Spellens v. Spellens

• Decision Date: 28 December 1956
• Citation: 305 P.2d 628
• Court: California Court of Appeals Court of Appeals
• Parties: Annelen SPELLENS, Plaintiff, Appellant and Respondent, v. Sol Carl SPELLENS, Defendant, Respondent and Appellant. * Civ. 19338, 20236, 20318, 20975, 20986, 20987, 21015.

Page 628

305 P.2d 628

Annelen SPELLENS, Plaintiff, Appellant and Respondent, v. Sol Carl SPELLENS, Defendant, Respondent and Appellant. *

Civ. 19338, 20236, 20318, 20975, 20986, 20987, 21015.

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

Dec. 28, 1956.

Rehearing Denied Jan. 21, 1957.

Hearing Granted Feb. 19, 1957.

Leonard Horwin and Richard I. M. Kelton, Beverly Hills, for appellant and respondent Annelen Spellens.

Pacht, Ross, Warne & Bernhard, Isaac Pacht, Stuart L. Kadison and Harvey M. Grossman, Los Angeles, for respondent and appellant Sol Carl Spellens.

FOX, Justice.

The nine appeals arising out of this litigation present a great variety of legal questions in the field of domestic relations as well as in certain other phases of the law.

I. Resume of the Facts.

Plaintiff (sometimes referred to as Annelen), married Robert Seymon in Germany in 1937. They came to America a year later. They had two children, born, respectively, in 1942 and 1947. Seymon was a traveling salesman with only a moderate income. It was necessary for Annelen to work, from time to time, as a dressmaker and seamstress to provide additional family support. Seymon declined to change to a type of employment which would permit him to spend more time at home with his family and increase his earnings. He assertedly associated with a girl friend and Annelen became involved with a married man. It appeals that during the last several years of their marriage the Seymons lived in a state of discord and unhappiness. Annelen had threatened on a number of occasions to divorce Seymon.

In October, 1950, defendant (also identified herein as Sol) told Annelen that he was in love with her and wished to marry her. She had known him as a family friend. He was foreign born, a man of substantial wealth, extensive business experience, and represented himself as having wide legal experience. He had been married and divorced twice and was the father of three children. He was approximately 69 years of age; Annelen was 35. Sol stated that he was aware of the unhappy state of affairs between her and her husband and of her husband's failure to adequately provide for his family. Sol told her she was entitled to a divorce and, if she would get a divorce and marry him, he would take care of her and her children and make her a partner in all of his property. Annelen advised her husband of Spellens' interest in her and the proposition he had made. She sought for some three months to have her husband improve his marital conduct, show her affection, provide a greater income, and thus save the marriage. Her efforts, however proved fruitless.

In January, 1951, Annelen decided she was going to divorce her husband and so informed Sol, who made arrangements for her to obtain an attorney, and provided her with funds therefor. She filed suit for divorce on grounds of extreme cruelty on February 21, 1951. After the action was filed, Spellens and Annelen conferred with Seymon regarding a property settlement. Spellens advised Annelen to waive her rights to any community property and all but nominal ($1 per month) alimony. She followed this advice. Spellens promised Annelen again that he would support the children as his own and provide them with an education and he would make her a partner in all of his property.

Annelen was granted an interlocutory decree of divorce on March 13, 1951. About that time Spellens represented to Annelen that upon the interlocutory divorce decree being granted, they could be legally married in Mexico and that such marriage would be valid everywhere. Spellens took Annelen to Mexico where he procured an attorney who advised her to the same effect. Four days after the interlocutory decree was granted, Spellens and Annelen returned to Mexico and interviewed the same attorney. Spellens showed the attorney Annelen's interlocutory decree of divorce. After examining the document, the attorney confirmed his previous advice that they could immediately enter into a legal marriage there which would be valid everywhere. Thereupon Sol and Annelen went through a marriage ceremony performed by the attorney. They immediately began living together as husband and wife, with Annelen's children as part of the family. In November, 1951, Annelen became pregnant and had a miscarriage in January, 1952.

During the period the parties lived together Sol was guilty of extreme cruelty toward plaintiff that caused here great mental anguish. In March, 1952, Sol suggested that they separate. When Annelen objected, Sol told her that he had been advised they were not legally married. Plaintiff then consulted counsel, telling him the facts concerning her relationship with Sol. She was advised that the validity of her marriage lay in the field of unsettled law, but that he thought he could establish its validity on the theory that Sol was estopped to deny its validity. The original complaint was thereupon filed on March 24, 1952.

