MacEdo v. MacEdo

California Court of Appeal Nov 22, 1938 No. Civ. No. 5963Published

Before: Pullen

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Holding. The court held that Civil Code section 133 is a valid, retroactive, and curative statute that allows for the entry of a final divorce decree nunc pro tunc, thereby validating a subsequent marriage that was previously invalid due to the absence of such a decree.

Issues

Whether Civil Code section 133 is constitutional and may be applied retroactively to validate a marriage that was invalid at its inception.
Whether the retroactive application of Civil Code section 133 deprives the appellant of a vested right.
Whether the final decree entered in the Moreira case complied with the requirements of Civil Code section 133.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 133 of the Civil Code is both remedial and curative in character. It is remedial in that it provides for judicial action in a pending matter in furtherance of the relief prayed for. It is curative in that it makes valid a marriage”

“The act is both curative and remedial, and the retroactive operation of such statute should be given effect unless it disturbs some vested right or impairs the obligation of some contract.”

“Here, however, we can perceive no vested rights in appellant. He had no vested right to dissolve his marriage status in any particular manner.”

29 Cal.App.2d 387 (1938) AUGUST MACEDO, Appellant,

MARY MACEDO, Respondent.

Civ. No. 5963. California Court of Appeals. Third Appellate District.

November 22, 1938. Kenneth I. Jones for Appellant.

Howe, Hibbitt & Johnston and O. F. Meldon for Respondent.

Pullen, P. J.

These parties were married in February, 1932, and lived together until 1936, when they separated. Appellant herein, as plaintiff, then brought an action to annul the marriage upon the ground that at the time of marriage Mary Macedo had a husband then living.

It was true that at the date of the marriage between the parties hereto a former marriage between defendant herein and one Moreira was undissolved. An action for divorce had been instituted and an interlocutory decree had been entered September 10, 1930.

The complaint in this action seeking annulment was filed November 6, 1936. On November 16, 1936, defendant Mary Macedo procured the entry of the final decree in the Moreira case. She then filed her answer in the annulment action, [389] alleging such entry of the final decree. The trial court refused to annul the marriage and held the same valid. This appeal followed.

Respondent contends the trial court was correct and her marriage was valid by virtue of the retroactive operation of the final decree entered under the terms of section 133 of the Civil Code. This section, enacted in 1935, provides:

"Entry of Final Judgment Nunc Pro Tunc: Effect of such Entry; Marriage Subsequent to Interlocutory Judgment Validated. Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed or entered, if no appeal has been taken from the interlocutory judgment or motion for a new trial made, the court, on motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for. Upon the filing of such judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to one year after the granting of the interlocutory judgment as shown by the minutes of the court, and after the final judgment could have been entered under the law if applied for, shall be valid for all purposes as of the date affixed to such final judgment upon the filing thereof."

MacEdo v. MacEdo

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