Crouch v. Crouch

169 P.2d 897, 28 Cal. 2d 243, 1946 Cal. LEXIS 207

• Court: California Supreme Court
• Decided: May 24, 1946
• Docket: L. A. 18870
• Status: Published

Opinions

EDMONDS, J.

In a suit for divorce and for a share of the community property, the wife’s causes of action were held to be barred by a final decree of divorce rendered in favor of her husband in the State of Nevada. But the court found, as a fact, that at no time while the husband was in Nevada did he have any intention of becoming a resident of that state except for the purpose of obtaining a divorce, and the question for decision concerns the effect of the foreign decree under such circumstances.

The appeal is upon the judgment roll. In the complaint filed by Edith M. Crouch in March, 1942, she alleged that the separation between herself and her husband Ben E. Crouch, occurred in 1938; that he deserted her and is now living in this state. She also pleaded a cause of action upon the ground of cruelty, one upon the ground of adultery, and another in which she asserted that he had failed to provide for her. Mrs. Crouch also sought to enjoin the defendants from disposing of any community property in which she had any interest. Within a month before the complaint was filed, she alleged, her husband went to Nevada, “simulating a purported residence” there for the purpose of obtaining a divorce. She prayed for a divorce, an accounting of the community property, alimony, and attorney’s fees. By answer the husband denied all of the wife’s charges and pleaded as a defense to each cause of action that at the time of the filing of her complaint he was, and for some time prior thereto had been, a resident of Nevada where on May 4, 1942, he had obtained a decree of divorce from her.

Upon the issues framed by these pleadings the court found that each of the appellant’s causes of action is barred by the decree of divorce obtained by Crouch in Nevada. But the court also found that at the time when Crouch filed his complaint and at the time of the rendition of judgment, he was not a bona fide resident of Nevada but a resident of California. Crouch entered Nevada, the findings continue, “solely for the purpose of obtaining a divorce from the plaintiff herein [and] ... in so doing . . . [he abandoned his wife] without cause.” He remained in Nevada “just long enough to obtain an apparent residence” there and then filed his action for divorce, obtained the decree in his favor, and returned to California. And, continued the trial court, “. . . at no time while defendant was in the state of Nevada did he have any intention of becoming a resident thereof save and except for the sole purpose of obtaining a divorce from this plaintiff.” According to the findings, in the Nevada action there was “constructive service” upon Mrs. Crouch. At the trial of the present suit, her counsel admitted that there was no community property and the cause of action for a part of it was abandoned. By the determination that the decree of divorce obtained by Crouch in Nevada bars the present action, there was no occasion for a finding concerning alimony, but, so far as the record shows, Mrs. Crouch is continuing to assert her right to support.

The Nevada decree recites that “the defendant . . . [was] personally served with summons in the City of Glendale, County of Los Angeles, State of California,” and, contrary to the trial court’s finding, that “the plaintiff is a bona fide resident of the County of Washoe, State of Nevada.” However, the findings of each court state that Mrs. Crouch did not appear in the Nevada action.

Under the findings of fact of the trial court, says the appellant, the decisions of the Supreme Court of the United States do not compel a holding that the divorce decree obtained in Nevada bars the present action in California. The principles laid down by that court, Mrs. Crouch asserts, have no effect upon the rule of decision in this state that the judgment of a sister state may be collaterally attacked for extrinsic fraud. In support of the determination in his favor, Crouch declares that, as Mrs. Crouch was personally served with a copy of the complaint and of the summons in the foreign action, the courts of California must give full faith and credit to the Nevada decree and are required to recognize it as controlling the rights of the parties in the present litigation.

In Williams v. North Carolina, 317 U.S. 287 [63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273], the defendants were convicted of bigamy in the state court. At the time they went to Nevada to obtain divorces from their respective spouses, they were residents of North Carolina. After satisfying the residence requirement under the Nevada statute, each of them obtained a divorce. They were married in Nevada shortly after the divorces were granted and then returned to North Carolina where they lived together as husband and wife. There they were indicted for bigamy and found guilty by a jury. The state Supreme Court sustained the convictions. (State v. Williams, 220 N.C. 445 [17 S.E.2d 769].)

