Smith v. Smith
Decision Date | 21 January 1958 |
Citation | 320 P.2d 100,157 Cal.App.2d 46 |
Court | California Court of Appeals |
Parties | Miriam S. SMITH, Respondent, v. Robert William SMITH, Appellant. Civ. 5708. |
Dreizen & Corfman, Santa, Ana, for appellant.
M. A. Sturges, for respondent.
Plaintiff brought this action for divorce and defendant filed a cross-complaint for annulment. Prior to the marriage which is the subject of this litigation, plaintiff was the wife of Kenneth P. Schmidt, whom she married in 1937, and by whom she had two children. Late in 1950 Schmidt left plaintiff and within a short time defendant, who resided in Pasadena, was visiting plaintiff rather frequently at her home in Newport Beach. Early in 1951, defendant proposed marriage and on April 10, 1951, plaintiff filed a complaint for divorce against Schmidt. Plaintiff and defendant frequently discussed the pending divorce action and defendant advised plaintiff on certain matters concerning it. Schmidt filed an appearance by counsel in the divorce matter, stipulated that the case be heard as a default, and plaintiff was granted an interlocutory decree of divorce from Schmidt on April 23, 1951.
Meanwhile, rumors were circulating to the effect that Schmidt had divorced plaintiff in Mexico. Defendant told plaintiff that if such occurred, they could be married in Mexico before her California divorce decree became final; that he (defendant) had been married in Mexico before and was familiar with the legality of such marriages. On May 5, 1951, plaintiff and defendant were attending some boat races at Ensenada and were standing in a large group of people on the dock. In an adjacent group was plaintiff's 'former husband', accompanied by his 'new bride', receiving congratulations on their recent marriage. Defendant said to plaintiff: 'Since they have married down here, why don't we get married down here, it is silly to wait.' Defendant made similar suggestions many times before plaintiff decided to marry him. About a week after the incident just described, plaintiff and defendant were discussing a story which appeared in a Los Angeles daily newspaper on May 11, 1951, stating that Schmidt and Mrs. Mary Beesemyer had been married in Mexico City on April 29. Further investigation disclosed that on April 19, 1951, Schmidt had secured a decree of divorce from plaintiff in Mexico. Shortly after the discussion concerning the newspaper article, plaintiff consented to Marry defendant and on June 23, 1951, two months after plaintiff's interlocutory decree from Schmidt had been granted, the parties were married in Ensenada. Plaintiff and defendant continued to live together as husband and wife until the date of their separation on October 31, 1954, and this action was filed on November 12, 1954.
On the basis of these facts the trial court granted plaintiff an interlocutory decree of divorce, holding that both parties are estopped from setting up or asserting the invalidity of the Mexican divorce decree secured by plaintiff's former husband, and that defendant is estopped from setting up the defense of section 61 of the California Civil Code. The court also ordered a division of the community property, and awarded plaintiff alimony in the sum of $250 per month for one year commencing June 30, 1956. Defendant appeals from this judgment, contending: (1) That the ceremonial marriage of the parties was void from its inception; (2) That defendant should not be estopped from setting up the invalidity of the decree obtained by plaintiff's former husband or from setting up the defense of section 61 of the California Civil Code; (3) That since the marriage of the parties was void, there could be no community property and plaintiff is not entitled to a division of defendant's separate property; and (4) That the marriage being void, there could be no award of alimony.
It cannot seriously be disputed that the ceremonial marriage between these parties was void ab initio. The marriage two months after the entry of the interlocutory decree in plaintiff's action in California against Schmidt is expressly declared void from the beginning by section 61 of the Civil Code (Sullivan v. Sullivan, 219 Cal. 734, 736, 28 P.2d 914, and this result can be avoided only if Schmidt's Mexican decree from plaintiff is valid. It was established that Schmidt's domicile was in California at all times involved and that he never was a resident of Mexico. Also, it appears that plaintiff in this action was never served with any papers or documents in connection with Schmidt's action in Mexico. Hence, the Mexican court was without jurisdiction to grant the decree to Schmidt. Brill v. Brill, 38 Cal.App.2d 741,...
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