Opinion
Page __
__ Cal.App.2d __305 P.2d 628Annelen SPELLENS, Plaintiff, Appellant and Respondent,v.Sol Carl SPELLENS, Defendant, Respondent and Appellant.Civ. 19338, 20236, 20318, 20975, 20986, 20987, 21015.California Court of Appeals, Second District, Second DivisionDec. 28, 1956Rehearing Denied Jan. 21, 1957.
Hearing Granted Feb. 19, 1957.
[305 P.2d 634] Leonard Horwin and Richard I. M. Kelton, Beverly Hills, for appellant and respondent Annelen Spellens.
Pacht, Ross, Warne & Bernhard, Isaac Pacht, Stuart L. Kadison and Harvey M. Grossman, Los Angeles, for respondent and appellant Sol Carl Spellens.
FOX, Justice.
The nine appeals arising out of this litigation present a great variety of legal questions in the field of domestic relations as well as in certain other phases of the law.
I. Résumé of the Facts.
Plaintiff (sometimes referred to as Annelen), married Robert Seymon in Germany in 1937. They came to America a year later. They had two children, born, respectively, in 1942 and 1947. Seymon was a traveling salesman with only a moderate income. It was necessary for Annelen to work, from time to time, as a dressmaker and seamstress to provide additional family support. Seymon declined to change to a type of employment which would permit him to spend more time at home with his family and increase his earnings. He assertedly associated with a girl friend and Annelen became involved with a married man. It appeals that during the last several years of their marriage the Seymons lived in a state of discord and unhappiness. Annelen had threatened on a number of occasions to divorce Seymon.
In October, 1950, defendant (also identified herein as Sol) told Annelen that he was in love with her and wished to marry her. She had known him as a family friend. He was foreign born, a man of substantial wealth, extensive business experience, and represented himself as having wide legal experience. He had been married and divorced twice and was the father of three children. He was approximately 69 years of age; Annelen was 35. Sol stated that he was aware of the unhappy state of affairs between her and her husband and of her husband's failure to adequately provide for his family. Sol told her she was entitled to a divorce and, if she would get a divorce and marry him, he would take care of her and her children and make her a partner in all of his property. Annelen advised her husband of Spellens' interest in her and the proposition he had made. She sought for some three months to have her husband improve his marital conduct, show her affection, provide a greater income, and thus save the marriage. Her efforts, however proved fruitless.
In January, 1951, Annelen decided she was going to divorce her husband and so informed Sol, who made arrangements for her to obtain an attorney, and provided her with funds therefor. She filed suit for divorce on grounds of extreme cruelty on February 21, 1951. After the action was filed, Spellens and Annelen conferred with Seymon regarding a property settlement. Spellens advised Annelen to waive her rights to any community property and all but nominal ($1 per month) alimony. She followed this advice. Spellens promised Annelen again that he would support the children as his own and provide them with an education and he would make her a partner in all of his property.
Annelen was granted an interlocutory decree of divorce on March 13, 1951. About that time Spellens represented to Annelen that upon the interlocutory divorce decree being granted, they could be legally married in Mexico and that such marriage would be valid everywhere. Spellens took Annelen to Mexico where he procured an attorney who advised her to the same effect. Four days after the interlocutory decree was granted, Spellens and Annelen returned to Mexico and interviewed the same attorney. Spellens showed the attorney Annelen's interlocutory decree of divorce.
[305 P.2d 635] After examining the document, the attorney confirmed his previous advice that they could immediately enter into a legal marriage there which would be valid everywhere. Thereupon Sol and Annelen went through a marriage ceremony performed by the attorney. They immediately began living together as husband and wife, with Annelen's children as part of the family. In November, 1951, Annelen became pregnant and had a miscarriage in January, 1952.
During the period the parties lived together Sol was guilty of extreme cruelty toward plaintiff that caused here great mental anguish. In March, 1952, Sol suggested that they separate. When Annelen objected, Sol told her that he had been advised they were not legally married. Plaintiff then consulted counsel, telling him the facts concerning her relationship with Sol. She was advised that the validity of her marriage lay in the field of unsettled law, but that he thought he could establish its validity on the theory that Sol was estopped to deny its validity. The original complaint was thereupon filed on March 24, 1952.
The parties separated for a brief period after this action was commenced but soon went back together, and lived together as husband and wife until Sol moved out on September 22, 1952.
In her first amended complaint plaintiff sought, inter alia, a declaration that the marriage was valid and a decree for separate maintenance, or, in the alternative, if the court determined the marriage was invalid, damages because of Sol's fraudulent representations and promises, and an award of the 'community property' of the parties.
Other causes of action were later added to this pleading.
At this state of the case, plaintiff sought support pendente lite, attorney's fees and costs. Her request was denied in its entirety. She appealed from the order. Plaintiff then moved for support pending the appeal, and for attorney's fees to prosecute the appeal, and for costs. The court denied her support but ordered defendant to pay counsel fees of $2,500 and the actual cost of reporter's and clerk's transcripts and printing of briefs. She has appealed from the order denying her support. Sol moved to vacate the order awarding attorney's fees and costs on appeal. His motion was denied. He then appealed from the order making the award and from the order denying his motion to vacate it.
In due course, the trial court determined that the parties were never legally married and that defendant was not estopped to deny that he is or ever had been married to plaintiff.
Thereupon plaintiff, with the court's permission, filed her second amended complaint. She alleged three causes of action: (1) for damages, both actual and punitive, for fraudulently inducing her to enter into a void marriage; (2) in the alternative, to enforce defendant's agreement that he would give her one-half of his property if she would marry him, and for an award to her of all the 'community property' the parties acquired while they lived together as husband and wife, i. e., from March 17, 1951, to September 22, 1952; and (3) as guardian ad litem of her two children, to recover damages based on defendant's promise to support and educate them. The trial court granted a nonsuit on plaintiff's causes of action for damages and to recover a one-half interest in defendant's property; also, on her suit on behalf of her children to recover for their support and education. Plaintiff challenges each of these rulings on this appeal. She also complains because the judgment did not provide for her support, attorney's fees and costs.
The court awarded plaintiff the entire quasi community property. Defendant's expense of $7,200 in maintaining plaintiff's two children from March 17, 1951 to September 22, 1952, was, however, deducted therefrom, leaving her a net of $10,052. Plaintiff attacks the ruling by which the expense of maintaining the children was charged against the quasi community property.
[305 P.2d 636] Defendant, on the other hand, appeals from that portion of the judgment which awards plaintiff quasi community property accumulated after March 20, 1952, or, in any event, after May 29, 1952.
It was on this date that plaintiff's attorney advised her that the validity of her marriage lay in the field of unsettled law.
Plaintiff was in court at a hearing on her order to show cause and heard Judge Mosk declare that he was convinced the parties were not and never had been husband and wife.
The facts with respect to Annelen's appeal from an order involving an item of costs and Sol's appeal from a judgment in a claim and delivery proceeding growing out of his and Annelen's affairs will be stated when we come to discuss the questions raised by those appeals.
The court found, inter alia, that Annelen believed and relied on Sol's promises and representations; that he intended that she should believe and rely on them; that she acted in good faith in going through the marriage ceremony and in living with Sol as husband and wife until September 22, 1952, and that up to that time she believed, in good faith, that they were legally married. The court further found that 'Spellens knew that he was not legally married to plaintiff and intended from the beginning that his marriage with plaintiff be invalid.'
