Proper v. Proper

CourtCalifornia Court of Appeals
Citation228 P.2d 62,102 Cal.App.2d 612
PartiesPROPER v. PROPER. Civ. 17716.
Decision Date05 March 1951

Harvey R. McKee, Robert P. Dockeray, Los Angeles, for appellant.

Walter H. Young, Los Angeles, for respondent.

WHITE, Presiding Justice.

Plaintiff and appellant brought an action for separate maintenance upon the ground of desertion. Defendant answered that he had secured a divorce in Reno, Nevada, in November of 1947, and further set forth acts of cruelty by plaintiff by way of recrimination. After trial before the court it was adjudged that the Nevada divorce obtained by defendant was based on a 'bona fide domicile' and is entitled to full faith and credit. Plaintiff has appealed from the judgment and from an order made subsequent thereto denying her application for support money, costs and attorney's fees pending the prosecution of her appeal from the judgment.

Appellant's main contention is that the finding of the trial court that respondent was a bona fide resident of Nevada at the time he instituted his divorce action is not supported by the evidence. It is urged that the evidence conclusively shows that he went to Nevada for the purpose of obtaining a divorce.

The parties were married in 1919. Respondent entered the army from Los Angeles in 1942. In May, 1947, he returned to the United States from Germany, and went directly to Reno, Nevada. In July, 1947, being still a member of the armed forces, he returned to Germany, having in the interim arranged for the filing and prosecution of the divorce action. In May, 1948, after obtaining his divorce in Nevada, he married a German woman and returned with her to the United States.

For the following reasons appellant contends that the judgment is against the evidence:

'1. Respondent and appellant were residents of and domiciled in the State of California, at the time respondent joined the Armed Forces.

'2. At the time respondent joined the Armed Forces he was a member, and had been for some time, of the Police Department of Los Angeles and at the time he joined the Armed Forces he did not resign his position and at no time thereafter did he resign his position.

'3. Respondent returned to the United States on May 1, 1947, and on May 3, 1947, he arrived in Reno, Nevada, not having been sent there by any direct order of the Armed Forces.

'4. Within a day or two after arriving in Reno he went to an attorney and directed the commencement of divorce proceedings against the appellant.

'5. He left Reno not later than the first week of July, 1947, and returned to Germany in the Armed Forces. He was not present in Reno at the time of the trial of his divorce action and had made arrangements with his Nevada attorneys to proceed with the action during his absence by having his deposition taken while he was still in Reno and also by having another deposition taken in Munich.

'6. On the basis of respondent's testimony, he was the father of a child born to Barbara Bader in Germany prior to the time that he returned to the United States and went to Nevada to secure his divorce. Shortly after his return to Germany and on May 4, 1948, he married Barbara Bader and with her and their child returned to the United States on May 30, 1948.

'7. On his way from the East Coast to Los Angeles he spent two or three days in Nevada and almost immediately upon his return to Los Angeles, resumed his duties with the Los Angeles Police Department, a position which he had never resigned.'

It is appellant's position that these facts and circumstances point to but one conclusion--that respondent never acquired nor intended to acquire a bona fide residence in Nevada, and that his unsupported statements of a different intention are not sufficient to overcome the effect of the facts and circumstances themselves. The record, however, contains other evidence supporting his declared intention which, in our view, brings into play the well-established rule that 'The power of an appellate court ends with respect to the facts when it determines that there is substantial evidence which supports the trial court's findings.' De Young v. De Young, 27 Cal.2d 521, 526 165 P.2d 457, 459, and cases there cited.

It appears from respondent's testimony that after entering the armed services in 1942 he went to Reno for several days and observed ski resort facilities and noted the possibilities of that type of business in that area. In 1943 he again went to Reno and considered the possibility of making it his home and establishing a sport center there. In 1943 he was transferred to Germany and was stationed at a famous ski resort area, where he and some brother officers conceived a plan to establish a ski resort in the Reno area when they should be released from the service.

In May 1947, respondent was returned to the United States on 'terminal leave'. The policy of the Army at that time was that a man who had served three years in the European Theater would not be reassigned thereto until he had spent six months in the United States. At the time respondent arrived in New York he was entitled to 120 days leave of absence, for which he applied, indicated to the Army that he was going to Reno, and actually went to Reno in pursuance of the plan to take preliminary steps towards establishing a ski resort. Upon his arrival in Reno he applied for release from military duty, and also applied for a reserve officer's training assignment to the University of Reno in the event he was not immediately released from the service.

After respondent had been in Reno for a few days, he consulted an attorney with a view to obtaining a divorce. During his stay, he visited the ski area almost every day, examined sites for ski resorts, consulted various people concerning the area, and had correspondence with his associates in Germany with reference to obtaining ski equipment. He testified that when he went to Reno, Nevada it was with the intention of making that area his permanent home.

On July 10, 1947, respondent had not been released from military service nor did he get his second choice of R. O. T. C. training in Nevada, but was reassigned to the European Theater. He thereupon made arrangements with his attorneys in Nevada to proceed with depositions and complete the divorce action. He returned to the United States in May, 1948, remained in New York for a week, and then went to Nevada for the purpose of settling there, but upon arriving at Reno found the situation had changed economically, and he and his associates concluded that they had missed their opportunity in the ski resort business and abandoned the project. Respondent thereupon came to Los Angeles and resumed his employment as a police officer.

From the time of respondent's induction into the army in 1942 until his return to Los Angeles in 1948, he was actually out of the State of California except for two short occasions when he was in California on military business. During this period he did not vote in California, apply for an absentee ballot, own any real estate in Los Angeles or have any business or commercial venture there. He was never stationed in Nevada by military...

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5 cases
  • Naylor v. Naylor, 245
    • United States
    • Court of Appeals of Maryland
    • July 3, 1958
    ...opened bank account; installed telephone; sought business investment; never returned to original domicile]; Proper v. Proper, 1951, 102 Cal.App.2d 612, 228 P.2d 62 [planned to engage in business activity in new residence before leaving original domicile]; Peff v. Peff, 1949, 2 N.J. 513, 67 ......
  • Lewis v. Lewis
    • United States
    • United States State Supreme Court (California)
    • November 19, 1957
    ...husband. See also De Young v. De Young, 27 Cal.2d 521, 165 P.2d 457; Cardinale v. Cardinale, 8 Cal.2d 762, 68 P.2d 351; Proper v. Proper, 102 Cal.App.2d 612, 228 P.2d 62; Coleman v. Coleman, 92 Cal.App. 2d 312, 206 P.2d 1093; Patterson v. Patterson, 82 Cal.App.2d 838, 187 P.2d 113; Calhoun ......
  • Marriage of Leff, In re
    • United States
    • California Court of Appeals
    • May 17, 1972
    ...of Mosier,246 Cal.App.2d 164, 169, 54 Cal.Rptr. 447; Herczog v. Herczog, 186 Cal.App.2d 318, 322, 9 Cal.Rptr. 5; Proper v. Proper, 102 Cal.App.2d 612, 615, 228 P.2d 62. Bona fide domicile in a sister state necessary to support a foreign divorce decree is a question of fact. (Huntington v. H......
  • Bruce v. Bruce
    • United States
    • California Court of Appeals
    • December 3, 1953
    ...made application to the trial court for such an allowance. Newlands v. Superior Court, 171 Cal. 741, 154 P. 829; Proper v. Proper, 102 Cal.App.2d 612, 617-619, 228 P.2d 62. SHINN, P. J., and PARKER WOOD, J., concur. ...
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