Huntington v. Huntington

• Decision Date: 19 October 1953
• Citation: 120 Cal.App.2d 705,262 P.2d 104
• Parties: HUNTINGTON v. HUNTINGTON. Civ. 19562.
• Court: California Court of Appeals

Page 104

262 P.2d 104

120 Cal.App.2d 705

HUNTINGTON v.HUNTINGTON.

Civ. 19562.

District Court of Appeal, Second District, Division 2, California.

Oct. 19, 1953.

Rehearing Denied Nov. 6, 1953.

Newell & Chester, Los Angeles, By Robert M. Newell, Los Angeles, for appellant.

Hightower & Martin, Los Angeles, By John L. Marin, Los Angeles, for respondent.

MOORE, Presiding Justice.

To an action by respondent filed December 18, 1951, for divorce, for support, and for custody and support of her two children, appellant answered February 4, 1952, with a general denial, and on June 13 in a supplemental answer he pleaded in bar that the District Court of the First Judicial District of Nevada had on March 27, 1952, granted him a final decree of divorce.The issues thus created were resolved by findings whereby the court below determined that (1) by reason of appellant's cruelties, respondent is entitled to a decree of divorce; (2)she is a fit and proper person to have the custody and care of her children; (3)appellant is capable of supporting his wife and children on a high standard of living to which he had habituated them; (4)appellant had an annual income of $53,000 in 1951 from a trust held by the Security First National Bank of Los Angeles, and for 1952 it will be about $48,000; (5)he is a life beneficiary of such trust fund; (6)he is capable of paying for the support and maintenance of respondent and her children and for reasonable compensation to the attorneys of responsent and necessary costs of suit and expenditures incurred in the protection of the interests of respondent and her children; (7)respondent is without sufficient funds with which to maintain herself and children or to pay reasonable compensation to her attorney and others contributing to the prosecution of her cause and to pay the necessary costs and money necessarily expended and debts incurred by respondent during the pendency of this action and to June 15, 1952, in the sum of $1,450.96.Other findings will appear in the discussion.

Because the findings declare and the judgment decrees that appellant took steps in bad faith to make Nevada his permanent home, his first ground for a reversal is that 'Defendant's Nevada Divorce Decree Was Entitled to Full Faith and Credit.'

In support of such propositionappellant cites Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577;Hinderlider v. LaPlata, River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202;Baldwin v. Baldwin, 28 Cal.2d 406, 170 P.2d 670;DeYoung v. DeYoung, 27 Cal.2d 521, 165 P.2d 457;Murphy v. Travelers Insurance Company, 92 Cal.App.2d 582, 207 P.2d 595;Lowe Corporation v. Rasmusson, 53 Cal.App.2d 490, 127 P.2d 1002; 2 Nelson, Divorce and Annulment (2d Ed.) 499; Keenan, On Residence and Domicil, 457.Such authorities in general terms uphold certain statements of appellant made in his attempts to overcome the findings of fact and to discredit the adjudication of his bad faith.But under a cold analysis, it is clear that they are inapplicable to the findings or to the evidence in the record.

The good faith of a spouse who migrates to a sister state for the purpose of obtaining a divorce is a question of fact and he who asserts the invalidity of a decree thus gained has the burden of proof.Respondent accepted the burden and produced a generous quantity of evidence in support of her contention.Appellant was born in Los Angeles County.He was reared and educated there, and there resided, voted, married, established a home, and became the father of two children.His only bank account prior to his sudden flight to Nevada was maintained in Pasadena and his only income was from a trust administered in the City of Los Angeles.He told neither his wife, nor his mother, nor his children of an intention to live in Nevada.In fact, he told no one but a crony in cups of his plan.He departed with a few personal effects, leaving his utility accounts and his safety deposit box in his own name.On his arrival in Reno he telephoned his wife he disliked the cold and would remain but a short time, and caused his attorney in that city to notify respondent that he was in the divorce capital because of marital difficulties.