II. Was Plaintiff Entitled to Support, Counsel Fees and Costs Pendente Lite?
'Fundamentally, as declared in Colbert v. Colbert, 1946, 28 Cal.2d 276, 279, 169 P.2d 633, 'The existence of the marriage is a jurisdictional prerequiste for the right of the court to order support, costs, and counsel fees pendente lite in an action for divorce or separate maintenance. [Citations.] And the invalidity of the marriage * * * may be shown at any time.' [Citation.]' Dietrich v. Dietrich, 41 Cal.2d 497, 502, 261 P.2d 269, 272. While the evidence to establish a disputed marriage need not be as complete and satisfactory upon an application for temporary support as that required on the trial of the issue Colbert v. Colbert, supra, 28 Cal.2d at page 280, 169 P.2d 633, the party seeking such relief, however, must make a reasonably plain case of the existence of the marriage. Dietrich v. Dietrich, supra, 41 Cal.2d at page 504, 261 P.2d 269; Bancroft v. Bancroft, 9 Cal.App.2d 464, 468, 50 P.2d 465; Hite v. Hite, 124 Cal. 389, 391-392, 57 P. 227, 45 L.R.A. 793; Carbone v. Superior Court, 18 Cal.2d 768, 772, 117 P.2d 872, 136 A.L.R. 1260. Measured by these principles, plaintiff failed to establish that she was entitled to pendente lite relief. As a matter of fact, she virtually established she was not entitled to such relief since the evidence incontrovertibly showed that she went through the marriage ceremony with defendant in Mexico only four days after receiving an interlocutory decree of divorce in this state from Seymon, who was still living. A marriage contracted under these circumstances is contrary to the express public policy of this state and is illegal and void from its inception. Civ.Code, sec. 61(1); Sullivan v. Sullivan, 219 Cal. 734, 736, 28 P.2d 914; Dominguez v. Dominguez, 136 Cal.App.2d 17, 20, 288 P.2d 195; In re Estate of Elliott, 165 Cal. 339, 343, 132 P. 439; Parmann v. Parmann, 56 Cal.App.2d 67, 69, 132 P.2d 851. In the Sullivan case, supra, the parties, as in the instant case, went through a marriage ceremony in Tiajuana after the woman had obtained an interlocutory decree but before she had secured a final decree of divorce. The court stated 219 Cal. at page 736, 28 P.2d at page 915: 'There can be no question that the attempted marriage was illegal and void under Civil Code,§§ 56 and 61.'
To supply the deficiency in her status as a legal wife, plaintiff argues that because of defendant's fraudulent representations and promises and her bona fide reliance thereon he should be estopped to deny the validity of their marriage in Mexico. In support of her position, plaintiff relies on a line of cases, of which Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d 1, [305 P.2d 637] 20 A.L.R.2d 1152, and Harlan v. Harlan, 70 Cal.App.2d 657, 161 P.2d 490, are representative, that hold in effect, that a party to a domestic relations action is estopped to deny the validity of a divorce he has secured, or that he has assisted the other party to procure from a former spouse, and on the strength of which the parties have later married. The estoppel doctrine declared in this line of cases has been applied to applications for relief pendente lite. Dietrich v. Dietrich, supra. Plaintiff contends that the principle of these cases should be extended to her situation and thus prevent defendant from asserting the invalidity of their marriage.
Absent aspects of public policy, plaintiff's argument would be persuasive. But we have a legislative declaration of public policy that covers this precise situation. It is in clear and unequivocal language. It states, section 61(1) Civil Code: 'In no case can a marriage of either of the parties during the life of the other, be valid in this state, if contracted within one year after the entry of an interlocutory decree in a proceeding for divorce. ' (Emphasis added.) This sentence was added to the section in 1903. The phrase 'in no case' is significant. The Supreme Court, in the Rediker case, supra, has indicated that in such circumstances estoppel does not come into play. The court stated 35 Cal.2d at page 808, 221 P.2d at page 8: 'Since the application of the doctrine of estoppel presupposes the entry of a final deree, cases involving remarriage after the entry of only an interlocutory decree [citations] are not in point.' Here, the Mexican 'marriage' was entered into four days after plaintiff received her interlocutory decree from Seymon and he was still living. To hold that defendant was estopped to deny the invalidity of the Mexican 'marriage' would be to circumvent the plain language of the statute and erode the public policy the legislature has established. Our courts have shown no disposition to ameliorate the unhappy status of the parties even by the application of equitable principles where the marriage occurs during the interlocutory period. Parmann v. Parmann, supra; Dominguez v. Dominguez, supra.
The New York courts have frequently considered the application of the doctrine of estoppel in factual situations similar to the one at bar. They have consistently rejected its application. Landsman v. Landsman, 302 N.Y. 45, 96 N.E.2d 81; Schein v. Schein, 169 Miss. 608, 8 N.Y.S.2d 463; People v. Kay, 141 Misc. 574, 252 N.Y.S. 518; Beaudoin v. Beaudoin, 270 A.D. 631, 62 N.Y.S.2d 920; Green v. Green, Sup., 124 N.Y.S.2d 432.
The following statement of the court in Green v. Green, supra, 124 N.Y.S.2d at page 433, is apposite to the problem at hand: 'In this action for a separation the defendant husband moves for summary judgment dismissing the complaint. The plaintiff and one Myers were married in 1912. In 1923 Myers obtained a judgment of divorce in this state against the plaintiff because of her adultery. Thereafter the plaintiff and the defendant were married in this state in 1935, although the plaintiff had never obtained permission of the court to remarry. Myers is still living. The plaintiff cannot prevail in this action for a separation because she is not married to the defendant. There was never any valid marriage between the parties and no doctrine of estoppel can be invoked against the defendant's making the claim of invalidity. The marriage was void as against our public policy and the conduct of the parties cannot change that.'
The Rediker and Harlan cases, in their holdings, illustrate the principle that one may be estopped to deny the validity of a final decree obtained prior to the marriage. But the language quoted from Rediker, supra, in harmony with the public policy announced in Civil Code section 61(1), negates the argument that an estoppel may operate to create a marriage or the right to future support where only an interlocutory decree has been obtained by one of the parties. Public policy forbids such an extension of the doctrine of estoppel.
[305 P.2d 638] Plaintiff argues that even though she has not established a marriage, the trial court should have awarded her support, counsel fees, and costs pendente lite as a putative spouse by analogy to the rights of a legal spouse. Pendente lite relief is granted to a legal spouse by virtue of the provisions of sections 137.2 and 137.3, Civil Code. To be entitled to an award under these sections the petitioning party, as we have previously pointed out, must make a reasonably plain showing of the existence of the marriage for this is 'a jurisdictional prerequisite' to the granting of such relief. Colbert v. Colbert, 28 Cal.2d 276, 279, 169 P.2d 633, 635. Since she is unable to meet this requirement there is no authority in the court to grant her pendente lite relief. This is simply one of the recognized differences between the rights of a legal spouse and a putative spouse. The fact that a putative spouse may be awarded an interest in the property accumulated during the putative marriage, by analogy to the community rights of a legal wife under the last cited code sections, does not strengthen her argument for pendente lite relief. The reasons for granting a putative spouse an interest in the accumulated property are to prevent the unjust enrichment of the other spouse and because of the contributive effort of the putative spouse. No such considerations are recognized in passing on an application for relief pendente lite by a putative spouse whose marriage occurred during the interlocutory period.
