Smith v. Smith

WAITE, J. pro tem.

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Plaintiff brought this action for divorce and defendant filed a cross-complaint for annulment. Prior to the marriage which is the subject of this litigation, plaintiff was the wife of Kenneth P. Schmidt, whom she married in 1937, and by whom she had two children. Late in 1950 Schmidt left plaintiff and within a short time defendant, who resided in Pasadena, was visiting plaintiff rather frequently

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at her home in Newport Beach. Early in 1951, defendant proposed marriage and on April 10, 1951, plaintiff filed a complaint for divorce against Schmidt. Plaintiff and defendant frequently discussed the pending divorce action and defendant advised plaintiff on certain matters concerning it. Schmidt filed an appearance by counsel in the divorce matter, stipulated that the case be heard as a default, and plaintiff was granted an interlocutory decree of divorce from Schmidt on April 23,1951.

Meanwhile, rumors were circulating to the effect that Schmidt had divorced plaintiff in Mexico. Defendant told plaintiff that if such occurred, they could be married in Mexico before her California divorce decree became final; that he (defendant) had been married in Mexico before and was familiar with the legality of such marriages. On May 5, 1951, plaintiff and defendant were attending some boat races at Ensenada and were standing in a large group of people on the dock. In an adjacent group was plaintiff’s “former husband,” accompanied by his “new bride,” receiving congratulations on their recent marriage. Defendant said to plaintiff: “Since they have married down here, why don’t we get married down here, it is silly to wait.” Defendant made similar suggestions many times before plaintiff decided to marry him. About a week after the incident just described, plaintiff and defendant were discussing a story which appeared in a Los Angeles daily newspaper on May 11, 1951, stating that Schmidt and Mrs. Mary Beesemyer had been married in Mexico City on April 29. Further investigation disclosed that on April 19, 1951, Schmidt had secured a decree of divorce from plaintiff in Mexico. Shortly after the discussion concerning the newspaper article, plaintiff consented to marry defendant and on June 23, 1951, two months after plaintiff’s interlocutory decree from Schmidt had been granted, the parties were married in Ensenada. Plaintiff and defendant continued to live together as husband and wife until the date of their separation on October 31, 1954, and this action was filed on November 12, 1954.