But appellant was not alone or lonely in the new place.He was there attended by one 'Lucille' who was bent upon a kindred mission.She resided with appellant in the same apartment, used the same attorney to get a divorce that represented her consort in his far-flung venture, and he supplied her with clothes and otherwise maintained her.But evidently aiming to make a record of events that would establish his good faith residence, before leaving he resigned from the Pasadena golf club where he never played; at increased expense he changed his membership in the California Club of Los Angeles to 'non-resident' status.In Reno he procured a chauffeur's license; registered his automobile; paid a personal property tax in the amount of $8.90 and a poll tax in the sum of $3.He registered as a voter but never exercised his right of franchise, leased an apartment at $85 per month and opened a bank account with $200 but never drew a check.He did tell some of his witnesses in Reno he was to make Reno his permanent home.He established no business or place to transact his affairs but received his mail at the office of his Reno attorney.Such facts and others to be mentioned are sufficient to warrant the finding that appellant's claim of having 'established a new residence for himself in the State of Nevada after December 15, 1951, is sham and fictitious * * * said Nevada residence * * * being merely colorable and designed to invoke the jurisdiction of the Nevada courts * * * was simulated or pretended and for the purpose of obtaining a divorce, and * * * with the intention to leave Nevada when he accomplished such purpose.No bona fide domicile was established in Nevada by either of the spouses.'

Under the findings, then, appellant was still a domiciliary of California at the time he commenced his action for divorce in Nevada.His activities ostensibly designed to establish the good faith of his residence were not conducted with a sincere intent; also, the circumstances under which they were performed are such as to warrant the finding that they were dishonestly designed to identify appellant with Nevada and, therefore, are not sufficient to effect a change of domicile.Civ.Code, §§ 150,150.1,150.2.¹

It is equally established by the record that respondent was domiciled in California at the time the Nevada action was commenced and continues to be so and did not participate therein or file a personal appearance.

From the language of the cited code sections it is evident that the legislature conceived that when a divorce decree is certified from Nevada, the full faith and credit clause is not necessarily applicable until a compliance with the requirements of due process has been shown.However, inasmuch as appellant bases his claim to a reversal primarily upon the ground that full faith and credit was not extended to his Nevada decree, exploration of that topic is indispensable to a complete disposition of this appeal.

A defendant in a Nevada divorce action is at liberty to attack collaterally the decree so long as he did not participate in the case or make a personal appearance.Estin v. Estin, 334 U.S. 541, 549, 68 S.Ct. 1213, 92 L.Ed. 1561, 1568.But if he did participate in the Nevada action or if he was personally served, the defendant is inhibited from making a collateral attack upon the decree.Coe v. Coe, 334 U.S. 378, 384, 68 S.Ct. 1094, 92 L.Ed. 1451, 1459;Sherrer v. Sherrer, 334 U.S. 343, 351, 68 S.Ct. 1087, 92 L.Ed. 1429, 1436;Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, 556.The case of Sherrer suffered a unique fate.Even though both parties participated in the Florida action, the Massachusetts court held it was not entitled to full faith and credit because neither party had established a Florida domicile.But it is not pertinent to a consideration of the attack upon the judgment obtained by appellant in Nevada.Not only did respondent not visit Nevada during the pendency of the action there, but she did not make a legal appearance in the case.She is therefore not barred from attacking appellant's decree.Appellant has industriously attempted to support the validity of his Nevada judgment by citing certain decisions that rejected attacks upon foreign divorce decrees.The leading authority invoked in his support is Baldwin v. Baldwin, 28 Cal.2d 406, 170 P.2d 670.That decision did, in truth, reject the attack upon the Nevada decree for the reason that the trial court determined as a fact that Mr. Baldwin did sincerely intend to remain in Nevada.That finding was the very backbone of the judgment and protected it from a collateral attack.He had waited three and a half months to file action after his arrival in that state.This appellant's hesitation after his six weeks had expired did nothing to increase the glamour of his good faith in the matter of establishing his long residence.The law is established that the bona fides of the galloping litigant in search of a forum wherein to seek a divorce is a question of fact.Marshall v. Marshall, 69 Cal.App.2d 20, 23, 157 P.2d 854.That fact herein was found adversely to appellant.Also, appellant cites Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684, 686;Colburn v. Colburn, 70 Mich. 647, 38 N.W. 607, 608.Both decisions held nothing more than that the good faith of an actual change of residence to another state with the intention of remaining there was not affected by the migrant's motive to procure a divorce.Moreover, appellant quotes at length from 2 Nelson, Divorce and Annulment, supra, and Keenan's On Residence and Domicile, The substance quoted merely declares fundamental principles inapplicable where the mala fides has been determined by ...