Plaintiff argues that in any event the trial court should have awarded her attorney's fees and costs pendente lite under Civil Code section 87, which authorizes such relief in actions for annulment. She asserts that her complaint included an action for annulment and that defendant's pleadings show that he also sought an annulment. The ruling, of course, must be viewed as of the time it was made and on the then state of the record.
It may well be that plaintiff's first amended complaint contained allegations indicating that she was entitled to an annulment but her pleading was not drawn upon that theory and she did not pray for such relief. She sought a declaration that the marriage was valid, separate maintenance, and damages, both actual and punitive, for defendant's fraud. Examination of the transcript (Rep. Tr. Vol. 2) of the hearing on the order to show cause fails to disclose any suggestion on behalf of plaintiff that she was entitled to counsel fees and costs pendente lite under section 87, Civil Code, on the theory that she was seeking an annulment. She is not entitled to have the order reversed upon this belated suggestion.
In support of her theory, plaintiff points to the allegations and prayer of defendant's answer to her first amended complaint. He alleged that the marriage was void and requested the court to so declare. But the significant fact is that the answer was not filed until more than ten days after the hearing and ruling on plaintiff's order to show cause. Obviously she cannot rely on that pleading to determine the character of the action.
It is apparent that the order of May 29, 1952, denying plaintiff any relief pendente lite must be affirmed.
III. Appeal No. 20318
Upon denial of her request for pendente lite relief plaintiff appealed. She thereupon cited defendant on a new order to show cause re support pending appeal, and attorney's fees and costs with which to prosecute her appeal. The court denied her support but granted attorney's fees and costs on appeal. Plaintiff appealed from the order denying her support and defendant appealed from the order granting suit money.
A. Plaintiff's Appeal
By stipulation, the evidence taken at the hearing on the pendente lite order to show cause was before the court on this hearing. No significant additional evidence on the questions of plaintiff's right to support was received. On this record the court denied plaintiff support pending appeal.
[305 P.2d 639] What we said above in affirming the order denying plaintiff support pendente lite applies with equal force to the order denying her support pending appeal. For those reasons the order must be affirmed.
B. Defendant's Appeal
The reasons which impelled the trial court to deny suit money pendente lite are not controlling on an application for such relief pending appeal. While the trial judge of course believed his previous ruling was correct, he nevertheless realized it might be upset by a reviewing court. Plaintiff's attorney had advised her 'on the basis of extensive research' that she had 'good cause for appeal.' The court was satisfied the appeal was taken in good faith. Plaintiff did not have the funds to finance the appeal. Defendant was amply able to provide them. In such circumstances it is not an abuse of discretion to award counsel fees and costs to enable the plaintiff to have the trial court's decision reviewed. Coleman v. Coleman, 23 Cal.App. 423, 426, 138 P. 362. Plaintiff, of course, 'was not required to demonstrate that her appeal will be successful; she was only required to show to the satisfaction of the lower court that the appeal was taken in the belief, and upon the advice of her attorneys, that she had good grounds to expect a reversal * * *.' Gay v. Gay, 146 Cal. 237, 240, 79 P. 885, 887. Plaintiff fully met this test. The court correctly awarded her suit money on appeal. The appeal from this order must be affirmed.
IV. Appeal No. 20236
Following the granting of counsel fees and costs on appeal, defendant moved to vacate the order. His motion was denied. He attempted to appeal from this latter order. The earlier order awarding suit money was, of course, appealable and we have reviewed it above. An appeal from an order denying a motion to vacate an appealable order does not lie if the grounds upon which the moving party sought to have the order vacated existed before its entry and were available on appeal therefrom. Colbert v. Colbert, 28 Cal.2d 276, 281, 169 P.2d 633; Litvinuk v. Litvinuk, 27 Cal.2d 38, 44, 162 P.2d 8. This is the precise situation here involved. The order denying defendant's motion to vacate the order granting attorney's fees and costs is not appealable and the purported appeal therefrom must be dismissed.
V. The Appeals From The Judgment
The trial court in effect found that the quasi community property earned during the period the parties lived together, that is, from March 17, 1951, to September 22, 1952, was $58,574 and that after deducting the quasi community expense there was a balance of $10,052, all of which was awarded to plaintiff. Included in such expense and therefore deducted in arriving at the quasi community income was the sum of $7,200 which was expended by Sol during said period in the support of Annelen's minor children.
Annelen is dissatisfied with the amount awarded her on two grounds. In the first place, she contends she was entitled to an additional award to cover the reasonable value of the services she rendered during the period in question. Her second contention is that Sol should have borne the expense of maintaining her children and that such expense should not have been included in the quasi community expense, thus reducing the net quasi community income and ultimately the amount awarded to her.
Sol, on the other hand, argues that the quasi community income should terminate either on March 20, 1952, the date on which Annelen's attorney advised her that the validity of her marriage lay in the field of unsettled law, or, in any event, on May 29, 1952, at which time Judge Mosk, in denying relief pendente lite, stated from the bench in her presence that in his opinion the marriage was not valid.
A. Quasi Contractual Recovery Properly Refused
We turn first to Annelen's complaint that although the trial court found she had [305 P.2d 640] rendered substantial services to Sol in the belief that she was his wife, she was denied compensation for the value of her services. She argues that the right to recover quasi community property and the reasonable value of the putative spouse's services are not alternative but supplemental rights. This argument, it would seem, fails to take cognizance of certain inherent and fundamental considerations relating to the doctrine of putative marriages.
