Opinion
Hearing Granted Aug. 3, 1944.
Appeal from Superior Court, Los Angeles County; Ruben S. Schmidt, Judge.
Suit by Edith M. Crouch against Ben E. Crouch for divorce. From a judgment for defendant, plaintiff appeals.
Reversed and remanded for a new trial. COUNSEL
Charles C. Montgomery, Jr., of Los Angeles, for appellant.
Peters & Peters, of Chico, for respondent.
OPINION
DORAN, Justice.
Appellant brought a suit for divorce against respondent in the Superior Court of the County of Los Angeles. Respondent in his answer pleaded a final decree of divorce granted to him in an action against appellant in the First Judicial Court of the State of Nevada, in and for the County of Ormsby, said decree being made and entered on the 4th day of May, 1942. The court below found that appellant’s separate causes of action for divorce were each barred by the final decree of divorce obtained by respondent in the State of Nevada and gave judgment for respondent accordingly.
In the findings made below the trial court set forth in full the findings of fact, conclusions of law and decree of the Nevada court, whereby respondent was there awarded an absolute divorce from appellant. The court below then found, "That at the time of the filing of said complaint for divorce in said Nevada Court, and at the time of the rendition of the said judgment therein, the defendant herein was not a bona fide resident of the State of Nevada, nor of the County of Washoe in the State of Nevada, nor of the County of Ormsby in the State of Nevada, but was in truth and in fact a resident of the County of Butte, State of California, by reason of the facts, which the court now finds, to-wit: that said defendant herein left the State of California and entered the State of Nevada on or about the 28th day of February, 1942, solely for the purpose of obtaining a divorce from the plaintiff herein; that in so doing defendant herein abandoned plaintiff herein without cause; that defendant remained in Nevada for a period just long enough to obtain an apparent residence in Nevada and thereupon filed said action for divorce, obtained said decree, and shortly thereafter returned to Butte County, California; that service upon plaintiff herein in said Nevada divorce action was constructive service, and plaintiff herein was at all times domiciled in and a bona fide resident of Los Angeles County, State of California; that plaintiff herein never appeared in said Nevada divorce action; and that 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." Upon the findings made the trial court concluded that the defendants were entitled to judgment against plaintiff in each of the causes of action in the complaint. For the purposes of this appeal, it is not necessary to consider the position of any defendants other than respondent.
In support of his contention, that the trial court’s conclusions upon the findings and the judgment in respondent’s favor were proper, respondent relies upon Williams v. North Carolina, 317 U.S. 287-324, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. But the basis for the decision in that case readily distinguishes it from the present case and renders the rule of the Williams case inapplicable here. In the case on appeal herein, the evidence upon which the findings of the trial court were based is not before this court. The appeal is upon the judgment roll alone, and the evidence must be presumed to support the findings made, which included a finding that respondent was not a bona fide resident of the State of Nevada at the time he procured his divorce there from appellant. In the Williams case, supra, the decision was based upon an assumption that the petitioners there had a bona fide domicil in Nevada. In the present case the decision must be based upon an opposite assumption. In the Williams case, 317 U.S. 287, 63 S.Ct. 215, 87 L.Ed. 288, 143 A.L.R. 1273, the Supreme Court of the United States said: "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." Obviously, in the present case the situation is one wherein, contrary to the findings of the Nevada court, a California court has found that no bona fide domicil was acquired in Nevada. In deciding the Williams case, supra, the United States Supreme Court expressly pointed out that the issue there was not the same as that presented in Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804,--a case in which the Supreme Court of the United States held that a decree of divorce was not entitled to full faith and credit when it had been granted on constructive service by the courts of a state in which neither spouse was domiciled. Bell v. Bell, supra, sets forth the rule to be followed here upon the record presented. Respondent points out that appellant was personally served with summons and complaint in the Nevada divorce action, at her residence in Glendale, California. However, this fact does not alter the application of the rule in Bell v. Bell, supra. In Streitwolf v. Streitwolf, 181 U.S. 179, 21 S.Ct. 553, 45 L.Ed. 807, the wife was personally served in New Jersey, the state of her residence, with a copy of the summons and complaint in an action for divorce filed by her husband in the State of North Dakota. The United States Supreme Court in that case followed Bell v. Bell, supra, 181 U.S. 175, 21 S.Ct. 555, 45 L.Ed. 810, stating: "The facts in evidence warranted, and indeed required, the finding that the husband had no bona fide domicil in the state of North Dakota, when he obtained a divorce there; and it is not pretended that the wife had an independent domicil in North Dakota, or was ever in that state. The court of that state therefore had no jurisdiction." In the case here upon appeal the trial court found facts from which it must be concluded that the Nevada court had no jurisdiction over respondent’s action for divorce. Upon the facts found, the Nevada decree of divorce here in question was therefore not entitled to full faith and credit in the State of California; and the facts as found by the trial court here do not support a judgment in favor of respondent.
The principle upon which a decree of divorce rendered in another state may be impeached collaterally is recognized as well settled. Bruguiere v. Bruguiere, 172 Cal. 199, 202, 155 P. 988, Ann.Cas.1917E, 122; 13 P.2d 719, 86 A.L.R. 1321; Delanoy v. Delanoy, 216 Cal. 27, 34, Commonwealth v. Esenwein, 348 Pa. 455, 35 A.2d 335. That principle has not been disturbed or modified by the decision of the United States Supreme Court in Williams v. North Carolina, supra. Commonwealth v. Esenwein, supra. A bona fide domicil is still a requisite to the jurisdiction of an action for divorce.
The judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed.
YORK, P. J., and WHITE, J., concur.