The judgments of conviction were reversed by the Supreme Court of the United States, which overruled Haddock v. Haddock, 201 U.S. 562 [26 S.Ct. 525, 50 L.Ed. 867]. If either spouse is domiciled in a state where a divorce is granted upon constructive service, the court held, the divorce must be recognized in other states. But it was careful to point out that the decision did not apply to a situation such as that shown by the record now before this court, saying: “In the first place, we repeat that in this case we must assume that petitioners had a bona fide domicil in Nevada, not that the Nevada domicil was a sham. We thus have no question on the present record whether a divorce decree granted by the courts of one state to a resident, as distinguished from a domiciliary, is entitled to full faith and credit in another state. Nor do we reach here the question as to the power of North Carolina to refuse full faith and credit to Nevada divorce decrees because, contrary to the findings of the Nevada court, North Carolina finds that no bona fide domicil was acquired in Nevada. ’’ (317 U.S. 302.) The decision consistently has been applied in accordance with this reservation. (See: Williams v. North Carolina, 325 U.S. 226 [65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366]; Marshall v. Marshall, 69 Cal.App.2d 20 [157 P.2d 854] ; Davis v. Davis, -Ohio App.- [57 N.E.2d 703] ; Wilkes v. Wilkes, 245 Ala. 54 [16 So.2d 15] ; Atkins v. Atkins, 386 Ill. 345 [54 N.E.2d 488]; Wolff v. Wolff, 134 N.J.Eq. 8 [34 A.2d 150] ; Melnick v. Melnick, 154 Pa. Super.Ct. 481 [36 A.2d 235]; Koscove v. Koscove (1945), 113 Colo. 317 [156 P.2d 696]; Kraunz v. Kraunz, 51 N.Y.S.2d 433; Coe v. Coe (1944), 316 Mass. 423 [55 N.E.2d 702] ; Bowditch v. Bowditch, 314 Mass. 410 [50 N.E.2d 65]; Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455 [35 A.2d 335]; see cases cited in 157 A.L.R. 1399, supplementing annotation in 143 A.L.R. 1294.)

In a second ease arising out of the same divorces (Williams v. North Carolina, 325 U.S. 226 [65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366]), the question was directly raised whether a Nevada decree must be given full faith and credit when North Carolina found that no Iona fide domicil had been established in Nevada. The court ruled that a judgment of one state must be given full faith and credit in another state only if the court that rendered the original judgment had jurisdiction to do so; that North Carolina’s determination that the libellants did not establish a bona fide domicil in Nevada sufficient to give its courts jurisdiction to render a divorce decree was warranted by the evidence; and that, under such circumstances, North Carolina was not bound to give full faith and credit to the Nevada decree. The judgments of conviction were affirmed.

In Esenwein v. Pennsylvania, 325 U.S. 279 [65 S.Ct. 1118, 89 L.Ed. 1608, 157 A.L.R. 1396], William F. Esenwein sought relief from an order requiring him to support May H. Esenwein, whom he had married some years before. Twice the petitioner had sought a divorce in Pennsylvania and each time failed to obtain a dissolution of his marriage. Later he went to Nevada and obtained a divorce after the minimum six weeks residence period. Shortly thereafter he left Nevada and became a resident of Ohio.

Petitioner then filed an application in Pennsylvania for relief from the support order. The application was denied upon the ground that petitioner did not have a bona fide domicil in Nevada when he obtained his decree of divorce. (348 Pa. 455 [35 A.2d 335].) The United States Supreme Court, upon certiorari, affirmed the judgment, declaring that the state courts “were warranted in finding that the respondent sustained her burden of impeaching the foundation of the Nevada decree on the jurisdictional prerequisite of iona fide domicil.” (Esenwein v. Pennsylvania, 325 U.S. 279 [65 S.Ct. 1118, 1119, 89 L.Ed. 1608, 157 A.L.R. 1396].)

Neither the second Williams ease, supra, nor the Esenwein ease, supra, necessarily controls the determination of the present controversy. Although these eases hold that one state need not give full faith and credit to a divorce decree rendered by a state which has neither jurisdiction of the parties nor subject matter, they do not decide that one state may not, if it wishes, recognize as valid a decree of another state. However, the decisions are significant for they point out, not only that a state has the “right collaterally to impeach a decree of divorce made in another state, by proof that the court had no jurisdiction, even when the record purports to show jurisdiction” and that “jurisdiction ... is founded on domicil, ’ ’ but also that if the findings of domicil by one state were conclusive in the state from which the successful litigant came, “the policy of each State in matters of most intimate concern could be subverted by the policy of every other State.” (Williams v. North Carolina, 325 U.S. 226 [65 S.Ct. 1092, pp. 1095, 1096, 89 L.Ed. 1577, 157 A.L.R. 1366].)