Since no marriage de jure exists, there is no true community interest in property accumulated during the putative relationship of the parties as husband and wife. Coats v. Coats, 160 Cal. 671, 678, 118 P. 441, 36 L.R.A.,N.S., 844; Schneider v. Schneider, 183 Cal. 335, 341, 191 P. 533, 11 A.L.R. 1386. The correlative rights of the parties in such property derive from principles of equity and justice designed to effect a suitable division of property acquired through the joint efforts of both. Caldwell v. Odisio, 142 Cal.App.2d 732, 299 P.2d 14. To achieve this objective with optimum fairness, the rights of the parties are ordinarily assimilated to those subsisting under or incident to a valid marriage, and the property accumulated during the period of the communal venture is allocated in such propertion as the equities of the situation dictate. Turknette v. Turknette, 100 Cal.App.2d 271, 274-275, 223 P.2d 495; Vallera v. Vallera, 21 Cal.2d 681, 683, 134 P.2d 761; Coats v. Coats, supra. The woman who is a good-faith party to an invalid marriage earns her interest by her wifely services regardless of her proportionate contribution towards the acquisition of the quasi community property. Vallera v. Vallera, supra; Santos v. Santos, 32 Cal.App.2d 62, 65-66, 89 P.2d 164; Macchi v. LaRocca, 54 Cal.App. 98, 201 P. 143; Caldwell v. Odisio, supra, 142 Cal.App.2d 732, 299 P.2d 14. Where the invalid marriage has been procured by the fraud of the de facto husband, and the wife has rendered services in the course of their cohabitation, it has been held that she is entitled to quasi contractual recovery of an amount equal to the value of her services over and above the value of the support and maintenance received from the supposed husband. Sanguinetti v. Sanguinetti, 9 Cal.2d 95, 100, 69 P.2d 845, 111 A.L.R. 342; Mixer v. Mixer, 2 Cal.App. 227, 83 P. 273; Marsh v. Marsh, 79 Cal.App. 560, 250 P. 411. See Lazzarevich v. Lazzarevich, 88 Cal.App.2d 708, 200 P.2d 49. In all these latter cases, such recovery is permitted where there is either no quasi community property or the accumulated property is so meager in amount that distribution thereof would not constitute adequate compensation for the wife under the circumstances. Implicit in these decisions, of course, is the concept that the man would be unjustly enriched if he were allowed to profit from the uncompensated services of a woman disappointed in her belief that she had the legitimate status of a wife. However, whether the award made to the woman is that of a suitable division of the accumulated property of damages based on the contract implied in law, the recovery allowed stems from her contribution of services as wife, homemaker and helpmate. The goodfaith spouse enters not into a contract of employment but a relationship--not, unfortunately, the one she contemplated but yet analogous to the marital relation. The property acquired during this relation constitutes the fruit of the joint labors of the man and wife. Thus, where the allocation of the quasi community property provides a fair adjustment of the property rights between the spouses, it would be permitting a double recovery to compensate the wife in addition for the very services which have earned her the right to a share in the accumulations of the community. Such a result would transcend the restitutionary principles and distort the equitable foundations upon which have been established the doctrine of the putative spouse. When, therefore, as in this case, the spouse has received a substantial award of quasi community property in return for her conjugal contribution, and there is no showing of its inadequacy in relation to the value of her services, she is not entitled to receive in addition a quasi contractual recovery [305 P.2d 641] for services rendered. Not even a lawful wife possesses such rights.
However, as will be shown in the succeeding discussion, Annelen is not without other remedy by reason of Sol's fraud.
B--Nonsuit of Annelen's Fraud Count Improper
In the allegations of her first cause of action in her second amended complaint, Annelen set out facts purporting to state a cause of action against Sol for fraud in inducing her to enter what he represented was a valid marriage. The court found that Annelen was engaged to Sol and trusted him; that Sol represented to Annelen that if she married him in Mexico after obtaining an interlocutory decree of divorce in California the marriage would be valid everywhere, that Sol intended that Annelen should rely upon this representation and that she did so rely in marrying him; that Sol knew at all times that his marriage was not legal and that he intended from the beginning that his marriage with Annelen would be invalid; that as a result of this cohabitation, Annelen became pregnant and suffered a miscarriage which required medical treatment and surgery and caused her great pain and suffering. However, the court granted Sol's motion for nonsuit as to so much of the first cause of action which sought damages for Sol's fraud in inducing Annelen to enter into a void marriage. The court predicated its decision on the ground that the action was barred by section 43.5, subdivision (d), of the Civil Code, providing that a cause of action does not lie for 'breach of promise of marriage.'
Annelen's cause of action, which sounds in tort and is an action for deceit for Sol's fraud in inducing her to enter the marriage relation, is not proscribed by section 43.5, subdivision (d), of the Civil Code. Langley v. Schumacher, 46 Cal.2d 601, 603, 297 P.2d 977. The Langley case concerned the right of one induced to enter a voidable marriage to bring a cause of action against her former spouse for fraud. In that case, plaintiff procured an annulment of her marriage based upon her complaint that defendant had fraudulently induced her to marry him by promising to maintain a normal marital relationship although he secretly intended not to consummate the marriage. After the annulment was granted, plaintiff commenced an action to recover damages for the fraud thus practiced upon her. She alleged she had resigned from a paying job to marry defendant and that the latter fraudulently represented he would cohabit with her in a normal marital relationship. It was held that plaintiff's complaint stated a cause of action for fraud for an injury to a property rights.
The instant case is more aggravated. The court found, in effect, that Annelen had been tricked by Sol into entering a void marriage. It is the prevailing American view that an innocent woman who is induced by fraud and deceit to contract a void marriage and subsequently cohabits with her putative spouse in performance of her supposed conjugal obligations is entitled to recover damages in an action for fraud. Jekshewitz v. Groswald, 265 Mass. 413, 164 N.E. 609, 63 A.L.R. 525; Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 14 L.R.A.,N.S., 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Morrill v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411; Humphreys v. Baird, 197 Va. 667; Amsterdam v. Amsterdam, Sup., 56 N.Y.S.2d 19; Blossom v. Barrett, 37 N.Y. 434; Mashunkashey v. Mashunkashey, 189 Okl. 60, 113 P.2d 190; 2 Schouler on Marriage, Divorce, Separation & Domestic Relations, 6th Ed., sec. 1146, p. 1406. See Restatement of Torts, sec. 555. These authorities recognize that an innocent woman induced by misrepresentation to contract a void marriage suffers a wrong in the nature of a personal injury. A woman so imposed upon has undergone a radical change of status in the critical eye of organized society and has been enticed into a meritricious liaison with all the attendant personal humiliation, social obloquy and mental anguish accompanying such a situation. The principle upon which the authorities cited permit [305 P.2d 642] recovery of damages for fraudulently inducing one to enter a void marriage is recognized by way of obiter dicta in People v. Chadwick, 143 Cal. 116, 76 P. 884, a case in which defendant was prosecuted for sending a telegram to which he had forged the name of his fiancee's mother. The telegram induced in his fiancee, Norine Schneider, the belief that her mother had withdrawn her objection to Norine's marriage with defendant. It was contended on appeal that a marriage so induced did not constitute deceit since no financial loss would accrue to the person deceived. The court stated 143 Cal. at page 121, 76 P. at page 886: 'Where, as in this case, a person is induced to change her status from that of an unmarried to that of a married woman, with all of the duties and obligations pertaining to the changed relationship, if this result is accomplished by deceit, she has, within the law, been deceived; she has been induced to do that which, but for the false practice, she would not have done, and has been led to change her position in most vital respects--respects which may affect her financially as certainly as they affect her social and domestic status.' This is a wholesome principle. 'The injury to one's person by the fraud of another is quite as serious as an injury to his pocketbook.' Flaherty v. Till, 119 Minn. 191, 137 N.W. 815, 816.
We are in accord with the cases from other jurisdictions cited above which follow the line of reasoning expressed in Langley v. Schumacker, supra, and People v. Chadwick, supra, and hold that an action for deceit for fraudulently inducing a party to enter into a void marriage may be maintained. Considerations of public policy would not militate against recovery where the situation is such that no moral turpitude can be imputed to plaintiff and any illegal conduct on her part was induced solely by defendant's fraud. Mixer v. Mixer, 2 Cal.App. 227, 231, 83 P. 273. As stated in Work v. Campbell, 164 Cal. 343, 348, 128 P. 943, 945, 43 L.R.A.,N.S., 581; 'It has been held that, where the fraudulent representation is intended to create and actually does create in the mind of the party a belief that under the circumstances represented the act which he is induced to do is neither illegal nor immoral, he may recover the damages he has sustained, even though a statute makes the act a criminal offense. [Citations.]'
