Opinion
Rehearing Denied March 8, 1971.
Opinion on pages 399-404 omitted.
HEARING GRANTED
Hearing Granted April 14, 1971.
Jones, Baxley, Crouch & McCarty and A. Morgan Jones, San Diego, for plaintiff and appellant.
Benjamin Weissmann, San Diego, for defendants and respondents.
OPINION
AULT, Associate Justice.
The Morris Plan Company of California (Morris Plan) filed an action in the Superior Court seeking a judgment declaring a homestead on real property invalid and ineffective as against its judgment lien. The declaration of homestead under attack was recorded on October 1, 1965, by Maria Lord Converse Lance on behalf of herself and William J. Lance on real property which they occupied as their home. In the declaration, Maria stated she was a married woman and William J. Lance was her husband and the head of a family consisting of the two of them.
Morris Plan had obtained a consent judgment against both Lances in August of 1966 and had recorded its abstract of judgment on November 16, 1966. The abstract showed the total amount of the judgment to be $10,473.01.
In the court below, Morris Plan alleged and contended the homestead was invalid and ineffective to exempt the Lances' property from execution on its judgment because the statements in the declaration to the effect William and Maria were lawfully married and husband and wife were false and untrue. The Lances contended the homestead was valid, the statements in the declaration were true, and they were lawfully married. After trial, the court found in favor of the Lances and its judgment ordered 'That plaintiff take nothing by its complaint.' Morris Plan has appealed from the judgment.
[93 Cal.Rptr. 105]The undisputed facts show Maria and William, at all relevant times, were citizens of the United States and residents of California. Neither had any legal impediment to marriage. In December 1963, at Tijuana, Baja California, Mexico, Maria and William participated in a marriage ceremony which was to be perfected by proxy in the State of Tlaxcala, Mexico. They later received a certificate by mail stating they were married, believed in good faith they were legally married, lived together and held themselves out as husband and wife.
Based upon the evidence, including expert testimony on the law of Mexico, the trial court found and concluded the marriage between Maria and William '* * * was not performed according to the law of Baja California, * * * or the State of Tlaxcala and, judged by the law of the * * * place of the marriage, was void.' It further found and concluded the marriage certificate, upon which the parties relied and which appeared regular on its face, was a legally worthless document under Mexican law.
The trial court did not sign formal findings of fact and conclusions of law, as such. However, it ordered its Memorandum Decision, which contained certain findings of fact and conclusions of law, to constitute the findings of fact and conclusions of law in the action. Neither side questions the propriety of this order on appeal, and we have determined to consider the findings contained in the Memorandum Decision as the findings of the court.
The trial court refused to apply Mexican law to determine the validity of the marriage and further found and concluded:
(1) Plaintiff did not enjoy sufficient status to attack defendants' marriage;
(2) Defendants had sufficiently complied with the homestead law and their declaration could not be attacked by the plaintiff;
(3) Mexican law was inapplicable to the facts of the case;
(4) The Lances' marriage was valid under applicable California law.
We believe the trial court erred and are compelled to reverse the judgment. The validity of a marriage is governed by the law of the place in which it is celebrated. The rule has been adopted in California. (Civ.Code § 63 [now Civ.Code § 4104]; Norman v. Norman, 121 Cal. 620, 625, 54 P. 143; Colbert v. Colbert, 28 Cal.2d 276, 280, 169 P.2d 633; Jones v. Jones, 182 Cal.App.2d 80, 82, 5 Cal.Rptr. 803.) The rule is generally stated in positive form, i. e., a marriage valid where celebrated or contracted will be regarded as valid everywhere. However, the converse is also true--a marriage void where it is celebrated or contracted will be regarded as void everywhere. (35 Am.Jur., Marriage, § 168, p. 285; Beale, The Conflicts of Law, Vol. 2, pp. 669-670; Norman v. Norman, supra, 121 Cal. 620, 627, 54 P. 143.
