Plaintiff introduced evidence tending to attack the validity of the Idaho decree. The court held that plaintiff had made a prima facie showing that a marriage existed and granted the requested relief.

Defendant contends that the Idaho divorce decree must be given full faith and credit (U.S.Const., art. IV, sec. 1); that the trial court had no jurisdiction to grant alimony unless the parties were married; that even though on a proper showing a wife may obtain temporary alimony, costs, and fees to enable her to attack an ex parte decree, plaintiff cannot, on the ground that her attack upon the decree is weak and inconclusive; and that even if the Idaho decree did not automatically terminate plaintiff's right to support, the order must still be reversed on the ground that the court abused its discretion in determining the amount of the award.

Neither alimony, temporary or permanent, nor costs and fees can be awarded if no valid marriage between the parties ever existed. Dietrich v. Dietrich, 41 Cal.2d 497, 502-504, 261 P.2d 269; Hite v. Hite, 124 Cal. 389, 391-395, 57 P. 227, 45 L.R.A. 793; In re Cook, 42 Cal.App.2d 1, 3, 108 P.2d 46. When a valid marriage is admitted, however, and the issue before the court is the validity of an ex parte divorce, the trial court may grant the wife temporary alimony, costs, and fees to enable her to attack the ex parte divorce if she demonstrates her need for the award and her husband's ability to pay it. Kopasz v. Kopasz, 34 Cal.2d 423, 424-425, 210 P.2d 846; Baldwin v. Baldwin, 28 Cal.2d 406, 417, 170 P.2d 670; Gromeeko v. Gromeeko, 110 Cal.App.2d 117, 127, 242 P.2d 41. Recent district court of appeal decisions would add another condition: the wife must prove that her attack on the ex parte divorce is made in good faith and with a reasonable probability of success. Knox v. Knox, 88 Cal.App.2d 666, 676-677, 199 P.2d 766; Kalmus v. Kalmus, 103 Cal.App.2d 405, 420-423, 230 P.2d 57; cf. Ottinger v. Ottinger, 141 Cal.App.2d 220, 225, 296 P.2d 347. The addition of this condition is based on the theory that the entry of a valid ex parte divorce automatically terminates the marriage and a fortiori marital obligations and rights, including support rights. Knox v. Knox, supra, 88 Cal.App.2d at page 676, 199 P.2d 766. To avoid this effect of the ex parte divorce, the wife must demonstrate that the divorce court was without jurisdiction; only if she can show that she is likely to succeed can her husband be required to furnish the necessary funds. We need not determine whether plaintiff has met this condition, for the theory upon which it is based is inconsistent with the recent decision of the United States Supreme Court in Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed. 1456.

Following the Williams cases (Williams v. State of North Carolina I, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed 279 and Williams v. North Carolina II, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577), the question arose whether a valid ex parte divorce entered at the domicile of only one party to the marriage automatically terminated the wife's right to support. This question was settled by the theory of divisible divorce, foreshadowed in Esenwein v. Commonwealth, 325 U.S. 279, 281-283, 65 S.Ct. 1118, 89 L.Ed. 1608 (concurring opinion) and set forth in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, where the court held that an ex parte Nevada divorce procured by the husband did not terminate the wife's prior adjudicated right to separate maintenance: 'The result in this situation is to make the divorce divisible to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.' Id., 334 U.S. at page 549, 68 S.Ct. at page 1218. Finally, in Vanderbilt v. Vanderbilt, supra, the court perfected the divisible divorce theory by its holding that even when the wife's right to support had not been reduced to judgment before the ex parte divorce, that divorce could not affect her support rights. The court rested its holding on the due process clause: since the foreign state had no personal jurisdiction over the absent spouse, its decree '* * * to the extent it purported to affect the wife's right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition.' Id., 354 U.S. at page 419, 77 S.Ct. at page 1363. Since the due process clause forbids the divorce court to adjudicate the absent wife's right to support, it follows that she cannot be deprived prived by that court of whatever rights of support she had under the law of her domicile at the time of the divorce. Lewis v. Lewis, 49 Cal.2d 389, 394, 317 P.2d 987.