Sol urges that Annelen, having accepted an award of quasi community property as a putative spouse, has made an election of remedies and may not also recover on the theory of fraud. It is settled that there are three essential elements of the doctrine of election of remedies, (a) the existence of two or more remedies, (b) inconsistency between the remedies, and (c) choice, with knowledge of the facts, of one of the remedies; and if any one of these elements is absent, the result of preclusion does not follow. Schumm v. Berg, 37 Cal.2d 174, 189-190, 231 P.2d 39, 21 A.L.R.2d 1051; Verder v. American Loan Society, 1 Cal.2d 17, 33, 32 P.2d 1081. It is clear that there is no inconsistency between a suit to settle the propery rights between parties who have entered into a void marriage and an action for damages for fraudulently inducing one to enter the void marriage. In the first case, the putative spouse merely obtains an adjustment of property rights acquired during the existence of the quasi community, a right founded upon her status as a participant in a marital relationship in the good faith belief of its validity. Vallera v. Vallera, 21 Cal.2d 681, 683, 134 P.2d 761; In re Estate of Krone, 83 Cal.App.2d 766, 769, 189 P.2d 741. In the second case, she sues in tort for the redress of wrongs personal to herself,--for having been fraudulently induced to change here status and position, for humiliation, disgrace, or mental anguish sustained in entering a void, if not bigamous, marriage, for the value of the comfort, love and society she has bestowed on the putative husband, or, as appears in the case at bar, the physical injuries and suffering caused by her miscarriage during her pregnancy--all of which flow directly from the fraud perpetrated by defendant. Thus Annelen had two independent but consistent causes of action giving rise to distinct [305 P.2d 643] remedies which she was entitled to pursue. Bohn v. Watson, 130 Cal.App.2d 24, 36, 278 P.2d 454. In this connection, we deem it of interest to refer to section 555 of the Restatement of Torts, which reads: 'One who by conscious misrepresentation that he is free to contract a lawful marriage or by a failure to disclose a bar thereto induces a woman to live with him as his wife is liable to the woman for any harm suffered because she has been induced to live with him in a meretricious relation.' Comment (a): 'Under the rule stated in section 152 of the Law of Restitution a woman who is induced to live with a man as his wife in reliance upon fraudulent misrepresentations that he is free to contract a lawful marriage or by his failure to disclose a bar thereto, is entitled to recover from the man the value of the services which she rendered during the continuance of the meretricious relationship. The rule stated in this Section gives to such a woman a right to recover, in addition, damages to compensate her for the humiliation which she has sustained and for the harm done to her social standing.'
The court found that when Sol and Annelen were engaged to be married, Annelen reposed trust and confidence in him and relied on Sol's statement, which he knew to be false, that their marriage in Mexico would be valid everywhere. Where parties occupy a confidential relationship, deception as to the state of the law constitutes a fraudulent representation. Terry v. Bender, 143 Cal.App.2d 198, 300 P.2d 119. The record shows that Annelen justifiably relied on Sol's misrepresentations to her detriment. The essential elements of fraud thus appearing and there being no statutory bar to the action, we conclude, for the reasons discussed, that it was error to grant a nonsuit on the cause of action for fraud.
C--The Property and Support Agreement Unenforceable
One of Annelen's causes of action was to recover on an oral contract under which Sol agreed to divide his property with her and support her children if she married him. In this connection, Annelen testified that she and Mr. Seymon had an unsuccessful marriage and that she had contemplated divorce on two occasions. Her husband showed no affection for her and the children, according to her testimony, and did not work energetically enough to adequately support the family. In October, 1950, Sol and Annelen met for lunch, at which time Sol professed his love for her and promised that if she would marry him he would make her a partner in his business and take care of her children as though they were his own. Annelen told her husband of Sol's proposal and asked him to behave with greater affection and consideration so their 13-year marriage might survive. She testified Mr. Seymon brushed the matter off and remained indifferent as a husband and father. In February, 1951, she engaged an attorney with Sol's held and filed an action for divorce within four months after Sol's proposal. Shortly after the divorce action was filed, Sol advised Annelen to waive alimony and her rights in the community property and again promised that he would take care of her and her children and make her a partner in everything he had if she married him.
At the conclusion of Annelen's case in chief, the trial court granted a motion for nonsuit on Annelen's cause of action for recovery on this agreement, pronouncing the contract promotive of divorce and hence unenforceable as against public policy. Annelen appeals from this judgment. The appeal is without merit.
It is the policy of this state to foster and protect marriages and to encourage spouses to live together, especially where there are minor children involved. Hill v. Hill, 23 Cal.2d 82, 93, 142 P.2d 417; Moss v. Moss, 20 Cal.2d 640, 128 P.2d 526, 141 A.L.R. 1422. In Moss v. Moss, supra, the Supreme Court held that an agreement supported by a consideration designed solely to effect the severance of the marriage relationship is abhorrent to public policy and therefore unenforceable. The authorities are uniform in support of the [305 P.2d 644] principle of refusing to sanction agreements which have a direct tendency toward dissolving marriages. The Restatement of Contracts encapsules this policy in two sections. Section 586 reads: 'A bargain to obtain a divorce, or the effect of which is to facilitate a divorce, is illegal.' Section 588 provides: 'A bargain by a married person to marry another than his present spouse on the death or divorce of the latter is illegal.' In 17 Am.Jur., sec. 14, p. 1756, we find the following statement: 'The rule is well established that any agreement whether between husband and wife or between either and a third person intended to facilitate or promote procurement of a divorce, is contrary to public policy and void.' (Italics added.)
This pronouncement of public policy is adhered to in this state. In Smith v. McPherson, 176 Cal. 144, 146, 167 P. 875, L.R.A.1918B, 66, a breach of promise case, the court said: 'Appellant contends that, as the original promise of marriage was given by defendant at the time defendant was a married man, and must necessarily rest for its fulfillment upon the basic consideration of securing a divorce, the plaintiff's whole case must fall to the ground. It is unquestionably true that a promise given under such circumstances is against the manifest policy of the law, and therefore wholly void. [Citations.] Nor will this court in the slightest modify so salutary a principle.' In Hillbert v. Kundicoff, 204 Cal. 485, 486, 268 P. 905, the court reiterated this rule, citing Smith v. McPherson with approval. That this is the prevailing rule appears from numerous cases including the Smith case, cited in an annotation in 130 A.L.R. 1008. One of the reasons for holding void agreements of this class is pointed out by the annotator at page 1011, where he says, '* * * the fact that such an agreement encourages divorce is obvious.'
Such being the settled law, the trial court correctly refused to enforce the contract sub judice. Patently the agreement between Sol and Annelen was intended to encourage the obtaining of a divorce and was necessarily promotive of the dissolution of the marriage relationship between Annelen and her husband. It was manifestly aimed at stimulating Annelen to divorce Seymon, for unless she bent her energies to obtain a divorce she could not marry Sol, and only by her success in obtaining such a result would she be free to marry Sol and receive the benefits of the contract. The natural and inevitable tendency of such a contract as that between Annelen and Sol is the destruction of a marital relationship. It must therefore receive the disapprobation of the courts.
