Here the marriage relationship admittedly existed at the time of, and continued for several weeks following, the filing by plaintiff of her divorce complaint in this state, and the chief defense offered by defendant to plaintiff's requests for relief is that he thereafter secured in another state a decree of divorce from her. It is our view that under such circumstances, and upon a proper showing otherwise, plaintiff should not be denied the payment from defendant of funds to enable her to properly prosecute an appeal from the judgment determining the fact and effect of the Nevada decree. ( Cf. Fisher v. Superior Court (1930), 110 Cal.App. 565, 567 [ 294 P. 445]; Stewart v. Stewart (1939), 32 Cal.App.2d 148, 150 [ 89 P.2d 404].) It is now the law of this state that it is only after such an appeal has been finally determined (or the judgment of a California trial court adjudicating such issue has become final) that the validity or lack thereof of the Nevada decree and its effect — and consequently the marital status and reciprocal obligations of the parties in this state — can be conclusively settled.
It has also been granted where the wife sought a writ of mandate to have judgment entered for a deficiency in alimony payments ( Parker v. Parker, 22 Cal.App.2d 139, 141-142 [ 70 P.2d 1003]); and where the relief sought was vacation of the entire divorce decree. ( Grannis v. Superior Court, 143 Cal. 630, 632-633 [ 77 P. 647]; Fisher v. Superior Court, 110 Cal.App. 565, 566-567 [ 294 P. 445].) Since the present proceeding is also an attack on the divorce decree, temporary relief may likewise be granted under sections 137.2 and 137.3, and it is immaterial that the decree is attacked only with respect to its property provisions.
Here the marriage relationship admittedly existed at the time of, and continued for several weeks following, the filing by plaintiff of her divorce complaint in this state, and the chief defense offered by defendant to plaintiff's requests for relief is that he thereafter secured in another state a decree of divorce from her. It is our view that under such circumstances, and upon a proper showing otherwise, plaintiff should not be denied the payment from defendant of funds to enable her to properly prosecute an appeal from the judgment determining the fact and effect of the Nevada decree. ( Cf. Fisher v. Superior Court (1930), 110 Cal.App. 565, 567 [ 294 P. 445]; Stewart v. Stewart (1939), 32 Cal.App.2d 148, 150 [ 89 P.2d 404].) It is now the law of this state that it is only after such an appeal has been finally determined (or the judgment of a California trial court adjudicating such issue has become final) that the validity or lack thereof of the Nevada decree and its effect — and consequently the marital status and reciprocal obligations of the parties in this state — can be conclusively settled.
"After considering the record on this motion, the record in the entire case, including the aforementioned stipulation of the parties, the general law, and the law established on appeal for this particular case, the court has come to the following conclusions: [1] "According to the letter and policy of our law, a wife is entitled to pendente lite support, fees and costs (Civ. Code, §§ 137, 137.2, 137.3, 137.5) and, wherever it appears that there has been a ceremonial marriage followed by the assumption of marital relations, the wife is entitled by that fact alone to such pendente lite relief, even though there is an issue concerning, e.g. the validity of the marriage itself or the validity of an apparent intervening divorce ( Dietrich v. Dietrich, 41 Cal.2d 497 [ 261 P.2d 269]; Gromeeko v. Gromeeko, 110 Cal.App.2d 117 [ 242 P.2d 41]; Kopasz v. Kopasz, 34 Cal.2d 423 [ 210 P.2d 846]; Baldwin v. Baldwin, 28 Cal.2d 406 [ 170 P.2d 670]; Fisher v. Superior Court, 110 Cal.App. 565 [ 294 P. 445]) or an issue concerning the validity of an apparent property agreement which has released or limited the husband's duty of support. ( Locke Paddon v. Locke Paddon, 194 Cal. 73 [ 227 P. 715]; Vishner v. Vishner, 125 Cal.App.2d 667 [ 271 P.2d 68]; Spreckels v. Spreckels, 111 Cal.App.2d 529 [ 244 P.2d 917]; Steinmetz v. Steinmetz, 67 Cal.App. 195 [ 227 P. 713].)
Cases cited by respondent, such as, Reeves v. Reeves, 34 Cal.2d 355, 361, 209 P.2d 937 and Colbert v. Colbert, 28 Cal.2d 276, 279, 169 P.2d 633, are also subject to the controlling influence of Hull. This is not to The case of Fisher v. Superior Court, 110 Cal.App. 565, 294 P. 445, becomes pertinent here. The husband obtained a default divorce on August 1, 1929.
THOMPSON (IRA F.), J. This is a companion case to Fisher v. Superior Court (No. 7628), ante, p. 565 [ 294 P. 445], this day decided. [1] In this proceeding the petitioner seeks the writ of mandate compelling the respondent court to enter the final decree in the divorce action, which he alleges he demanded of that court after the expiration of one year from the date the interlocutory decree was entered.