*1 5,1959.] In Bank. Oct. 19886. F. No. [S. HUDSON, HUDSON, Respondent, v. JAMES
OLIVE Appellant.
George Appellant. Porter Tobin for Haskell Respondent. M. Goodman for grant from order TRAYNOR, Defendant appeals J. an. costs, attorney’s fees, court temporary alimony,
ing plaintiff permanent and in her action for divorce other relief and alimony. May 3, Nevada, on Reno, in parties married were 1950, plaintiff still They in and 1947. moved California April on left their home in Defendant domiciled 6, 1957, this state. Reno, obtain go' announcing his intention filed her weeks. Plaintiff return in about six divorce, and personally served April 1957, was 22, on and defendant action his action May 16, Defendant filed in Idaho on 1957. person- plaintiff May 1957, was and Idaho on divorce ally appear in the Plaintiff did California. served an order proceeding. 14, 1957, she obtained June Idaho On pendente granted relief why be- cause she should not to show day, On the same defendant in the action. lite appeared California de- attorney in action and his the California granted plaintiff’s complaint. The Idaho murred to Defend- on June 1957. a final decree of divorce defendant ant introduced this decree proceeding and in the California ground that cause on the the order to show resisted marriage. introduced evi- Plaintiff had dissolved the decree validity of the Idaho decree. The tending dence to attack prima showing that made a facie had court held granted requested marriage relief. existed and decree must be the Idaho divorce contends that Defendant Const., 1) ; that (U.S. art. IV, credit § faith and given full grant unless jurisdiction to no had trial court though proper on a show- married; that even parties were costs, fees temporary alimony, may obtain ing a wife decree, plaintiff cannot, an ex attack her to to enable upon weak and the decree is attack ground that her on the auto- did not if the Idaho decree that even inconclusive; and support, order plaintiff’s to’ matically terminate ground that the court abused reversed still be must determining amount of the award. its discretion temporary permanent, nor costs alimony, Neither valid between the if no be awarded can fees Dietrich, (Dietrich existed. parties ever *4 389, Hite, 124 Cal. 391-395 ; Hite v. P.2d 502-504 269] [261 Cook, Am.St.Rep. ; In re .82, 45 L.R.A. 71 227, 793] P. [57 á mar 46].) When valid Cal.App.2d 1, 3 P.2d 42 [108 however, „and- issue the before admitted, the riage is may parte divorce, the trial court validity an ex of is the
739 costs, and fees to enable temporary alimony, grant the wife if demonstrates parte she the ex divorce her to attack ability pay it. to her husband’s for the need award ; P.2d (Kopasz Kopasz, 423, 424-425 846] v. 34 Cal.2d [210 ; 406, Baldwin, 417 P.2d 670] Baldwin v. [170 Gromeeko, Cal.App.2d P.2d 117, 127 Gromeeko v. 110 [242 Appeal add 41].) would District Court of decisions Recent prove her attack another wife must condition: the good in a rea parte the ex faith and with divorce is made (Knox Knox, Cal.App.2d probability of v. 88 sonable success. 666, Kalmus, Kalmus 676-677 v. 103 P.2d Cal. [199 App.2d 405, Ottinger Ottinger, ; 420-423 57] [230 cf. Cal.App.2d 220, 141 225 of The addition [296 theory entry this is on the the condition based parte automatically valid ex terminates divorce obligations sup and a marital rights, including fortiori port rights. (Knox 676.) Knox, supra, at To avoid parte divorce, effect of the ex the wife must demonstrate that the divorce jurisdiction; only court was without if she can likely she show that to succeed can her required husband be necessary furnish funds. We need not determine condition, whether has met this theory upon for the it is based is which with inconsistent recent decision Supreme the United States Court Vanderbilt, Vanderbilt v. 416 354 U.S. 1360, 1456], S.Ct. 1 L.Ed.2d [77 Following Williams (Williams cases v. North Caro- I, lina 207, 317 287 279, 87 U.S. S.Ct. L.Ed. 143 [63 A.L.R. II, and Williams North Carolina 325 1273] U.S. 226 [65 1092, 1577, S.Ct. 89 L.Ed. 1366]), question 157 A.L.R. arose whether a valid ex divorce entered at the domicile only party marriage automatically one to the terminated support. the wife’s question This by was settled theory of divorce, divisible foreshadowed Esenwein v. Commonwealth, 325 1118, U.S. S.Ct. 89 L.Ed. 1608, 157 A.L.R. (concurring opinion) and set forth 1396] Estin, in Estin v. 334 U.S. S.Ct. L.Ed. A.L.R.2d where the court held that an ex procured Nevada the husband did not terminate prior adjudicated separate maintenance: “The result this situation is to make the divorce divisible— give effect Nevada decree insofar as it affects marital status and to make it ineffective on alimony. the issue of It accommodates the interests both Nevada and New York in this broken marriage by restricting each State to the
740 549.) (Id.,
matters of her dominant concern.”
