Marriage of Leff, In re

• Decision Date: 17 May 1972
• Parties: In re the Marriage of Josephine and Theodore Leff. Josephine LEFF, Appellant, v. Theodore LEFF, Respondent. Civ. 36775, 37404.
• Court: California Court of Appeals Court of Appeals

Page 195

102 Cal.Rptr. 195

25 Cal.App.3d 630

In re the Marriage of Josephine and Theodore Leff Josephine LEFF, Appellant, v. Theodore LEFF, Respondent.

Civ. 36775, 37404.

Court of Appeal, Second District, Division 5, California.

May 17, 1972.

Rehearing Denied June 7, 1972.

Morton L. Greenberg and Mortimer Braus, Los Angeles, for appellant.

Long & Levit, Richard B. Wolf and David C. Bogert, Los Angeles, for respondent.

REPPY, Associate Justice.

On August 16, 1967, Josephine Leff (hereinafter, Wife) filed a divorce complaint against her then husband, Theodore Leff (hereinafter, Husband) on the grounds of extreme cruelty and adultery, alleging a marriage which was entered into on July 23, 1966, in Las Vegas, Nevaga, and which culminated in separation on August 9, 1967.

In his first amended Answer (filed December 19, 1967, pursuant to Order of the Court) Husband alleged that both parties were residents of Nevada, that he had commenced an action for divorce there on September 22, 1967; that Wife was personally served in California with a copy of a Summons and Complaint in the Nevada action pursuant to an Order For Publication of Summons (Husband's Exhibit C); and that a judgment of divorce had been awarded to Husband in Nevada on October 24, 1967.

On July 28, 1969, the trial of Wife's California divorce action commenced with a stipulation that the first issue to be resolved was the validity of the Nevada divorce decree. After testimony was taken on the issue of jurisdiction of the Nevada court, the trial court found:

'That (Husband), from August 30, 1965, to and including September 27, 1967, was a continuous bona fide resident of the State of Nevada.

'That (Husband) filed an action for divorce against (Wife) in Pershing County, Nevada, on September 27, 1967.

'That (Husband), on September 27, 1967, and for more than six weeks prior thereto, was a bona fide resident of the County of Pershing, State of Nevada.

'That on October 24, 1967, (Husband) was granted an absolute decree of divorce from (Wife) by order of the 6th Judicial Court of the State of Nevada, in and for the County of Pershing.'

Based on these findings the trial court concluded that the Nevada divorce decree was entitled to full faith and credit in California. Pursuant to these findings and conclusions the trial court gave judgment for Husband, ordering that Wife take nothing by reason of her Complaint.

Wife appeals from the judgment as entered.

Wife herein claims that the Nevada judgment is void on its face because the evidence adduced in Nevada was insufficient to support the judgment, particularly that there was a failure of proof in the Nevada proceeding as to 'the specific six week period, from date to date, when, during the summer of 1965 (Husband) was actually resident, that is physically, corporeally, continuously present in the State of Nevada' and as to 'the corroboration of a specific six week period, from date to date, of actual residence during the summer of 1965.'

It is settled that, 'the courts of one state have no legal right to 'annul,' or 'vacate,' or 'set aside' a foreign judgment, . . .' (Dandini v. Dandini, 86 Cal.App.2d 478, 485, 195 P.2d 871, 874). If Wife seeks this relief by asserting the absence of sufficient evidence in the Nevada proceeding to support the Nevada finding of jurisdiction we cannot accommodate her. However, it is equally well settled that where, as here, a decree of divorce rendered in a sister state is offered in evidence as a bar to an asserted right, the trial court may inquire into the Jurisdiction of the sister-state court which rendered the decree. (Crouch v. Crouch, 28 Cal.2d 243, 249, 169 P.2d 897.)

Under California law, a collateral attack on a local judgment is limited to an examination of the judgment roll. Hence, if the jurisdictional defect does not appear on the face of the record, the presumption of jurisdiction is conclusive. (Craney v. Low, 46 Cal.2d 757, 760, 298 P.2d 860; Harley v. Superior Court, 226 Cal.App.2d 432, 437, 38 Cal.Rptr. 72; Hogan v. Superior Court, 74 Cal.App. 704, 709, 241 P. 584.) In Nevada the rule is otherwise. There, in a collateral attack on a Nevada judgment, the court may go beyond the judgment roll and review the jurisdictional evidence for sufficiency. (Moore v. Moore, 75 Nev. 189, 336 P.2d 1073, 1075.) However, even there, the rule is that there must be a total failure of proof of jurisdiction in order to find the decree void. (Moore v. Moore, Supra.)

