Cleland v. Cleland

VALLÉE, J.

Appeal by Helen Cleland from an order granting Florence Cleland a family allowance. Whether there is any substantial evidence to support a finding that Florence Cleland is the widow of George Cleland is the question.

[19]

The material facts are these:

1. February 3, 1919—George and Florence were married in San Bernardino, California. They lived together until April, 1931.

2. April 26, 1931—George deserted and abandoned Florence.

3. May 23, 1936—George obtained a decree of divorce from Florence in Juarez, State of Chihuahua, Republic of Mexico. The decree did not contain a formal “declaration of execution. ’ ’

4. May 25, 1936—George married Helen in Mexico.

5. George and Helen lived together as man and wife until George’s death.

6. January 17, 1951—George died.

The court found: the law of the State of Chihuahua required that a decree of divorce be “declared executed”; if such a decree did not contain a formal “declaration of execution” it was not a final decree; the decree obtained by George did not contain a “declaration of execution” and was not a final decree; it was and is void; except for that decree, no decree dissolving the marriage of George and Florence has been rendered or entered by any court; the marriage of George and Helen was and is void. The court concluded that Florence is the surviving widow of George.

Helen assails the findings that under the laws of Chihuahua a final decree of divorce must contain a formal “declaration of execution” and that her marriage to George was void.

Florence did not appear in the action in Chihuahua. Dr. William B. Stern, foreign law librarian of the law library of the county of Los Angeles, qualified as an expert on the laws of the State of Chuhuahua. His testimony, epitomized, was as follows:

The law of Chihuahua, at the time in question, provided: The judge, before whom the cause was heard, announced his decision, and rendered his decree; immediately after the decree was rendered it was communicated to the parties present; if a party was not present, it was posted; such communication and posting constituted service of the decree; the parties had 24 hours after such service in which to appeal; after the time for appeal had elapsed, if no appeal was taken, the court was required to declare in the decree that the divorce was executed, in order that the decree be effective; the decree did not become final until the court had declared it