at
Finally,
supra,
perfected
Vanderbilt,
the court
in Vanderbilt v.
theory
holding that even when' the
its
divisible
judgment
right
support
been
wife’s
had not
reduced to
parte
divorce,
before the ex
that divorce could
affect her
rights.
process
support
holding
the due
The court rested its
jurisdiction
foreign
personal
clause: since the
state had no
pur
it
“.
to the extent
over the absent
its decree
. .
spouse,
support,
ported to affect the wife’s
was void and
obligate New
the Full Faith
did not
York
and Credit Clause
give
recognition.”
(Id.,
419.)
it
at
due
Since
adjudicate
process clause forbids the divorce court
support,
it
that she cannot be
absent
follows
support
deprived by
rights
she
court of whatever
had
under the law of her
at the time of the divorce.
domicile
(Lewis Lewis,
394
389,
v.
[317
therefore,
question
case,
in this
is whether the
The crucial
support
permits
to obtain
follow
law of California
jurisdictions
parte
33
entry of an
divorce. Of the
ing
ex
question, 23
and the
passed on this
states
District
have
may
that a wife
obtain
have
held
Columbia
(White
following
entry
ex
Wagster
305,
702];
v.
White, 83 Ariz.
307-309
v.
[320
Davis,
638]; Davis v.
Wagster, 193
906
S.W.2d
902,
Ark.
[103
Hopson
Hopson,
241];
221
37,
P.
v.
F.2d
41
70 Colo.
[197
Pawley
Pawley, (Fla.)
464,
46
[App.D.C.];
v.
So.2d
839, 847
1358], cert. den.
741
statute], affirmed,
1360,
354
416
U.S.
1
S.Ct.
L.Ed.2d
[77
1456]; Armstrong v. Armstrong,
406,
162 Ohio
410-411
St.
267], affirmed,
629,
N.E.2d
tory (Campbell Campbell, 107 Cal.App.2d divorce decree. v. 732, 81].) 734-736 P.2d We also held that a wife have [238 separate distinguished cannot maintenance, recover as from following entry alimony, pro of a valid ex by (DeYoung cured 521, DeYoung, husband. 27 v. Cal.2d Cal.App.2d Kalmus, 523 P.2d Kalmus v. 103 [165 405, Knox, Cal.App.2d ; 666, 423 Knox v. 88 P.2d 676 [230 57] ; Patterson, Cal.App.2d 838, P.2d Patterson v. 82 [199 766] Cal.App.2d ; Calhoun, 842-843 Calhoun v. 70 P.2d [187 113] 233, action between 236-237 P.2d second [160 [In permanent alimony. parties,
same wife asked for prior separate court estoppel against was an held maintenance action prosecution of another action for originally and refused decide whether wife could have alimony. Calhoun, Cal.App.2d 81 297, sued for Calhoun v. 922];] Colbert, 276, v. 304-305 P.2d Colbert [183 cf. separate 279 P.2d The distinction between mainte [169 upon marriage (Monroe depends existing an nance, which Superior 473]), Court, 28 [170 marriage by alimony, which the dissolution of follows permit other is also made several states that ali divorce, mony following separate maintenance ex but compare (Pawley Pawley, supra, 474-475; at Lowry Willoughby, supra, Lowry, with .v. Willoughby v. compare Parker, ; Parker v. Kan. 869] Chittick, 332 Mass. supra, with Chittick *7 495].) respect, however, this a distinction must In N.E.2d preexisting decree enforcement of a of between the be drawn securing separate of a decree of separate and the maintenance Although foreign the a ex divorce. maintenance after party a is grant separate maintenance to who not court cannot right existing support that an it not follow married, does automatically terminates on the in a decree such formalized in marriage. “In a a divorce action of the dissolution upon court there has constructive service foreign state the person (in residing a adjudicate rem) of authority to status away (in jurisdiction adjudicate not to but has in that state personam) rights property the absent of any of the then vested per state, such is not reside in who spouse does not who not process in that state and who does sonally served with rights spouses personal of the in appear the in action. jurisdiction a'cting of the court re the property not within proper forum. It seems to in the litigation to subject main proper husband, a ease or in the right wife, a of that me the support spouse the other as adjudicated only by the of from date the divorce right property a be a is which can jurisdiction personam.” having (Schauer, concurring in J., DeYoung in DeYoung, If, foreign a concluded, as we have ex divorce does right support arising not the marriage, terminate out of the right support formally a it not terminate the does fortiori by separate and established defined valid maintenance de cree, and that therefore continues until or modified appropriate proceedings. in terminated Cardinale v. Car dinale, 8 contrary, is but to the theory that ease was decided before of divisible divorce supra, was established Estin Estin, 334 U.S. and is overruled. contends,
Defendant however, that section 137.2 of the requires existing Civil Code marriage jurisdictional aas prerequisite for granting alimony pendente lite. together 137.2, Section with the other sections concerning alimony Civil Code support (§§ 136, and 139) specifically alimony courts to award support authorize during separate actions for divorce or maintenance. These sections, govern however, ease of domestic divorce jurisdiction which the parties. court has of both They are not case, concerned with a such as one, involving foreign elements. In the ease, parties normal divorce are of they course married: if are not married, there can be no If defendant’s Idaho valid, decree is we must give it the required by full faith and credit the Constitution is, recognize the United States: that we must parties longer are no married and that no divorce can be granted plaintiff. Once this fact is established the sections by of the Civil invoked irrelevant, Code defendant become for they solely alimony deal with the support award of A cases. arises from the recognized by is (Civ. Code, statute. §§ 174.) decree; It not created a divorce the decree is simply enforcing right. one means of imply We do remedy. has mistaken her At the time her existing action was filed there was an marriage; if but prayer marriage, Idaho decree dissolved the her for divorce only prayer permanent is moot and remains adjudicated. decree, valid, to be The Idaho even if did not *8 plain not under the decision, and could Vanderbilt terminate alimony of tiff’s under the law this state. 744 alimony grant can Defendant contends that our courts only ground it in
only divorce, in on the that an action for alimony. provide for This that the statutes such an action early adversely as as contention .was answered defendant a Galland, 38 wife sued 1869. In Galland v. Cal. alimony asking a The for without for divorce. husband alimony provision in an action statutes contained no for save that were The the statutes for husband contended alimony power grant that court exclusive and lacked equity general any The court held that it had in other case. alimony specifically powers grant in aside from those cases conten answered the husband’s provided for statute and dealing Legislature not with in “The was tion these words: independent subject- subject alimony, an general of as of an one of the incidents legislation; only, of but as matter power application It saw fit to define for divorce. alimony application for the allowance of over Court alimony subject in considering not divorce; but was provided a If it that writ any of cases. had other class in an might against a defendant distringas issue or ne exeat by any scarcely one be claimed it would divorce, for action writs should such equivalent to declaration that this was reason, a For the same any of actions. in other class not issue is not to be con alimony a suit for divorce provision for alimony allowed shall be as a declaration sidered Paxton, Paxton v. also (Id., at 267-268. See other actions.” Superior Livingston ; v. P. 667, 670-672 150 1083] Cal. [89 175]; P. 38 L.R.A. 633, 634-636 Court, 117 Cal. [49 allowing 445], P. 87, 92 Dunphy, 161 Cal. Dunphy v. [118 annulment despite the pending alimony suit temporary statutory authorization; Bernard express absence cf. P.2d 353, 356-357 Cal.App.2d 79 Bernard, [179 Dimon, In 516 Dimon Cal.2d P.2d [254 that a however, majority of this court held period alimony for herself is limited to the recover parties The Dimon case was are husband wife. when the Vanderbilt case and must be reexamined before decided light of that case. proposition of the Dimon ease that broad granted if the has been dissolved cannot cannot be marriage was dissolved in this state and the denied, if the be spouses. (See Long