Marriage of Weintraub, In re

• Decision Date: 25 April 1985
• Citation: 213 Cal.Rptr. 159,167 Cal.App.3d 420
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Alvin and Carole Sue WEINTRAUB. Alvin Abraham WEINTRAUB, Respondent, v. Carole Sue WEINTRAUB, Appellant. Civ. B002218.

Page 159

213 Cal.Rptr. 159

167 Cal.App.3d 420

In re the MARRIAGE OF Alvin and Carole Sue WEINTRAUB Alvin Abraham WEINTRAUB, Respondent, v. Carole Sue WEINTRAUB, Appellant.

Civ. B002218.

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

April 25, 1985.

Klass, Helman & Ross and Robert M. Ross, Los Angeles, for appellant.

Marvin Gross and Susan B. Oman, Los Angeles, for respondent.

ASHBY, Associate Justice.

Appellant Carole Sue Green Weintraub (hereinafter Wife) appeals from an order dismissing her petition against respondent Alvin Weintraub (hereinafter Husband) for reinstatement of spousal support. The trial court did not weigh the evidence but held that even assuming all of Wife's allegations were true, the court would have no authority to reinstate spousal support. We conclude that under the unusual circumstances alleged in this case the court would have such authority, therefore we reverse for further proceedings in the trial court.

The parties were married in 1953 and separated in 1977. An interlocutory judgment of dissolution of marriage was entered in 1978 requiring Husband to pay spousal support to Wife. ¹ After several modifications Husband was ordered to pay Wife $750 per month in spousal support, effective commencing February 1, 1980, which order was still in effect in December 1981.

On December 17, 1981, Wife was abducted by one Michael Hahn (hereinafter Hahn) by force, physical beatings, and threat of physical harm and taken to Arizona, where, on December 20, 1981, against her will and as the result of coercion, physical beatings, intimidation and threats upon the safety of her family, Wife went through a marriage ceremony with Hahn. Wife and Hahn returned to her residence in California where for two months she was "virtually held captive" by Hahn. On February 22, 1982, she managed to leave her residence, contact an attorney and obtain restraining orders removing Hahn from the home. Through her attorney, she obtained, on March 16, 1982, a judgment in Los Angeles Superior Court annulling her marriage to Hahn on the ground the marriage was obtained by force (Civ.Code, § 4425, subd. (e)). ² No criminal charges were filed against Hahn despite police reports made by Wife. ³

Meanwhile, however, commencing January 1, 1982, Husband ceased making his support payments, contending that his duty of spousal support was terminated by Wife's remarriage, pursuant to Civil Code section 4801, subdivision (b). ⁴

On December 15, 1982, Wife petitioned the trial court for an order reinstating spousal support, contending that she had committed no voluntary act which would terminate her support rights. The trial court refused to entertain Wife's petition, holding that Husband's duty to pay spousal support was terminated by Wife's remarriage and that the court would have no authority to reinstate support. The court apparently relied upon a line of cases holding that the subsequent annulment of a voidable remarriage does not reinstate a prior spouse's duty of paying spousal support.

We agree with Wife that these authorities are not controlling because they do not involve a remarriage obtained by force. Their reasoning presupposes a voluntary decision by the wife to remarry, to forego spousal support from the prior husband and to rely instead on support from the new husband. This case is unique in that the remarriage allegedly occurred wholly by force. If Wife can prove these allegations, there are circumstances under which the court could reinstate spousal support, and therefore the matter will be reversed for further proceedings.

DISCUSSION

There are only a few California cases involving whether the annulment of a subsequent remarriage can revive the obligation of a prior spouse to pay spousal support. With one exception they do not discuss a remarriage obtained by force, and they are distinguishable from the present case because each involved a voluntary decision by the supported spouse to remarry. Nothing in these cases compels the conclusion that spousal support could not be reinstated after an annulment of a remarriage obtained by force.

The leading California case is Sefton v. Sefton (1955) 45 Cal.2d 872, 291 P.2d 439. One week after her remarriage, the wife obtained an annulment on the ground that the remarriage was induced by fraud. (See Civ.Code, § 4425, subd. (d).) She sought to enforce alimony from her previous husband although their property settlement agreement, like former Civil Code section 139 (now Civ.Code, § 4801, subd. (b)), provided that support would terminate on remarriage. She argued that because her remarriage had been annulled it should be considered erased and the annulment to "relate back" so that, in effect, she never remarried and never lost her entitlement to alimony. (Sefton v. Sefton, supra, 45 Cal.2d at pp. 874-875, 291 P.2d 439.)