It is a well established rule that jurisdiction to grant a divorce rests upon bona fide domicil. Where neither party is domiciled within the state, no divorce can validly be granted and all proceedings, as well as the judgment, are void. Stated another way, a decree of divorce rendered in one state may be impeached and denied recognition in another upon the ground that neither of the parties had domicil at the divorce forum, and this is true notwithstanding the recital in the decree from the other state of the jurisdictional fact of domicil or residence. (See: Beale, Conflict of Laws, vol. 1, §§74.3, 111.1 and cases cited therein; Goodrich, Conflict of Laws (2d ed.) §123; Rest., Conflict of Lawe, § 111; 9 Cal.Jur. 815, 817.) This principle has been recognized by the United States Supreme Court in recent decisions (Williams v. North Carolina, 325 U.S. 226 [65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366]; Esenwein v. Pennsylvania, supra), and has been consistently followed by courts of other states. (Reed v. State (1945),-Tex.Crim.R.- [187 S.W.2d 660]; Atkins v. Atkins, supra; Davis v. Davis, supra; Wilkes v. Wilkes, supra; Wolff v. Wolff, supra; Melnick v. Melnick, supra; Koscove v. Koscove, supra; Usen v. Usen, 136 Me. 480 [13 A.2d 738, 128 A.L.R. 1449]; Howe v. Howe, 179 Va. 111 [18 S.E.2d 294]; Adams v. Adams, 191 Ga. 537 [13 S.E.2d 173] ; Wright v. Wright (1942), 350 Mo. 325 [165 S.W.2d 870]; Ainscow v. Alexander (1944),-Del.- [39 A.2d 54]; Navarrette v. Joseph Laughlin, Inc. (1944, La.App.), 20 So.2d 313; Coe v. Coe (1944), 316 Mass. 423 [55 N.E.2d 702]; Re Lindgren, 293 N.Y. 18 [55 N.E.2d 849, 153 A.L.R. 936]; Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455 [35 A.2d 335] ;" Noffsinger v. Noffsinger (1943, D.C.Dist.Col.), 50 F.Supp. 810; and for a more complete list of eases see 157 A.L.R. 1399 supplementing annotation in 143 A.L.R. 1294.)

The rule of decision long followed in this state is that when a foreign divorce decree is relied upon, and the record shows compliance with the foreign law, a presumption of valid-

ity arises and, in the absence of a successful attack upon the ground that the foreign court had no jurisdiction, the foreign decree will be recognized here. However, by an equally well settled corollary of the rule, it is always competent to collaterally impeach a decree of divorce rendered in another state by extrinsic evidence showing that the court pronouncing it did not have jurisdiction either of the parties or the subject matter. Thus the decree may always be attacked upon the ground that the foreign court had no jurisdiction because the petitioning party had not established a bona fide domicil. (Kadello v. Kadello, 220 Cal. 1 [29 P.2d 171] ; Delanoy v. Delanoy, 216 Cal. 27 [13 P.2d 719]; Estate of Pusey, 180 Cal. 368 [181 P. 648]; Estate of Pusey, 177 Cal. 367 [170 P. 846] ; Bruguiere v. Bruguiere, 172 Cal. 199 [155 P. 988, Ann. Cas. 1917E, 122] ; Estate of Hancock, 156 Cal. 804 [106 P. 58, 134 Am.St.Rep. 177]; In re James, 99 Cal. 374 [33 P. 1122, 27 Am.St.Rep. 60]; Marshall v. Marshall, 69 Cal.App.2d 20 [157 P.2d 854]; Brill v. Brill, 38 Cal.App.2d 741 [102 P.2d 534]; Estate of Davis, 38 Cal.App.2d 579 [101 P.2d 761, 102 P.2d 545]; Estate of McNutt, 36 Cal.App.2d 542 [98 P.2d 253]; Estate of Bruneman, 32 Cal.App.2d 606 [90 P.2d 323]; DuQuesnay v. Henderson, 24 Cal.App.2d 11 [74 P.2d 294]; Wynne v. Wynne, 20 Cal.App.2d 131 [66 P.2d 467]; Kegley v. Kegley, 16 Cal.App.2d 216 [60 P.2d 482]; People v. Harlow, 9 Cal.App.2d 643 [50 P.2d 1052] ; Ryder v. Ryder, 2 Cal.App.2d 426 [37 P.2d 1069]; Warren v. Warren, 127 Cal.App. 231 [15 P.2d 556] ; Broder v. Broder, 122 Cal.App. 296 [10 P.2d 182] ; Anthony v. Tarpley, 45 Cal.App. 72 [187 P. 779] ; Steinbroner v. Steinbroner, 30 Cal.App. 673 [159 P. 235]; In re Culp, 2 Cal.App. 70 [83 P. 89].) A decree based upon either personal or constructive service or even a personal appearance may be attacked upon this ground. (Rehfuss v. Rehfuss, 169 Cal. 86 [145 P. 1020] ; Brill v. Brill, supra; Estate of Davis, supra; Estate of McNutt, supra; Estate of Bruneman, supra; Kegley v. Kegley, supra; Ryder v. Ryder, supra; Anthony v. Tarpley, supra; see: Roberts v. Roberts, 83 Cal.App. 345 [256 P. 826]; Goodrich, Conflict of Laws (2d ed.) §123, and cases cited therein; Beale, Conflict of Laws, vol. 1, § 111.1.)