Annelen seeks to avoid the impact of these principles by reliance on Smith v. McPherson, supra, asserting that Sol renewed his promise shortly after she filed her action for divorce based on a fully matured cause of action. However, in the Smith case, the promises were renewed years after defendant was divorced and his former wife had remarried and when there was no obstacle to marriage. In the instant case, when Sol allegedly renewed the promise, in February, 1951, Annelen was still married to Seymon, with only a divorce complaint on file. There was still time for them to compose their differences and become reconciled as they did in 1942 and in 1947. The possibility of a reconciliation between a husband and wife after separation should not be inhibited or frustrated by the conduct of third parties. When a stranger to the marriage commits himself to an obligation in the wife's favor conditioned upon dissolution of her existing marriage relationship such an agreement is repugnant to the public interest and against the public policy of this state. It can hardly be doubted that the arrangement between Sol and Annelen precipitated the destruction of the latter's existing conjugal relationship. Annelen moved to sunder a marriage of 13-years' standing within four months after first hearing Sol's beguiling proposal. Annelen's release from the trammels of a current marriage being the sine qua non of the contract sued upon, it was clearly obnoxious as a bargain between a third party and a [305 P.2d 645] married person in derogation of the latter's marriage status.
There is no merit to the additional argument that the contract is enforceable at least to the extent of requiring Sol to support Annelen's children, who were not parties to the unlawful contract. It plainly appears that the contract sued upon was entire and indivisible, each and every part being material and nonseverable. The essence of the agreement was that Annelen divorce Seymon and marry Sol. This underlying illegality of the bargain tainted the transaction as a whole, making no part of its obligations enforceable. Heaps v. Toy, 54 Cal.App.2d 178, 128 P.2d 813,--in which a contract for support of plaintiff and her children was held unenforceable in its entirety because founded on a consideration against public policy; Prost v. More, 40 Cal. 347, 348; Conte v. Busby, 115 Cal.App. 732, 734, 2 P.2d 458.
The cases relied on by Annelen do not uphold agreements in any sense similar to the one here involved. In Howard v. Adams, 16 Cal.2d 253, 105 P.2d 971, 130 A.L.R. 1003, plaintiff contemplated a divorce from her husband in California. Plaintiff's aunt, fearful that the publicity might injure her business and social connections, promised to support plaintiff and her children if plaintiff procured her divorce in Nevada instead of California. By doing so, plaintiff could not obtain alimony and child support from her husband. The agreement of the aunt was enforced. It did not have divorce as its object, but rather the situs of a divorce already decided upon. Hill v. Hill, 23 Cal.2d 82, 142 P.2d 417, announces the proposition that a property settlement agreement between spouses contemplating a divorce upon failure of their marriage is not a contract contra bonos mores. Krieger v. Bulpitt, 40 Cal.2d 97, 251 P.2d 673, was a case in which defendant, who had been sued for divorce, engaged plaintiffs as his attorneys in defending the action. The fee was contingent on the value of the property obtained for defendant. The court upheld this agreement because 'it did not have for its object the dissolution of a marriage. Rather * * * plaintiffs undertook the defense of a divorce action already instituted by the client's wife and the rendition of services for the protection of his interests upon any division of the community property.' 40 Cal.2d at page 100, 251 P.2d at page 674. In Norman v. Burks, 93 Cal.App.2d 687, 209 P.2d 815, plaintiff and his wife had entered into a property settlement agreement and the wife had commenced a divorce action. At this time plaintiff and defendant, a young woman, became very friendly and plaintiff caused title to a dwelling and expensive furnishings to be placed in her name. However, defendant advised plaintiff she was marrying another man--and did so. Plaintiff sued for recovery of the house, furnishings and a ring he had given defendant. He prevailed on the theory that defendant held the property for plaintiff, who had paid therefor, on a resulting trust. It is clear none of these cases is analogous to the instant one, which directly precipitated divorce proceedings and induced permanent estrangement of Annelen and her husband.
D--Support of Children a Proper Community Expense
The simple answer to Annelen's argument that Sol should have borne the expense of supporting her children out of his separate property is that they were not his children, and he was therefore under no legal duty to support them. They were her children and, as between her and Sol, the obligation to support her children was hers.
The children were, of course, a part of the family. Their maintenance was therefore a family expense. 'Unless the contrary is shown, 'the law presumes that money used in the maintenance of the family is drawn from community funds before there is encroachment on separate property.'' Logan v. Forster, 114 Cal.App.2d 587, 601-602, 250 P.2d 730, 738; In re Estate of Tompkins, 123 Cal.App. 670, 675, 11 P.2d 886; In re Estate of Cudworth, 133 Cal. 462, 468, 65 P. 1041. The court obviously followed this rule in charging the [305 P.2d 646] maintenance of the children to quasi community expense. There was no error in the court's ruling on this aspect of the case.
Plaintiff complains because the judgment did not award her support, attorneys' fees and costs. We need not elaborate on this point in view of our previous discussion. Suffice it to say here that the decision is proper since it was established at the trial on the merits that the marriage was void from its inception. Civil Code sec. 61(1); Rediker v. Rediker, 35 Cal.2d 796, 808, 221 P.2d 1, 20 A.L.R.2d 1152. She failed to establish the jurisdictional prerequisite for such relief. See Colbert v. Colbert, 28 Cal.2d 276, 169 P.2d 633.
E. Sol's Appeal from Portion of Judgment
The trial court found that 'at all times from and after March 17, 1951, to and including September 22, 1952, plaintiff believed in good faith that she was legally married to defendant.' The trial court therefore used this period as the basis for determining the amount of quasi community property. Sol contends, however, that the evidence does not support this finding. His first argument is that Annelen could not entertain such belief after the conference with her attorney on March 20, 1952, at which time he advised her that the validity of her marriage lay in an unsettled area of the law. Her attorney also advised her that 'he thought he could establish an estoppel operating against defendant's and thus establish the validity of the marriage. When cross-examined with reference to her attorney's advice, she testified, 'I took his word for it.' Whether, following this conference, she believed in good faith she and Sol were legally married was a question of fact. In view of her attorney's advice and her reliance on him it was a reasonable inference that she believed in good faith that they were legally married. Certainly we cannot say, as a matter of law, that she did not so believe after that interview.
Sol argues that, in any event, there is no evidence to sustain the finding of Annelen's bona fide belief in the validity of the marriage after she heard Judge Mosk declare from the bench that she and Sol were not and never had been legally married on May 29, 1952, when the judge denied her any pendente lite relief. It will be noted, however, that she filed notice of appeal from the order five days after it was made. Upon being cross-examined about her knowledge that the judge had expressed the opinion that the marriage was not valid she stated: 'I believed at the time I could prove my marriage to be valid * * *.' Not without significance is the fact that at the hearing on the order to show cause in August, 1952, the judge conceded the possibility that he might be in error and that his previous ruling might be upset on appeal; determined that the appeal was taken in good faith; and ordered Sol to pay counsel fees and costs for its prosecution. On cross-examination of plaintiff the Reporter's Transcript discloses the following:
'Q. Nevertheless, despite the fact that you filed this lawsuit against Mr. Spellens, you continued to have sexual intercourse with Mr. Spellens? That is correct, is it not?
