Wendell v. Wendell

• Decision Date: 23 June 1952
• Citation: 245 P.2d 342,111 Cal.App.2d 899
• Parties: WENDELL v. WENDELL et ux. Civ. 15096.
• Court: California Court of Appeals Court of Appeals

Page 342

245 P.2d 342

111 Cal.App.2d 899

WENDELL v. WENDELL et ux.

Civ. 15096.

District Court of Appeal, First District, Division 1, California.

June 23, 1952.

Rehearing Denied July 23, 1952.

Hearing Denied Aug. 21, 1952.

Philip Gordon, Los Angeles, for appellant.

Morris Oppenheim, San Francisco, for respondent.

PETERS, Presiding Justice.

By this complaint filed on October 31, 1949, plaintiff, Mollie Wendell, first wife of Abraham Wendell, seeks to attack and have set aside, on the ground of fraud, a divorce secured by Abraham in 1910, even though both parties thereafter remarried, Abraham in 1914, and Mollie in 1915. The trial court held, among other things, that, under the circumstances, Mollie was estopped from challenging the decree. Mollie appeals. There is no merit to this appeal.

Mollie was born in Poland about 1880. She and Abraham were married in England in 1898. Thereafter, Abraham migrated to New York City where he was joined by Mollie in 1902 or 1903. Thereafter, the parties lived together at various places in New York City and Brooklyn. They had three children.

Mollie testified that Abraham deserted her in 1908 or 1909, leaving her without funds. She also testified that thereafter the two corresponded and that she kept him informed of her address. This correspondence was in Yiddish.

In 1910, Abraham, in San Francisco, obtained an interlocutory decree of divorce upon the alleged ground of Mollie's desertion. The affidavits for publication of summons and mailing in that proceeding gave the then address of Mollie as '176 East Broadway' in New York City. That is a non-existent address. Mollie did not have any actual knowledge of the divorce action during its pendency. Whether this false address was given fraudulently or as a result of mistake does not clearly appear. In either event, the divorce decree, when secured, was subject to being set aside as having been secured on false affidavits as to residence. Rivieccio v. Bothan, 27 Cal.2d 621, 165 P.2d 677; Parsons v. Weis, 144 Cal. 410, 77 P. 1007; Wells v. Zenz, 83 Cal.App. 137, 256 P. 484; Aldrich v. Aldrich, 203 Cal. 433, 264 P. 754. Extrinsic fraud that deprives the adversary of fair notice of a hearing may exist even though such was accomplished by mistake. Actual fraud is not required. Antonsen v. Pacific Container Co., 48 Cal.App.2d 535, 120 P.2d 148; Rogers v. Mulkey, 63 Cal.App.2d 567, 147 P.2d 62; Chung Gee v. Quan Wing, 103 Cal.App.2d 19, 229 P.2d 50; Wells v. Zenz, 83 Cal.App. 137, 256 P. 484. Thus, this divorce, when secured, was subject to being set side because of this fraud.

Mollie testified that she did not learn of the divorce until 1949, and also testified that until then she did not even know of the existence of divorce as an institution. She explained this lack of knowledge by testimony that she cannot read or write, that she is an immigrant, and that she has always lived where the neighbors spoke Yiddish. If this testimony were uncontradicted, and had it been believed by the trial court, it would have warranted, under the authorities cited above, setting the divorce decree aside. But this testimony is not uncontradicted, and was not believed by the trial court.

The record shows that Abraham married his present wife, Minnie, in 1914. Mollie married a Charles Miller in 1915, and admittedly lived with him as his wife until his death in 1923. Mollie attempted to explain her remarriage on the theory that she did not know of Abraham's divorce, but simply believed that because Abraham had remarried she could do likewise.

There is substantial, ample and credible testimony, by many witnesses, that Mollie knew of Abraham's remarriage in 1914, and at that time knew of the divorce. The trial court found that ever since 1914 'plaintiff had knowledge that defendant Abraham Wendell had obtained a decree of divorce from plaintiff; and in this behalf the Court further finds that subsequent to the entry of the said final decree of divorce, plaintiff, well knowing that she, the said plaintiff, and the defendant, Abraham Wendell, were divorced, and relying thereon and ratifying the final decree aforesaid, did during the year 1915 marry one Charles Miller in the City of New York, State of New York; and the Court further finds that during the year 1914 at the said City of New York, State of New York, plaintiff stated to defendant Abraham Wendell, that he, the said defendant Abraham Wendell, ought to have a wife; and the Court finds that plain...