Long, both jurisdiction over had Superior Court, Tolle v. 607].) But the Dimon ex- case 95, *9 proposition marriage to a case where the tended cover by parte pro- had been dissolved ex Connecticut decree by support cured the from wife. to her hus- adjudicated prior band had not been to the divorce decree as Vanderbilt, in the Estin case. After but the Estin, before argument terminating by could have been that the mar- made riage parte automatically rights, the ex divorce all terminated including nonadjudicated right support grew the to that out marriage. a case, of that But the after Vanderbilt such proposition be maintained, cannot it is now clear that parte proceeding support rights. ex does not affect the wife’s By treating any terminating pos- the Connecticut decree as sibility plaintiff that in Dimon a could secure state, gave weight in this award that decree in this we more constitutionally state than it is now entitled to To receive. involving foreign follow after in a Dimon Vanderbilt case a parte permit ex divorce to of another state to preclude of deciding question the courts this state from a of foreign law that the jurisdiction California court had no to inescapable determine. "Under Vanderbilt the conclusion is that the issue of alimony by which could not be decided court, open proper remains for determination in a The Dimon case forum. is therefore overruled. The doctrine of divisible divorce forth in set Estin and provides problems
Vanderbilt a sensible to the solution en- gendered by repudiation ex divorces. Its in this case compel upon protect would collateral attacks such divorces rights resulting support, with confusion as to marital property status, may rights persons rights, of innocent third who upon have decree, legitimacy relied and the (See Powell, Repent children. Leisure, And At 58 Harv.L. 930.) California Rev. being has a dominant interest in the well- her domiciliaries, and the courts this state are adjudicate open support rights their following an ex plaintiff may Since maintain her perma action for alimony nent attacking without decree, defendant’s Idaho may temporary it follows that she receive costs, alimony, and fees to enable her to continue the suit when she has shown that she needs such relief that and defendant ability has the provide (Sweeley such assistance. Sweeley, 28 upset This court will not temporary trial court’s award of unless the circum stances show as a matter of law that the court has abused Baldwin, (Baldwin discretion. its supra, at Sweeley Sweeley, 393- income 394.) the combined Defendant contends exceeded a former her minor son con by $1,600 per year. Defendant fails to earnings his own plaintiff’s evidently son did, that sider, as the trial court contribute college was unable to about to enter was plaintiff’s support. showed that The evidence his mother’s per month; she expenses earnings by $63 her exceeded home; parties’ making payments California was although per pay week, was $70 that her take-home during per pay been week $89 had husband’s take-home pension parties and he received lived time the California *10 ex anticipated increased per she month; and that $33 maintaining present action. Defendant does penses in pay amount of unable to the modest he is not contend that court. On ($65 per month) ordered the trial the award say law that the trial record, as a matter of we cannot its discretion. court abused objects part of the order defendant Finally, conveying property. him from the California restrained pre had threatened to that defendant showed The evidence any property enjoying in the event plaintiff’s vent prayed to have sole title to the that he had of divorce proceedings. in him in the property vested Idaho California preserve property properly sought until trial court rights parties’ adjudicated; therein could be time as the such an abuse of discretion. was its order is affirmed. appealed from The order Peters, Schauer, J., Spence, J., J., J., Gibson, C. White, J., concurred. sole reason in the order for the McCOMB, I concur J. analogous in Baldwin to those my facts are that, in opinion, 670], where the con Baldwin, 28 page seq. 416 et is stated at trolling rule of law