The crucial question in this case, therefore, is whether the law of California permits plaintiff to obtain support following the entry of an ex parte divorce. Of the thirty-three jurisdictions that have passed on this question, twenty-three states and the District of Columbia have held that a wife may obtain support or alimony following the entry of an ex parte divorce. White v. White, 83 Ariz. 305, 307-309, 320 P.2d 702; Wagster v. Wagster, 193 Ark. 902, 906, 103 S.W.2d 638; Davis v. Davis, 70 Colo. 37, 41, 197 P. 241; Hopson v. Hopson, 95 U.S.App.D.C. 285, 221 F.2d 839, 847; Pawley v. Pawley, Fla., 46 So.2d 464, 471-473, 28 A.L.R.2d 1358, certiorari denied 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632; Durden v. Durden, 191 Ga. 404, 408, 12 S.E.2d 305 (only if wife's suit for divorce and alimony was filed before the entry of husband's ex parte divorce); Pope v. Pope, 2 Ill.2d 152, 156-157, 117 N.E.2d 65; Bennett v. Tomlinson, 206 Iowa 1075, 1079, 221 N.W. 837; Willoughby v. Willoughby, 178 Kan. 62, 65-67, 283 P.2d 428 (by statute); Davis v. Davis, Ky., 303 S.W.2d 256, 257; Parker v. Parker, 211 Mass. 139, 144, 97 N.E. 988; Malcolm v. Malcolm, 345 Mich. 720, 725-727, 76 N.W.2d 831; Sheridan v. Sheridan, 213 Minn. 24, 27-28, 4 N.W.2d 785; Bodie v. Bates, 95 Neb. 757, 764-770, 146 N.W. 1002, L.R.A.1915E, 421, second appeal 99 Neb. 253, 156 N.W. 8, reversed on other grounds 245 U.S. 520, 38 S.Ct. 182, 62 L.Ed. 444; Woodhouse v. Woodhouse, 17 N.J. 409, 411-412, 111 A.2d 631 (by statute); Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 349-351, 153 N.Y.S.2d 1, 135 N.E.2d 553 (by statute), affirmed 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; Armstrong v. Armstrong, 162 Ohio St. 406, 410-411, 123 N.E.2d 267, affirmed 350 U.S. 568, 76 S.Ct. 629, 100 L.Ed. 705; Spradling v. Spradling, 74 Okl. 276, 277-279, 181 P. 148; Wilford v. Wilford, 38 R.I. 55, 56-58, 94 A. 685 (contested divorce); Nelson v. Nelson, 71 S.D. 342, 345-346, 24 N.W.2d 327; Toncray v. Toncray, 123 Tenn. 476, 491-492, 131 S.W. 977, 34 L.R.A.,N.S., 1106; Hutton v. Dodge, 58 Utah 228, 237, 198 P. 165; Hicks v. Hicks, 69 Wash. 627, 630-631, 125 P. 945; Ische v. Ische, 252 Wis. 250, 260-263, 31 N.W.2d 607, 32 N.W.2d 70. Several of these cases rest upon familiar theories of jurisdiction: either that the divorce court had not decided the issue of alimony (e. g., Ische v. Ische, supra, 252 Wis. at pages 260-263, 31 N.W.2d 607, 32 N.W.2d 70; Hicks v. Hicks, supra, 69 Wash. at page 630, 125 P. 945; Malcolm v. Malcolm, supra, 345 Mich. at page 726, 76 N.W.2d 831), or that the divorce court, having no jurisdiction over the wife, could not cut off her right to alimony (e. g., Armstrong v. Armstrong, supra, 162 Ohio St. at page 410, 123 N.E.2d 267). The more recent cases accept the divisible divorce theory, emphasizing the dominant concern of the wife's domiciliary state in protecting her right to support from a husband who seeks to avoid his duties by obtaining an ex parte divorce in a foreign state (e. g., White v. White, supra, 83 Ariz. at pages 307-310, 320 P.2d 702; Hopson v. Hopson, supra, 221 F.2d at page 844; Pawley v. Pawley supra, 46 So.2d at page 472; Willoughby v. Willoughby, supra, 178 Kan. at pages 66-67, 283 P.2d 428; Davis v. Davis, Ky., supra, 303 S.W.2d at page 257; Vanderbilt v. Vanderbilt, supra, 1 N.Y.2d at pages 350-351, 153 N.Y.S.2d 1, 135 N.E.2d 553; see also, Morris, Divisible Divorce, 64 Harv.L.Rev. 1287).

Although this precise question has not been settled in this state, certain rules have been established in related cases. We have held that an Illinois wife could enforce an Illinois support order entered subsequent to her husband's ex parte...

To continue reading

Request your trial
67 cases
  • Altman v. Altman, 82
    • United States
    • Court of Appeals of Maryland
    • May 5, 1978
    ...v. White, 83 Ariz. 305, 320 P.2d 702, 705 (1958); Rice v. Rice, 213 Ark. 981, 214 S.W.2d 235, 239 (1948); Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295, 300-301 (1959) (Traynor, J.); Hopson v. Hopson, 95 U.S.App.D.C. 285, 221 F.2d 839, 847 (1955) (applying D.C. law); Sorrells v. Sorrells, 8......
  • Fehlhaber v. Fehlhaber
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 6, 1982
    ...legal separation)." DeYoung v. DeYoung, 27 Cal.2d 521, 527, 165 P.2d 457, 460 (1946) (Schauer, J., concurring); Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295, 299-300 (1959); Patterson v. Patterson, 82 Cal.App.2d 838, 187 P.2d 113, (1947). This requirement of a marriage is a "jurisdictional......
  • Powers v. DISTRICT COURT OF TULSA COUNTY
    • United States
    • Supreme Court of Oklahoma
    • December 29, 2009
    ...other legal interests of the spouses. Shipp v. Shipp, 1963 OK 133, 383 P.2d 30, 32 (describing divisible divorce); Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295 (1959) (Justice Traynor's opinion for the court explained divisible divorce and that an ex parte divorce in Idaho did not foreclos......
  • Cnty. of Santa Clara v. Escobar, H038121
    • United States
    • California Court of Appeals
    • January 29, 2016
    ...reason of the pendency of two actions predicated on the same cause of action"], disapproved on another point in Hudson v. Hudson (1959) 52 Cal.2d 735, 739, 344 P.2d 295.) Whatever the precise mechanism for effecting abatement, it possesses two critical features: it is not a disposition on t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT