Union Bank & Trust Co. v. Gordon

• Decision Date: 13 March 1953
• Citation: 254 P.2d 644,116 Cal.App.2d 681
• Court: California Court of Appeals Court of Appeals
• Parties: UNION BANK & TRUST CO. et al. v. GORDON. Civ. 19231.

Page 644

254 P.2d 644

116 Cal.App.2d 681

UNION BANK & TRUST CO. et al. v. GORDON.

Civ. 19231.

District Court of Appeal, Second District, Division 3, California.

March 13, 1953.

Hearing Denied May 7, 1953.

Stahlman & Cooper, Loeb & Loeb, Grant B. Cooper, Harry L. Gershon and Herman F. Selvin, Los Angeles, for appellants.

Kenny & Morris, Robert W. Kenny, Los Angeles, for respondents.

VALLEE, Justice.

Plaintiff, as special administrator of the estate of Leo Gordon, sued Elsie Gordon to quiet title to various parcels of realty. Elsie Gordon answered and filed a cross-complaint, naming Sara Gordon as cross-defendant, in which she prayed that title be quieted in her. Sara Gordon answered the cross-complaint. The judgment decreed that Sara Gordon, subject to administration of the estate of Leo Gordon, and Elsie Gordon, is each the owner of an undivided half interest in the property. Elsie Gordon moved the court to vacate the judgment and to have another and different judgment entered. The motion was denied. Elsie Gordon appeals from the judgment and from the order denying her motion.

The facts which are undisputed are these:

1. December 21, 1921--Leo Gordon and Sara Gordon were married in New York. One child was born to them, Lucille.

2. June 3, 1927--Sara obtained a decree of separate maintenance against Leo in New York.

3. March 26, 1928--Leo moved to Los Angeles where he was domiciled at all times until his death.

4. May 31, 1929--Leo sued Sara for divorce in Nevada. Sara was served by publication in Nevada and personally served in New York, but did not answer or appear in the action. Sara was never in Nevada.

5. July 22, 1929--A final decree of divorce was granted Leo in the Nevada action.

6. July 29, 1929--Leo married Elsie Gordon in California. At the time of their marriage Elsie knew that Leo had been divorced from Sara in the manner described above. Leo and Elsie lived together in California as man and wife until Leo's death. One child was born to them, Arlene.

7. September 6, 1936--Sara married Milton Lewis in New York. Within two years of the marriage, Elsie learned of it. Elsie testified that thereafter, in reliance on the foregoing facts and the failure of Sara to challenge the validity of the Nevada decree, she continued to cohabit with Leo as his wife and to work with him in their business until his death. She also testified she would have done none of these things had Sara at any time successfully challenged the validity of the Nevada decree prior to Leo's death.

8. November 14, 1939--Leo and Elsie were without funds or assets.

9. Between August 29, 1947, and July 31, 1949--The property which is the subject of this litigation was purchased at various times during this period by Leo and Elsie solely with funds accumulated by them through their joint efforts after November 14, 1939. The property was conveyed to and intended to be held by them in joint tenancy, and was held by them as joint tenants until Leo's death.

10. October 17, 1949--Sara obtained a decree of the Supreme Court of New York annulling her marriage to Milton. The bill, filed by Sara, alleged that she and Milton 'were duly married' in New York on September 6, 1936; that their marriage was the second marriage for both of them; and that Milton had induced her to marry him by fraud and misrepresentation as to his financial means to support her and Lucille, the daughter of Sara and Leo. The New York court found that Sara and Milton 'were duly married' on September 6, 1936, in New York and that said marriage was the second marriage for both of them. The decree annulled the marriage on the alleged ground of fraud.

11. May 9, 1950--Leo died in the county of Los Angeles. He left a will dated November 21, 1943, which was admitted to probate on January 5, 1951, in which he bequeathed and devised all of his property, one-half to Elsie, and one- fourth each to Lucille and Arlene. Plaintiff was appointed special administrator of the estate.

The court found that; At all times since December 21, 1921, Leo was the lawful wedded husband of Sara; the marriage of Leo and Elsie was void; Elsie never was the lawful wedded wife of Leo; the Nevada decree obtained by Leo was void; Sara is not estopped or barred by laches to assert her claim to the property involved by reason of the invalidity of the Nevada decree; the property was purchased by Leo and Sara during their marriage solely out of their community property; Leo, during his lifetime, conveyed an undivided half interest in the property to Elsie. The judgment decreed that Sara, subject to administration of Leo's estate, and Elsie, is each the owner and entitled to the possession of an undivided half interest in the property.

The contest is actually between Elsie and Sara. Elsie asserts, as ground for reversal, that on the undisputed facts Sara is estopped to attack or assert the invalidity of the Nevada decree, and that she (Elsie) is the owner of the property in its entirety. We have concluded her contention must be sustained.

It is axiomatic that one who is silent when he ought to speak cannot speak when he ought to be silent. See Code Civ.Proc. § 1962, subd. 3. It is established doctrine in this state that a spouse who remarries with knowledge of and in reliance on a decree of divorce secured by the other spouse, is estopped from contesting the validity of the decree. In the recent case of Wendell v. Wendell, 111 Cal.App.2d 899, at page 902, 245 P.2d 342, at page 344, the court said: 'The law is well settled in this state that one who remarries with knowledge of and in reliance on a divorce secured by the other spouse, is estopped to deny the validity of the divorce. Bruguiere v. Bruguiere, 172 Cal. 199, 155 P. 988 [Ann.Cas.1917E, 122]; Kelsey v. Miller, 203 Cal. 61, 263 P. 200; In re Kyle, 77 Cal.App.2d 634, 176 P.2d 96; Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d 1, 20 A.L.R.2d 1152.' ¹ Bruguiere v. Bruguiere, 172 Cal. 199, 155 P. 988, held that a wife, divorced by her husband in a court of a state other than that of his residence, was estopped from attacking the decree because of her subsequent marriage to another. The rule was reaffirmed in Kelsey v. Miller, 203 Cal. 61, 86-87, 263 P. 200. See also Hensgen v. Silberman, 87 Cal.App.2d 668, 197 P.2d 356; In re Adoption of D. S., 107 Cal.App.2d 211, 214, 236 [116 Cal.App.2d 685] P.2d 821; Appeal of Richardson, 132 Pa. 292, 19 A. 82; Woodson v. Colored Grand Lodge of K. of H., 97 Miss. 210, 52 So. 457; Harper v. Fears, 168 Miss. 505, 151 So. 745, 93 A.L.R. 341; Joy v. Miles, 190 Miss. 255, 199 So. 771; Moore v. Robinson, 139 S.C. 393, 137 S.E. 697; Annotation 28 A.L.R. 1126.

The accepted rule is declared in the Restatement as follows: 'The validity of a divorce decree cannot be questioned in a proceeding concerning any right or other interest arising out of the marital relation, either by a spouse who has obtained such decree of divorce from a court which had no jurisdiction, or by a spouse who takes advantage of such decree by remarrying.

'Comment: * * * a spouse who treats as valid a decree of divorce by remarrying is precluded from subsequently disputing the validity of the decree although he neither obtained the decree nor was personally before the court which rendered it. Illustrations: 1. A obtains a divorce in a state where neither he nor his wife is domiciled. B, his wife, knowing that the decree has been granted, marries another man. A dies. B is barred from claiming a widow's share in A's estate.' (Restat. Conflict of Laws, § 112.)

To refuse to permit Sara to contest the validity of the Nevada decree does not mean that the courts of this state recognize the Nevada decree as valid, but only that it is not open to her in this action to say it is void. Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19; Bernheimer v. Bernheimer, 103 Cal.App.2d 643, 647, 230 P.2d 17.

Sara urges that Civil Code section 150.1, enacted in 1949, Stat.1949, c. 1292, p. 2275, prevents application of the estoppel rule. Section 150.1 reads: 'A divorce obtained in another jurisdiction shall be of no force or effect in this State, if both parties to the marriage were domiciled in this State at the time the proceeding for the divorce was commenced.' The section prohibits the giving of force or effect to the divorce. In holding that a spouse is estopped from asserting that a decree of divorce is invalid a court does not give any force or effect to the decree. It assumes the decree is invalid and of no force or effect. It merely says that because of the particular circumstances the spouse is precluded from asserting its invalidity.

The doctrine of estoppel is not inconsistent with section 150.1. The section merely declares a rule of nonrecognition which has always existed in California. It has been invariably held that a foreign divorce decree procured on simulated residence has no force or effect in this state. Crouch v. Crouch, 28 Cal.2d 243, 250, 169 P.2d 897, and cases there cited. The rule of estoppel has never been considered by the courts of this state to be inconsistent with the rule that a foreign divorce decree obtained on simulated residence has no force or effect. In applying the rule of estoppel the courts have assumed that the decree was invalid and therefore of no force or effect. Harlan v. Harlan, 70 Cal.App.2d 657, 161 P.2d 490. We cannot hold that a mere statutory declaration of what had theretofore been a rule of decision is so inconsistent with the rule of estoppel as to preclude application of the latter rule.

Massachusetts and New Jersey have had nonrecognition statutes for many years. Notwithstanding those statutes, the courts of those states apply the rule of estoppel, when the circumstances are appropriate. Langewald v. Langewald, 234 Mass. 269, 125 N.E. 566, 39 A.L.R. 674, a libel by a wife for divorce, is in point. A statute of Massachusetts provided that if an inhabitant of that commonwealth went into another state...