Weber v. Superior Court of Los Angeles County

• Decision Date: 19 January 1960
• Citation: 2 Cal.Rptr. 9,53 Cal.2d 403,348 P.2d 572
• Court: California Supreme Court
• Parties: , 348 P.2d 572 Marie WEBER, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Paul D. Weber, Real Party in Interest. L. A. 25583.

Page 9

2 Cal.Rptr. 9

53 Cal.2d 403, 348 P.2d 572

Marie WEBER, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Paul D. Weber, Real Party in Interest.

L. A. 25583.

Supreme Court of California, In Bank.

Jan. 19, 1960.

Newell & Chester, Robert M. Newell and Theodore A. Chester, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, William E. Lamoreaux, Asst. County Counsel, Edward A. Nugent and David Bernard, Deputy County Counsel, for respondent.

Josyln & Josyln, J. W. Joslyn and R. B. Joslyn, Pasadena, for real party in interest.

TRAYNOR, Justice.

Petitioner seeks a writ of mandate compelling respondent superior court to hear and determine on the merits an order to show cause why she should not receive temporary alimony, costs, and fees in her action for divorce against the real party in interest.

Petitioner (hereinafter referred to as plaintiff) and the real party in interest (hereinafter referred to as defendant) were married in Los Angeles on October 4, 1940 and resided there until early in 1950. At that time they moved to Morocco, North Africa, where defendant was employed by the United States Corps of Engineers. About 1952 at defendant's request plaintiff returned to their home in Los Angeles. Thereafter defendant unsuccessfully attempted to procure a divorce from plaintiff in the Consular Court of the United States in Morocco. In 1956 the returned to the United States and took up residence in Reno, Nevada. He filed an action for divorce against plaintiff in that state, serving her by publication. The Nevada court granted an ex parte divorce to defendant on August 16, 1956. Defendant then proceeded to Los Angeles, where he married his present wife and where they now reside.

Plaintiff filed her action for divorce and permanent alimony in respondent court on March 17, 1959. She obtained an order to show cause why she should not be awarded temporary alimony, costs, and fees. At the hearing on this order, defendant objected to the introduction of any evidence as to plaintiff's need for the award or his ability to pay it on the ground that his ex parte divorce constituted a complete defense to plaintiff's motion. Respondent court sustained defendant's objection and entered its minute order as follows:

'For the purpose of this hearing, there is found to be a valid decree of divorce between the parties and there is no present marriage between the parties hereto. The Court is without jurisdiction to grant the relief prayed for.'

Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295, establishes that an ex parte divorce decree, even if valid, cannot deprive a California court of jurisdiction to enforce support rights held under the laws of California at the time of the divorce. Defendant contends, however, that even if respondent court has jurisdiction under the Hudson case to award plaintiff permanent alimony, its jurisdiction to award her temporary alimony and attorney's fees nevertheless depends on an existing marriage under Civil Code, §§ 137.2 and 137.3. This contention was raised and expressly answered adversely to defendant in the Hudson case. Hudson v. Hudson, supra, 52 Cal.2d 735, 344 P.2d 295. Our conclusion in that case that '(s)ince plaintiff may maintain her action for permanent alimony without attacking defendant's Idaho decree, it follows that she may receive temporary alimony, costs, and fees to enable her to continue the suit when she has shown that she needs such relief and that defendant has the ability to provide such assistance' Hudson v. Hudson, supra, 52 Cal.2d 735, 344 P.2d at page 301, also governs here.

Defendant contends, however, that this case is distinguishable from the Hudson case because plaintiff filed her action for divorce and permanent alimony nearly three years after defendant's Nevada decree became final. In the Hudson case, the wife filed her action for divorce approximately one month before her husband filed his ex parte action in Idaho. Defendant urges that, although...