Wynne v. Wynne

DESMOND, J., pro tem.

The plaintiff, in a suit for separate maintenance, appeals from a judgment which holds that the defendant, a naval officer, is not her husband and that she has no right of support or maintenance from him. While the ground of appeal is not expressly stated, it is clear that appellant’s contention is that the findings upon which the judgment rests are not supported by the evidence; therefore that the judgment cannot stand.

The suit was filed on March 9, 1933, in the county of Los Angeles. The complaint alleged, as one of the specifications of cruel treatment causing plaintiff grievous mental suffering, “That on or about the 20th day of February, 1933, in the First Judicial District Court of the State of Nevada, in and for the County of Douglas, a complaint was filed by defendant upon a simulated residence of said defendant, Walter M. Wynne, in said State of Nevada. That said alleged cause of action for divorce is based upon the grounds of extreme cruelty; whereas, in truth and in fact, defendant established a residence in Nevada only for the express purpose of filing said cause of action for divorce; that the matrimonial domicile of the parties hereto has never been the State of Nevada.”

The answer of defendant, filed March 25, 1933, admitted that he did file the Nevada divorce action mentioned in

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plaintiff’s complaint, but denied that he established a residence in Nevada solely for the express purpose of filing said suit, alleging that he “is a resident of the county of Washoe, State of Nevada, in which state he has established his permanent residence”. After the lapse of several months, and on August 8, 1933, the court granted a motion to file an amended answer, in which, by way of affirmative defense it is alleged: “That the plaintiff in this action was served with a copy of the complaint and summons in the said Nevada divorce action on February 23, 1933. That the plaintiff in the present action failed to appear or plead to the said Nevada divorce action, and, her default having been entered therein, the First Judicial District Court of the State of Nevada, in and for the County of Douglas, on May 11, 1933, granted to the defendant in this action a final decree of divorce from the above named defendant.

“That the defendant alleges the fact to be that the Superior- Court of Los Angeles County, California, has no jurisdiction over either the person of the defendant, or the purported first cause of action of the plaintiff, for the reason that the relationship of husband and wife does not exist between the parties to this action.”