The wisdom of and the practical necessity for adhering to the stated general conflicts rule concerning the law governing the validity of marriages are demonstrated by the situation presented in the instant case. A marriage of the kind here under consideration is neither contemplated nor permitted by California statutes regulating marriage. Nonetheless, under the general rule of conflicts, a proxy marriage, validly celebrated under the law of another jurisdiction, would be treated as valid in this state. (See Barrons v. United States, 9 Cir., 191 F.2d 92, 95-96.) But we do not believe the rule allows us to pick and choose by accepting that part of the foreign law which permits such marriages in the first instance and rejecting that part which provides such marriages are void unless certain requirements are met and certain procedures followed. This is particularly true under the circumstances of this case, because our own statutes regulating marriage provide no standards or regulations by which to judge the validity of proxy marriages.
Even if we were to ignore the universally accepted rule of conflicts which requires [93 Cal.Rptr. 106] the validity of a marriage to be determined according to the law of the place where it was entered into or celebrated, we would still be compelled to reverse the judgment. Applying California law cannot breathe life into this marriage. It was a proxy marriage, and the Lances make no contention they complied with, or attempted to comply with, the statutory requirements of this state concerning licensing, examination and solemnization. The trial court's conclusion the Lances' marriage was valid under California law is clearly erroneous.
Having found the marriage void under Mexican law, the trial court's refusal to apply that law to determine its validity was error. The parties have not provided a transcript of the evidence, and we are unable to ascertain from the record before us the basis upon which the trial court found the marriage void under Mexican law. In the absence of a record of the trial proceedings, we must assume the finding is supported by substantial evidence. (White v. Jones, 136 Cal.App.2d 567, 569, 288 P.2d 913; Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 681, 22 P.2d 5.) The finding the marriage between William and Maria was void under the law of Mexico, where it was purportedly contracted, is inconsistent with the trial court's general finding the marriage was valid. Such inconsistency between two material findings, both presumed to be supported by the evidence, requires a reversal of the judgment, (Learned v. Castle, 78 Cal. 454, 459, 18 P. 872; Fanta v. Maddex, 80 Cal.App. 513, 519, 252 P. 630.)
The statements, 'I am a married woman and the name of my husband is William J. Lance,' and 'My said husband is the head of a family,' contained in the declaration of homestead are not evidence of the truth of such statements. The truth of these recitals must be provided from other sources whenever the validity of a homestead is attacked.
'The rights of the homestead claimant are created by the filing of a declaration of homestead in the form specified by the statute, coupled with the actual present existence of the facts recited in the declaration. * * * A valid homestead and a valid declaration of homestead are widely different.' (Apprate v. Faure, 121 Cal. 466, 467-468, 53 P. 917, 917-918; see also Rich v. Ervin, 86 Cal.App.2d 386, 392, 194 P.2d 809.)
The statements are essential to the validity of the homestead and, if they are not true, the homestead itself is invalid. (Rich v. Ervin, supra, 86 Cal.App.2d 386, 392, 194 P.2d 809.) Here, the evidence established, and the court found, the marriage of the Lances was void under the law of the country in which it was purportedly celebrated. A void marriage is a legal nullity and will be disregarded or treated as nonexistent in any action in which the fact of marriage is material. (Estate of Gregorson, 160 Cal. 21, 26, 116 P. 60; 35 Am.Jur., Marriage, § 58, p. 221.)
Only one case has been cited which involves the validity of the homestead based upon a purported Mexican marriage. In Shumaker v. Biscailuz, 130 Cal.App.2d 414, 278 P.2d 939, the petitioner, who had obtained a judgment against the real party in interest who claimed to be his wife, sought a writ of mandate to require the sheriff to sell her one-half interest in real property. The real property in interest had filed a declaration of homestead upon the property in which she had stated she was the wife of the petitioner and the head of a family. The trial court found the parties had never been married and that the marriage ceremony between the parties in Mexico was invalid. It issued the writ directing the sheriff to sell the property under a writ of execution. The judgment was upheld on appeal.
The contention the Shumaker case should be distinguished because it was an action between the parties is not convincing. In the first place, the petitioner in Shumaker was in the position of a creditor attacking the validity of the homestead; it was not an action for an annulment or a [93 Cal.Rptr. 107] direct attack upon the marriage. Furthermore, the tests by which the validity of a homestead may be ascertained appear to be the same whether the question arises between those claiming the homestead, or one of them, and a creditor. (Estate of Delaney, 37 Cal. 176, 180; Rich v. Ervin, supra, 86 Cal.App.2d 386, 390, 194 P.2d 809.)
The judgment is reversed.
GERALD BROWN, P. J., and COUGHLIN, J., concur.