'A. Yes, because in my was of thinking, we were married.
* * *
* * *
'Q. And that continued for some months, did it not?
'A. Yes.'
During the course of the trial on March 4, 1953, Annelen testified: 'I am still sure I am married to Mr. Spellens.' These facts and circumstances and this testimony amply support the finding that Annelen believed in good faith that she and Sol were legally married up to the date of their final separation on September 22, 1952.
VI. Support and Suit Money on Appeal from Judgment
Following the entry of judgment, plaintiff sought an order for support pending her appeal from the judgment and counsel fees and costs with which to prosecute such appeal. Her request was denied in its [305 P.2d 647] entirety. She appealed from that order (Civ. No. 20987). The case having been tried on its merits and the invalidity of the marriage from its inception having been established, the ruling of the court was correct. As previously noted in connection with a similar request on the part of plaintiff, she failed to established the jurisdictional prerequisite for such relief. See Dietrich v. Dietrich, supra, 41 Cal.2d 497, 502, 261 P.2d 269.
Furthermore, plaintiff previously had been allowed suit money to test the correctness of the court's preliminary order which denied her pendente lite relief. Implicit in that appeal was the validity of the marriage. That question is the heart of her appeal from the judgment. To have allowed her suit money on appeal from the judgment would be to provide her with such funds twice to test the same question. This order must, therefore, be affirmed.
VII. Annelen's Appeal Re Costs
In a proceeding after judgment, Sol moved to re-tax costs. His motion was directed to an item of $220.60 which Annelen had paid for the reporter's transcript of the proceedings for a certain period. Such an item was taxable if the court had made an order therefor. The only question was whether in fact such an order had been made during the course of the trial, which took place almost a year previous to the hearing. Counsel for defendant mistakenly represented to the court that no such order was made. Counsel for plaintiff was under the mistaken belief that the court had not formally ordered the transcript. The judge also had apparently forgotten the making of the order. As a consequence, costs were re-taxed, eliminating the item in question.
The mistake was discovered when plaintiff's attorney received copies of the minute orders of the trial prepared for the appellate record. These minutes were received by counsel on July 16, 1954. An entry on July 17, 1953, stated: 'A daily transcript is ordered.' Annelen promptly moved, under section 473, Code of Civil Procedure, to be relieved of the order taken against her by mistake and inadvertence. The motion was made well within the six months' period required by law. At the hearing the court stated: 'If the law permits, the court is presently disposed to correct what appears to be an error, in view of the minute order. If it does not permit, the motion will be denied.' The court accepted the minute order as correct.
Counsel present the question of whether this was a judicial error, or one due to inadvertence or mistake. Regardless of what the law may be as to correction of judicial errors in this manner, it appears that the ruling operates upon a mistake of fact entertained by both counsel as well as the judge and the motion should have been granted.
The record is clear that counsel for both parties mistakenly believed no order had actually been made for a transcript and the matter had inadvertently escaped the judge's mind. Consequently, the order was the result of inadvertence and mistake of fact. A party may have relief in equity from the consequences of his mistake of fact. Vartanian v. Croll, 117 Cal.App.2d 639, 646, 256 P.2d 1022; Soule v. Bacon, 150 Cal. 495, 497, 89 P. 324. And where he would be entitled to such relief in an independent suit in equity he would have made sufficient showing for relief on a motion under section 473. Vartanian v. Croll, supra.
Watkins v. McCartney, 70 Cal.App. 137, 232 P. 982, is somewhat analogous to the case at bar in that the court made an order unaware of a prior order made by another judge. On August 5 Judge Willis ordered that a writ of execution issue; on August 8, Judge Reeve ordered that the writ of restitution be recalled. On August 9 Judge Reeve ordered that 'The order heretofore inadvertently entered on August 8, 1922, is hereby vacated and set aside and the order of August 5, 1922, is restored to full force and effect * * *.' The 'inadvertence' referred to 'arose out of the fact that Judge Reeve did not know and was not advised [305 P.2d 648] at the time of signing the order of August 8th that relief of similar effect had been denied by Judge Willis on August 5th.' 70 Cal.App. at pages 142-143, 232 P. at page 984. The court held that the facts entirely justified that order of August 9th and that it was in the proper exercise of the court's discretion.
The fact that the order taxing costs was appealable does not preclude the court from setting it aside under section 473. Harth v. Ten Eyck, 16 Cal.2d 829, 832, 108 P.2d 675.
The order denying plaintiff's motion to set aside the court's previous order retaxing costs in the sum of $220.60 for the reporter's transcript must be reversed with directions to grant plaintiff's motion.
VIII. The Claim and Delivery and Abuse of Process Judgment.
On about December 3, 1952, following the final separation of the parties, Sol, on the advice of his counsel at that time, brought a claim and delivery action to recover a Cadillac automobile in Annelen's possession as well as certain furniture and furnishings located in Annelen's residence (which they had formerly occupied as putative spouses). Issue as to the ownership of this property had been joined by these parties in their domestic relations action which was the pending and awaiting trial. In the caption of the claim and delivery complaint Annelen was designated as 'Annelen Seymon.' At the same time, Sol caused a writ of claim and delivery to be issued directing the Sheriff of Los Angeles County to take possession of the property in question.
Deputies from the sheriff's office came to Annelen's residence at approximately 9:00 a. m. and served her with the writ. They then proceeded to place their seal upon the Cadillac and commenced an inventory of the furnishings. Sol and his attorney visited the premises while these events were taking place. Sol told Annelen she could retain the property if she would abandon the domestic relations proceedings in which the parties were involved. However, Annelen immediately notified her counsel of the attempted removal. Shortly thereafter, Annelen's attorney obtained an order of court restraining further proceedings on the claim and delivery writ pending trial of the domestic relations action. The order was served on the deputies at about 12:30 p. m., following which they left the premises.
Five days later, Annelen filed her answer to Sol's claim and delivery action, as well as a cross-complaint, later amended, for damages on the theory of abuse of process.
The trial court, after finding the facts above recited, also found that the furniture was community property and that the Cadillac was the separate property of Annelen. It found (1) that Sol acted maliciously in causing the issuance of the writ of claim and delivery knowing that the question of title to the property was in issue in the marital proceeding; (2) that his designation of Annelen as 'Annelen Seymon' in the claim and delivery action was the only occasion since the putative marriage in which Sol described her otherwise that by the name Annelen Spellens and the use of such nomenclature was likely to mislead, so that it would not be known that the same property was in issue between the parties in the domestic relations action; and (3) that one of Sol's purposes in the use of the writ was to compel Annelen to give up the said action.
The court further found that by reason of Sol's conduct, Annelen suffered mental anguish, emotional stock and embarrassment and was so damaged in the sum of $500; that Sol was guilty of oppression and malice in abusing the process of court in connection with the writ of claim and delivery, entitling Annelen to $1,000 as exemplary damages; and that Annelen was forced to incur attorney's fees both to obtain the restraining order and in defending the claim and delivery action, the reasonable value of which was $1,500. Judgment was [305 P.2d 649] entered against Sol on the claim and delivery action and for Annelen on her amended cross-complaint in the amount of $3,000, consisting of $500 actual damages, $1,000 exemplary damages, and $1,500 attorney fees.