In the instant case, however, we are concerned with a collateral attack on a Nevada judgment by a California court. In such circumstances California has followed the well established rule of Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, and reexamined the jurisdictional facts to determine whether the foreign court in fact had jurisdiction. Extrinsic evidence is admissible in such a proceeding. 'Such decree may be impeached collaterally by extrinsic evidence. This is true notwithstanding either the recitals of such decree or the false testimony given by the plaintiff in support of the judgment.' (Roberts v. Roberts, 81 Cal.App.2d 871, 879, 185 P.2d 381, 385 (disapproved on another point in Spellens v. Spellens, 41 Cal.2d 210, 219, 317 P.2d 613); see also Seabron v. Seabron, 133 Cal.App.2d 374, 375, 284 P.2d 117; Strauss v. Strauss, 90 Cal.App.2d 757, 758, 203 P.2d 857.) The trial court reexamining the jurisdiction of a sister state may scrutinize the circumstances occurring after rendition of that decree as well as the facts as they existed at the time of rendition of the decree. The trial court here was not limited to a review of the evidence adduced in the Nevada proceeding as Wife suggests. Reexamination of jurisdiction on collateral attack is in effect a trial de novo on that issue.

Wife relies on Aldabe v. Aldabe, 209 Cal.App.2d 453, 26 Cal.Rptr. 208, pointing out that there the court reviewed the jurisdictional evidence adduced in the Nevada Finally in the instant matter, Wife, having failed to introduce the transcript of the Nevada proceeding in evidence ² at the trial below, cannot now argue that the facts adduced therein somehow limited the jurisdictional inquiry here.

                divorce proceeding. 1  However, in Aldabe the pivotal issue was whether the wife who sought to collaterally attack the Nevada divorce decree in California had participated in the Nevada proceeding and thus could be said to be estopped from attacking the Nevada judgment.  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 the defendant has participated in the divorce proceedings, and has been accorded full opportunity to contest jurisdictional issues and where the foreign decree is not susceptible to such collateral attack in the courts of the state which rendered the decree.  It was pursuit of the inquiry whether the defendant wife had had an opportunity to contest the jurisdictional issue in Nevada and whether the Nevada decree was subject to collateral attack on this issue in Nevada which led the Aldabe court to a review of the jurisdictional evidence introduced in the Nevada proceeding
                

The admissibility of extrinsic evidence to prove the validity or invalidity of the Nevada decree was never questioned by Husband herein, and the trial court gave counsel on each side every opportunity to bring in whatever evidence they thought pertinent to this issue.

Wife claims, however, that the evidence was insufficient to support the trial court's finding that Husband was a bona fide domiciliary of Nevada at the time the Nevada decree was granted.

SUMMARY OF DOMICILE EVIDENCE

a) The Nevada ranch: In 1960, six years prior to Husband's marriage to Wife, he had purchased a ranch in Winnemucca, Nevada, on which he intended to retire. The ranch, which Husband ran under the name Great Western Land & Cattle Co., consisted of a combination of three units. As of June 7, 1966, it was worth approximately $1,300,000.00.

The buildings of the ranch included a main house which was occupied by the ranch manager. Husband supervised numerous improvements to the ranch over the years from 1961 through 1965, including the drilling of wells, supplying electricity, installing electric pumps, a diversion dam, underground pipes for water, a feed lock consisting of ten corrals, putting 500 acres under cultivation, and enlarging the main house to provide it with a bedroom and private bath for himself. Husband testified that from 1962 through 1965 he spent as much of each summer as possible at the Nevada ranch from turnout ³ time in April, until roundup time in October. He did not spend the six weeks immediately preceding the filing of his Nevada divorce complaint in Nevada. ⁴ Although in 1966 Husband attempted to sell part of the Great Western Land & Cattle Co. holdings, the deal was never consummated, and Husband owned all of the property at the time of trial.

Wife testified that during the course of their marriage, Husband went to the ranch in Nevada five or six times; that on these occasions he never spent more than three or four days at a time in Nevada; and that she phoned him every night while he was in Nevada at the Sonoma Inn in Winnemucca.

b) Living arrangements in California: For many years prior to 1960 Husband lived in California and acquired a considerable amount of property here. From the summer of 1965 until approximately November 1966 Husband maintained an apartment at 323 No. Almont, Beverly Hills, where he lived part of the time with his son, Brad, who was going to school in Beverly Hills. He then on December 16, 1966, moved to 2555 No. Hutton Drive, Beverly Hills, where he signed a two-year lease. Husband married Wife July 23, 1966. They lived together with their sons by prior marriages at the Hutton Drive residence during the course of the marriage.

Husband wished to keep his son in...