Catsiftes v. Catsiftes

MAXEY, J.,

pro

tem.

This is an appeal from an order denying a motion for change of venue. The motion was predicated upon the grounds of residence of the defendant.

The plaintiff and defendant intermarried on June 7, 1936, and established their residence in the county of Merced, state of California, where they lived for approximately twelve weeks. On or about the 6th day of September, 1936, the defendant and appellant returned to the city and county of San Francisco, her former home and former place of residence. On the 31st day of October, 1936, plaintiff and respondent filed a complaint for divorce in the Superior Court of the State of California, in and for the County of Merced. On the 2d day of December, 1936, the defendant and appellant filed in said court a notice of motion for change of venue, motion for change of venue, affidavit of merits, demand for change of place of trial, and a demurrer to the complaint. On March 20, 1937, the motion for change of venue came on regularly for hearing before the court, and at that time, pursuant to stipulation of parties, the oral testimony of the defendant was taken.

The affidavit of merits is in the usual and customary form, and alleges: “That she was, at the time of the commencement of the above-entitled action, and ever since has

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been, and now is, a resident of the City and County of San Francisco, State of California. That affiant has resided in the City and County of San Francisco continuously from approximately the year 1923, up to the 7th day of June, 1936, or thereabouts, when affiant married said plaintiff, and that affiant was away from the City and County of San Francisco for a period of approximately twelve weeks on her honeymoon and vacation, and returned to the City and County of San Francisco, on or about the 6th day of September, 1936, and ever since has been, and now is, a resident of the City and County of San Francisco, State of California.”

The oral testimony of the defendant taken at the time of the hearing was as follows: ‘

‘

That after the marriage of the parties they established a residence in the County of Merced, State of California, and maintained it for sometime, and at the'time of leaving the County of Merced, State of California, it was not the defendant’s intention to change her residence, but that she had only temporarily left until the plaintiff regained his health, and that at no time did she intend to abandon her residence in Merced County. ’ ’