Annelen's counsel testified (1) that the value of his service in connection with the obtaining of a restraining order against the sheriff were reasonably worth $500; and (2) his services in contesting Sol's claim and delivery action were reasonably worth $1,000.
One further proceeding need be noted. At the time he procured the writ of claim and delivery, Sol deposited a cash undertaking in the sum of $16,000. After entry of the judgment, Sol moved to exonerate the undertaking. The court ordered exoneration only to the extent of $12,000, and directed the release of this amount.
In connection with his appeal from the above judgment, Sol contends, in effect, that he is entitled to a return of his undertaking since there was no 'taking' of property by the sheriff which would authorize recovery on the undertaking. He contends that Annelen's possession of the chattels to which the writ was directed was never disturbed. This argument cannot prevail in the light of the evidence. The record discloses that the sheriff's deputies entered Annelen's residence and took control of her automobile by placing the seal of their office upon it. By so doing, they physically exerted their official dominion over this property and brought it into custodia legis. Until it was redelivered upon divestment of the sheriff's control, it was in his keeping and Annelen was ousted of her immediate right to possession. This constitutes a sufficient taking within the meaning of the claim and delivery statute, section 512 of the Code of Civil Procedure. See Prescott v. Farquhar, 135 Cal.App. 469, 27 P.2d 390.
Lamb v. National Surety Co., 108 Cal.App. 297, 291 P. 647, is obviously inapplicable. In that case the sheriff at no time made any attempt to take possession of the property. As stated at page 299 of 108 Cal.App., at page 648 of 291 P.: 'No affidavit or demand was deposited with or delivered to the sheriff, nor did not latter at any time have possession of the car.' In this case, Sol directed the sheriff to take the property described in the complaint, and the sheriff did, in fact, affix the indicia of his office to the car and assumed control over it. He did not relinquish such control until served with the restraining order.
The point next presented is a consideration of the appeal from the judgment in Annelen's favor founded on Sol's alleged abuse of process. An examination of the authorities discloses that the gravamen of the action is established when there has been a perversion of court processes to achieve some objective which the process was not intended by law to accomplish or which seeks to compel the party against whom it is used to do some collateral thing which he could not legally be compelled to do. Tranchina v. Arcinas, 78 Cal.App.2d 522, 524-525, 178 P.2d 65. As noted in the Restatement of Torts, section 682, and cited with approval in the Tranchina case, supra, the action will lie even though the process has been validly issued upon proof of an ulterior purpose and a wilful act in the use of the process not proper in the regular conduct of the proceeding. These principles are supported by a wealth of authorities. Hall v. Field Enterprises, D.C.Mun.App., 94 A.2d 479; Italian Star Line v. U.S. Shipping Bd. E. F. Corp., 2 Cir., 53 F.2d 359, 80 A.L.R. 576; Ash v. Cohn, 119 N.J.L. 54, 194 A. 174; Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229; Ellis v. Millen Hotel Co., 192 Ga. 66, 14 S.E.2d 565; Coplea v. Bybee, 290 Ill.App. 117, 8 N.E.2d 55; 3 Restatement of Torts, sec. 682. In the second edition of his thesis on Torts, Dean Prosser epitomizes the matter thus: 'The essential elements of abuse of process, as the tort had developed, has been stated to be: first, an ulterior purpose and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding * * * The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself * * * by the use of the [305 P.2d 650] process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any use of the process itself, which constitutes the tort.' (Pp. 668-669.)
Applying these tests and the law stated in the Transchina case, supra, it becomes unnecessary even to dwell on the circumstances, however worthy of stricture, that in procuring the writ, Sol designated Annelen under the surname 'Seymon' and acted at a time when title to the property was in issue in a separate proceeding. Assuming the writ was properly issued, the trial court was justified in concluding that Sol had misused the legal process of the court. The trial court found that one of Sol's purposes in procuring the writ of claim and delivery was to cause Annelen to discontinue her domestic relations action. The employment of such writ as an instrumentality for exerting pressure to obtain a collateral advantage to which a party is not legally entitled is precisely the type of coercive conduct which the cases have denounced as the use of legal process for an improper purpose. Sol's misuse of the provisional remedy of claim and delivery by attempting to accomplish a result not lawfully obtainable under it constituted an abuse of the process of the law and was actionable as such in view of the injury caused. 'Once the tort is proved, the damages recoverable are in general much the same as in cases of malicious prosecution.' (Prosser on Torts (2d ed.), p. 669.) Damages recoverable for abuse of process are compensatory for the harm proximately flowing from the wrong and recompense for special damage such as mental suffering is a legitimate element of damage. Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15, 17; Saliem v. Glovsky, 132 Me. 402, 172 A. 4, 8; 1 Am.Jur., sec. 38, p. 41. Counsel fees incurred in attempting to protect one's self from an abuse of process is likewise a proper item of damage, Barnett v. Reed, 51 Pa. 190; 72 C.J.S., Process, § 124, p. 1203, but only to the extent that such expense relates to services required to obtain relief from the misused process. See Stevens v. Chisholm, 179 Cal. 557, 178 P. 128. In the case at bar, Annelen's counsel testified that $500 was the reasonable value of his services in connection with his procurement of a restraining order against further proceedings under the writ. However, the court, in addition to allowing this amount as damages, also awarded counsel fees of $1,000. This award was the expense incurred in defending the claim and delivery action. This was error, since the defense of the principal action was not required to relieve Annelen from the effects of the process, which had been fully accomplished under the restraining order. Attorney's fees may not be awarded as damages in actions for the recovery of personal property. LeFave v. Dimond, 46 Cal.2d 868, 870, 299 P.2d 858. In addition to compensatory damages, the court awarded $1,000 as exemplary damages. Under Civil Code section 3294, punitive damages may be awarded where malice, fraud, of oppression exists. Livesey v. Stock, 208 Cal. 315, 321, 281 P. 70; Alterauge v. L. A. Turf Club, 97 Cal.App.2d 735, 739, 218 P.2d 802. In view of the finding that Sol was actuated by malice and was guilty of oppression in abusing the process of the court, the court was warranted in assessing exemplary damages.
The judgment in this matter should be modified by reducting the amount allowed for attorney's fees by $1,000, and as so modified affirmed.
IX. Disposition of Appeals
The appeal from the order denying defendant's motion to vacate the order of August 29, 1952, awarding plaintiff attorney's fees and costs on appeal is dismissed (Civil No. 20236).
The order re-taxing costs is reversed with directions to grant plaintiff's motion (Civil No. 21015).
The judgment (SMD-9365) is reversed with directions to determine the single question of whether the fraud (already found) damaged plaintiff more than the amount [305 P.2d 651] awarded to her as quasi community property, and, if so, to increase the recovery by such excess, but no more, and to enter a new judgment accordingly (Civil No. 20975).
The judgment in Civil No. 20986 (Claim and Delivery and abuse of process--Superior Court No. 606810) is modified by reducing the award for attorney's fees from $1,500 to $500 and correspondingly reducing the amount of the judgment from $3,000 to $2,000. As so modified the judgment is affirmed.
All other orders appealed from are affirmed.
MOORE, P. J., and ASHBURN, J., concur.