The parties separated for a brief period after this action was commenced but soon went back together, and lived together as husband and wife until Sol moved out on September 22, 1952.

In her first amended complaint plaintiff sought, inter alia, a declaration that the marriage was valid and a decree for separate maintenance, or, in the alternative, if the court determined the marriage was invalid, damages because of Sol's fraudulent representations and promises, and an award of the 'community property' of the parties. ¹

At this state of the case, plaintiff sought support pendente lite, attorney's fees and costs. Her request was denied in its entirety. She appealed from the order. Plaintiff then moved for support pending the appeal, and for attorney's fees to prosecute the appeal, and for costs. The court denied her support but ordered defendant to pay counsel fees of $2,500 and the actual cost of reporter's and clerk's transcripts and printing of briefs. She has appealed from the order denying her support. Sol moved to vacate the order awarding attorney's fees and costs on appeal. His motion was denied. He then appealed from the order making the award and from the order denying his motion to vacate it.

In due course, the trial court determined that the parties were never legally married and that defendant was not estopped to deny that he is or ever had been married to plaintiff.

Thereupon plaintiff, with the court's permission, filed her second amended complaint. She alleged three causes of action: (1) for damages, both actual and punitive, for fraudulently inducing her to enter into a void marriage; (2) in the alternative, to enforce defendant's agreement that he would give her one-half of his property if she would marry him, and for an award to her of all the 'community property' the parties acquired while they lived together as husband and wife, i. e., from March 17, 1951, to September 22, 1952; and (3) as guardian ad litem of her two children, to recover damages based on defendant's promise to support and educate them. The trial court granted a nonsuit on plaintiff's causes of action for damages and to recover a one-half interest in defendant's property; also, on her suit on behalf of her children to recover for their support and education. Plaintiff challenges each of these rulings on this appeal. She also complains because the judgment did not provide for her support, attorney's fees and costs.

The court awarded plaintiff the entire quasi community property. Defendant's expense of $7,200 in maintaining plaintiff's two children from March 17, 1951 to September 22, 1952, was, however, deducted therefrom, leaving her a net of $10,052. Plaintiff attacks the ruling by which the expense of maintaining the children was charged against the quasi community property. Defendant, on the other hand, appeals from that portion of the judgment which awards plaintiff quasi community property accumulated after March 20, 1952, ² or, in any event, after May 29, 1952. ³

The facts with respect to Annelen's appeal from an order involving an item of costs and Sol's appeal from a judgment in a claim and delivery proceeding growing out of his and Annelen's affairs will be stated when we come to discuss the questions raised by those appeals.

The court found, inter alia, that Annelen believed and relied on Sol's promises and representations; that he intended that she should believe and rely on them; that she acted in good faith in going through the marriage ceremony and in living with Sol as husband and wife until September 22, 1952, and that up to that time she believed, in good faith, that they were legally married. The court further found that 'Spellens knew that he was not legally married to plaintiff and intended from the beginning that his marriage with plaintiff be invalid.'

II. Was Plaintiff Entitled to Support, Counsel Fees and Costs Pendente Lite?

'Fundamentally, as declared in Colbert v. Colbert, 1946, 28 Cal.2d 276, 279, 169 P.2d 633, 'The existence of the marriage is a jurisdictional prerequiste for the right of the court to order support, costs, and counsel fees pendente lite in an action for divorce or separate maintenance. [Citations.] And the invalidity of the marriage * * * may be shown at any time.' [Citation.]' Dietrich v. Dietrich, 41 Cal.2d 497, 502, 261 P.2d 269, 272. While the evidence to establish a disputed marriage need not be as complete and satisfactory upon an application for temporary support as that required on the trial of the issue Colbert v. Colbert, supra, 28 Cal.2d at page 280, 169 P.2d 633, the party seeking such relief, however, must make a reasonably plain case of the existence of the marriage. Dietrich v. Dietrich, supra, 41 Cal.2d at page 504, 261 P.2d 269; Bancroft v. Bancroft, 9 Cal.App.2d 464, 468, 50 P.2d 465; Hite v. Hite, 124 Cal. 389, 391-392, 57 P. 227, 45 L.R.A. 793; Carbone v. Superior Court, 18 Cal.2d 768, 772, 117 P.2d 872, 136 A.L.R. 1260. Measured by these principles, plaintiff...