Eriksen v. Eriksen

California Court of Appeal Mar 5, 1943 No. Civ. 12259Published

Before: Ward

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Holding. The court reversed the divorce judgment because the trial court erred in failing to require corroboration of residence and cruelty, and improperly excluded evidence regarding the plaintiff's residence despite the defendant's pleadings.

Issues

Whether the trial court erred in granting a divorce without corroboration of residence and cruelty.
Whether the trial court erred in excluding evidence regarding the plaintiff's residence despite admissions in the pleadings.
Whether the court had jurisdiction to award the husband's separate property and out-of-state real property.

Disposition. reversed

Quotations verified verbatim against the opinion

“it is admitted by plaintiff that the court erred and that the decree must be reversed.”

“Proof of residence is essential to jurisdiction, and a valid decree may not be founded upon a simulated residence.”

“Notwithstanding the pleadings, he should have been permitted to introduce evidence that plaintiff was not a resident of the county of San Mateo, State of California for the period provided in the statute.”

WARD, J.

Appeal by defendant from a judgment granting plaintiff a divorce on the ground of extreme cruelty, allotting to her all of the community property, much of the separate property of the husband, and also a parcel of real property in the State of Washington purchased during the existence of the marriage.

Plaintiff and defendant married in 1937 and during their residence in California accumulated several pieces of property. In March of 1941, they went to the State of Washington, where they had purchased a piece of ranch property. They took with them two loads of furniture, and defendant advised business acquaintances that he was giving up his business, that of contracting, in this state. The couple retained their California holdings, and rented their home furnished, the rental therefor being applied toward a mortgage on the property. Approximately six months later both returned to California, where plaintiff commenced divorce proceedings. The cross-complaint of defendant gave his residence, also, as California.

[534]

Defendant, appellant herein, argues that the court committed reversible error in considering the suit for the reason that there was no corroboration of plaintiff’s testimony that she had been a resident of this state for the required statutory period, also in refusing to allow defendant to prove that plaintiff was not a resident of the state for the required period of time, but of the State of Washington; and further contends that there was no sufficient evidence (for lack of corroboration) of extreme cruelty; that the court had no jurisdiction to make an award of the husband’s separate property, nor of realty situated in another state. For these reasons he contends that the judgment herein should be reversed and the lower court directed to enter judgment for him.

On the questions of lack of corroboration of the testimony concerning plaintiff’s residence, and of cruelty (Civ. Code, sec. 130), of the order awarding defendant’s separate property (Civ. Code, sec. 139), and the community property of the parties situated in another state, to plaintiff

(Taylor

Taylor,

Eriksen v. Eriksen

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WARD, J.

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