The Supreme Court rejected the wife's abstract theoretical approach. The court said the doctrine of relation back was a mere legal fiction and that the proper purpose of inquiry was to do substantial justice between the parties and to conform to sound policy. (Id., at p. 875, 291 P.2d 439.) The court held that the rights of the first husband must also be considered and that in the circumstances of that particular case it would not be fair to reinstate his prior obligation to pay spousal support. Because it is a Supreme Court opinion and the leading California case, we quote the court's reasoning in full: "By the celebration of marriage she held herself out as having remarried. The defendant was entitled to rely upon her apparent marital status after the ceremony. If Mrs. Sefton's new marriage was subject to annulment for fraud as provided for in subdivision four of section 82 of the Civil Code, or for the incapacity of her new husband to enter upon the marriage state as provided for in subdivision six, or for any reason stated in subdivisions one, three and five of that section, the marriage would be voidable only. Redress by way of annulment might never be sought by the offended party and the marital status might thus continue indefinitely. The causes for annulment thus provided by statute are ordinarily known to or concern only the individual contracting parties. The divorced spouse, the defendant here, may never know of the circumstances which make his former wife's new marriage voidable. Certainly knowledge of such voidability may not be imputed to him. After the ceremony took place he could properly assume, in accordance with section 139 and the property settlement agreement, that his obligation to pay alimony had ceased. He was then entitled to recommit his assets previously chargeable to alimony to other purposes. Under such circumstances, it would be improper to reinstate his alimony obligation. While it is true that both the plaintiff and defendant may be deemed to be innocent parties, it accords with the policy of the law to look less favorably upon the more active of the two innocent parties when by reason of such activity a loss is sustained as the result of the misconduct of a stranger. Here it is clear that Mrs. Sefton was the active party who brought herself and the defendant into their present situation. Accordingly, it is she who should assume the responsibility for it." (45 Cal.2d at pp. 876-877, 291 P.2d 439, emphasis added.)

Thus at both the beginning and the conclusion of its statement, the Supreme Court emphasized that the wife voluntarily remarried and that even if she had been innocently duped into remarriage, she "was the active party who brought herself and the defendant into their present situation. Accordingly, it is she who should assume the responsibility for it." It was in that context that the court presumed reliance by the first husband rather than treating reliance as a question of fact to be proved in the individual case. (Id., at p. 876, 291 P.2d 439. See id., at p. 881, 291 P.2d 439 (dis. opn.); Beckett v. Beckett (1969) 272 Cal.App.2d 70, 73, 77 Cal.Rptr. 134.) A commentator has noted, "Since (as the dissent pointed out) the court did not require proof of actual reliance, this seems to be a form of 'quasi-estoppel.' " (Note (1956) 44 Cal.L.Rev. 788, 790, fn. 12.)

Similar reasoning was expressed in Berkely v. Berkely (1969) 269 Cal.App.2d 872, 874-875, 75 Cal.Rptr. 294. In Berkely the remarriage was bigamous and "void" rather than "voidable." (Compare Civ.Code, § 4401 with Civ.Code, § 4425.) The wife argued that Sefton was not controlling because Sefton involved a voidable marriage, and that a stronger case could be made for the relation back theory in the case of a void marriage. The Berkely court also rejected a doctrinaire approach and looked instead to the policies mentioned in Sefton. Agreeing with cases from other jurisdictions which reject the notion that the result should depend upon whether the remarriage was statutorily "void" or "voidable," the Berkely court concluded: "[T]hese courts have treated a divorcee as a responsible person who must be held to her decision, presumably relied upon by others, to terminate her right to support from a former husband." (Berkely v. Berkely, supra, at p. 875, 75 Cal.Rptr. 294.) Berkely was followed on similar facts in Fry v. Fry (1970) 5 Cal.App.3d 169, 171-172, 85 Cal.Rptr. 126.

These California cases do not hold that there are no circumstances under which spousal support could be reinstated following the annulment of a remarriage. They eschew a theoretical or absolutist approach, but rather weigh the equities and policies involved, and conclude that since ordinarily the remarrying spouse has voluntarily chosen to remarry and to rely on the second husband for support, the first husband is freed from responsibility. Nothing in these cases appears to contemplate the unusual circumstances alleged in this case where the remarrying spouse was not active or responsible for the remarriage. ⁵

The trial court may have felt bound by Husted v. Husted (1963...