Opinion
Page __
__ Cal.App.2d __258 P.2d 588WORTHLEYv.WORTHLEY.Civ. 19585.California Court of Appeals, Second District, Second DivisionJune 22, 1953Opinion Corrected and Rehearing Denied July 8, 1953.
Hearing Granted Aug. 20, 1953.
Kenny & Morris, Los Angeles, for appellant.
Slane, Mantalica & Davis, Los Angeles, by Frank Barclay, Los Angeles, for respondent.
MOORE, Presiding Justice.
In an action to enforce a judgment of a New Jersey court for separate maintenance, the court below sustained a plea in bar of a divorce decree subsequently obtained in Nevada. Mrs. Worthley appeals from the judgment which bars her from further attempts to enforce payments under her New Jersey decree.
The parties were married March 6, 1943, and separated November 21, 1946. On May 19, 1947, she obtained a judgment, in [258 P.2d 589] personam, by a chancery court of New Jersey, the state of her matrimonial domicile. Respondent was thereby ordered to pay his wife $9 every week for her support and to pay other sums aggregating $433. The husband, on the records of the same court, consented to the entry of such judgment.
Respondent departed from New Jersey in March, 1948, became a resident of Nevada and promptly initiated proceedings for divorce. Having obtained substituted service on his wife in New Jersey, thereafter, on June 7, 1948, he caused a final decree of divorce to be entered in the District Court of Washoe County, Nevada. No mention was made in that decree of the former judgment in chancery. Respondent, having ceased to make payments required of him, moved into California and thereafter ignored his obligation to his former spouse.
The sole question, therefore, is whether the judgment, in rem, entered in the court of Nevada, serves to nullify the judgment in personam previously entered in New Jersey. Sound reason and eminent authority seem to negate such thesis.
The judgment obtained by appellant in New Jersey is her own personal property. It can be taken from her neither on the ipse dixit of the judgment debtor nor by the formal entry of a judicial decree entered in a state which she never entered and to whose jurisdiction she never submitted. Whatever property or rights appellant owned on the day the divorce decree was granted continued to be hers despite the solemnity of the ex parte, judicial proceedings and despite the fact that the Nevada decree dissolved her marital status and made respondent free from future marital obligation to her. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 1215, 92 L.Ed. 1561, 1 A.L.R.2d 1412, 1416. The Estin story is a rank parallel to that at bar. The couple were married in New York in 1937 and separated in 1942. In 1943 Mrs. Estin sued her husband for separate maintenance. Though she had no issue, she was awarded 'permanent alimony' of $108 per month. In 1944 he located in Nevada; in 1945 he sued for divorce and obtained constructive service on her, but she made no appearance. He was awarded an absolute divorce on the ground of "three years continual separation, without cohabitation." He thereupon ceased to make payments. When she sued him in New York for arrearages of alimony he appeared and moved to eliminate the alimony provision of her judgment by virtue of the Nevada decree. The court's denial of his motion was not disturbed by the United States Supreme Court.
The Estin case is followed by a holding of the Supreme Court to the effect that although a decree of a court of Wisconsin, where the wife had never resided and made no appearance, awarded custody of the two children to their father in an ex parte divorce action, the court of Ohio was not obligated under the full faith and credit clause to accept the Wisconsion judgment as to the children. Hence, the decree of the Ohio court denying the wife support for her children was reversed. 'Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.' May v. Anderson, 73 S.Ct. 840, 843; see also Campbell v. Campbell, 107 Cal.App.2d 732, 736, 846, 238 P.2d 81.
Respondent cites authorities, Cardinale v. Cardinale, 8 Cal.2d 762, 68 P.2d 351; De Young v. De Young, 27 Cal.2d 521, 165 P.2d 457; Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923; Wilson v. Superior Court, 31 Cal.2d 458, 465, 189 P.2d 266, which he contends establish the paramountcy of his divorce decree and that it must be given full faith and credit; and he asserts that appellant has no right to collect support money from him since they are divorced. In the Cardinale case the wife had obtained at San Diego an ex parte decree for separate maintenance. The husband continued the payments for ten years. Then he sued her in Nevada for divorce on the ground of extreme cruelty and served her by publication. Thereafter, Mrs. Cardinale procured a judgment for $998, the unpaid monthly arrearages. Thereupon the husband moved to set aside the last mentioned judgment and to modify her decree for separate maintenance. The court found upon conflicting evidence all factual issues in favor of the husband and adjudged [258 P.2d 590] the nullity of the decree for $998 and terminated the separate maintenance decree as of the date of the Nevada divorce. She made no attempt to prove her innocence of wrongdoing after March 2, 1923, but by her pleading alleged her condonation of her husband's prior offenses. The Nevada decree was valid, and she was in no position to maintain the separate maintenance decree. Mrs. De Young sued for separate maintenance some six years after her husband's divorce and failed to prove his lack of domicile or compliance with the laws of Chihuahua. Proof of a prior dissolution of the marriage is a complete defense to such action. Mr. Calhoun had a bona fide domicile in Nevada, and obtained a valid decree of divorce on the three-year-law of no cohabitation, and Mrs. Calhoun did not ask for maintenance while still the wife of Calhoun. Wilson v. Superior Court decided that the final decree of divorce includes the interlocutory provisions unless otherwise stated.
Judgment reversed.
McCOMB and FOX, JJ., concur.