Section 1916 of the Code of Civil Procedure provides: “Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.” Civil Code, section 90, provides: “Marriage is dissolved only: One—By the death of one of the parties; or, Two—By the judgment of a court of competent jurisdiction decreeing a divorce of the parties.” In view of these code provisions, once it is established that the court of a sister state or foreign country was without jurisdiction to render a valid decree of divorce, the courts of this state are precluded from recognizing as valid a dissolution of marriage based upon such a judgment. (See: People v. Harlow, supra, p. 646, and In re Culp, supra, p. 81.)

A state undoubtedly has a constitutional right to declare and maintain a policy in regard to marriage and divorce or any other family relationship, at least as to persons domiciled within its borders. And to hold that every divorce decree must be recognized as valid here because our social state generally recognizes divorce and the legality of remarriage would be to disregard our own marital policy as established by the Legislature. Also, the state is vitally concerned with the welfare of the deserted wife or' children within its borders, and the fact that a spouse is unwilling or unable to travel across the country to dispute the issue of jurisdiction, or that no one is in a position to protest before the foreign decree is entered, or that a recital of jurisdiction is contained in the decree should not be, of itself, a certificate of legal correctness for what has been done. (Delanoy v. Delanoy, supra, p. 35; Rehfuss v. Rehfuss, supra, p. 92; Kegley v. Kegley, supra, p. 221; Howe v. Howe, supra, p. 118; Usen v. Usen, supra; see: Powell, And Repent at Leisure, 58 Harv.L.Rev. 930; Williams v. North Carolina, 325 U.S. 226 [65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366]; Radin, The Authenticated Full Faith and Credit Clause, 39 Ill.L.Rev. 1; Rodman, Bases of Divorce Jurisdiction, 39 Ill.L.Rev. 343; Goodrich, Conflict of Laws (2d ed.) § 123; Beale, Conflict of Laws, vol. 1, § 110.1.)

By the preliminary recitals of the findings of fact, it appears that after the court “heard testimony” and “examined proofs offered by the plaintiff,” on its own motion it “refused to hear further evidence.” What this further evidence was or by whom it was offered is not shown by the record. However, in his brief, the respondent states that he was called as a witness and testified for the appellant under the provisions of section 2055 of the Code of Civil Procedure. During his examination, it is said, upon the introduction in evidence of the final decree of divorce rendered in Nevada, the court “halted the trial” and decided that the determination in the prior action was decisive of the issues presented by Mrs. Crouch’s complaint.

The basis for the ruling upon the introduction of further evidence is made clear by the court’s decision. It concluded, as a matter of law, that even if the respondent’s domicil in Nevada was not bona fide, the decree of divorce entered in that state is a bar to the present action. As the appeal is upon the judgment roll alone, in conformity with the general rule, it will be presumed that the finding as to the respondent’s lack of good faith in establishing a Nevada domicil is supported by the evidence. If he was not given an opportunity to present evidence in addition to his own testimony as an adverse witness, the ruling was not prejudicial for the judgment was in his favor. In the event of another trial, unquestionably the court will receive such admissible evidence as may be offered by each of the parties upon the issue of the bona tides of the respondent’s Nevada domicil.

The judgment is reversed.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.