Campbell v. Campbell

VAN DYKE, J.

On April 8, 1947, respondent herein as plaintiff commenced an action in the Superior Court of Yolo County wherein she sought separate maintenance from appellant. Appellant answered and filed a cross-complaint for divorce. On November 3, 1948, respondent herein filed an amended complaint wherein she also sought divorce. On March 28,1949, the local court entered its interlocutory decree wherein it adjudged respondent was entitled to a divorce from appellant on the ground of extreme cruelty. Appellant was ordered to pay to respondent the sum of $400 per month as alimony for her support and maintenance, beginning April 1, 1949, and continuing until the death or remarriage of respondent. On May 27th appellant took an appeal from that portion of the interlocutory decree awarding alimony.

[733]

The appeal was abandoned on June 23, 1949, and the decree then became final. In the meantime and on April 18th appellant went to Carson City, Nevada, and on June 16th filed in the First Judicial District of that state, in and for the county of Ormsby, his complaint for divorce upon the ground that the spouses had lived separate and apart without cohabitation for more than three years, this latter ground of divorce not being recognized in California, but available in Nevada. Substituted service of summons and complaint was made upon the defendant in that action. She did not appear. On July 21,1949, appellant was granted a divorce by the Nevada court. That decree contained no provisions concerning alimony nor did it refer to the California decree which had been previously rendered. On August 21,1950, respondent hereinomoved the local court for a supplementary judgment that she recover of appellant the sum of $2,000 accumulated unpaid alimony installments accruing in the months of April to August, inclusive. Appellant resisted • the motion, relying upon the Nevada decree. The motion was granted. The local court concluded that the Nevada decree, based upon the ground of noncohabitation, was valid, and dissolved the marriage between the parties as of the date of its entry. From the order and judgment that respondent, notwithstanding the dissolution of the marriage by force of the Nevada decree, recover the amounts ordered paid as alimony by the interlocutory decree of the local court, this appeal has been taken.

The force and effect of an interlocutory decree of divorce rendered under California’s dual divorce decree procedure was settled by our Supreme Court in the case of