Dominguez v. Dominguez

DORAN, J.

The complaint herein, filed October 17, 1954, seeks annulment of a marriage between the parties which occurred at Las Vegas on August 9, 1953, alleging the existence of “a prior existing marriage, which marriage had not been dissolved and was in full force and effect.” The defendant failed to answer or otherwise appear after having been served with summons, default was entered, and at the hearing, plaintiff’s prayer for annulment was denied, from which judgment the present appeal is taken.

The trial court found that the allegations of the complaint were true, and that plaintiff’s former wife had obtained a California interlocutory decree of divorce from plaintiff which

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“was entered on February 20, 1951; that the marriage of the parties hereto occurred on August 9, 1953, more than one year after entry of said interlocutory decree; that no final decree of divorce was made or entered in said action until May 24, 1954; that plaintiff herein was entitled on and after February 21, 1952, to have and could have obtained the signing, filing and entry of a final decree . . .

nunc pro tunc

as of February 21, 1952, or a later date, and could thereby have validated his marriage to defendant herein; that he elected not to do so but to rely upon his own violation of law as a ground for obtaining an annulment of said marriage; that plaintiff has not come into court with clean hands and his complaint is without equity; that plaintiff is not entitled to an annulment of marriage from defendant.”

The record further discloses that appellant had been informed by the former wife that a final judgment of divorce had been entered at the time of the marriage to respondent; appellant did not discover that such final judgment had not been entered until May 14, 1954. The wife in the former action is now remarried and has children by a later marriage.

It is contended that appellant “has not come to court with unclean hands by reason of his failure to procure entry of his final judgment of divorce,

nunc pro tunc,”

and therefore, that the annulment should have been granted.