Weber v. Superior Court of Los Angeles County

• Court: United States State Supreme Court (California)
• Writing for the Court: TRAYNOR; GIBSON, C. J., and SCHAUER, SPENCE, McCOMB and PETERS, JJ., and TOBRINER
• Citation: 2 Cal.Rptr. 9,53 Cal.2d 403,348 P.2d 572
• 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.
• Decision Date: 19 January 1960

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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.

[53 Cal.2d 404] 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

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[348 P.2d 573] 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[53 Cal.2d 405] 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...