Wendell v. Wendell

PETERS, P. J.

By this complaint filed on October 31, 1949, plaintiff, Mollie Wendell, first wife of Abraham Wendell, seeks to attack and have set aside, on the ground of fraud, a divorce secured by Abraham in 1910, even though both parties thereafter remarried, Abraham in 1914, and Mollie in 1915. The trial court held, among other things, that, under the circumstances, Mollie was estopped from challenging the decree. Mollie appeals. There is no merit to this appeal.

Mollie was born in Poland about 1880. She and Abraham were married in England in 1898. Thereafter, Abraham mi

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grated to New York City where he was joined by Mollie in 1902 or 1903. Thereafter, the parties lived together at various places in New York City and Brooklyn. They had three children.

Mollie testified that Abraham deserted her in 1908 or 1909, leaving her without funds. She also testified that thereafter the two corresponded and that she kept him informed of her address. This correspondence was in Yiddish.

In 1910, Abraham, in San Francisco, obtained an interlocutory decree of divorce upon the alleged ground of Mollie’s desertion. The affidavits for publication of summons and mailing in that proceeding gave the then address of Mollie as “176 East Broadway” in New York City. That is a nonexistent address. Mollie did not have any actual knowledge of the divorce action during its pendency. Whether this false address was given fraudulently or as a result of mistake does not clearly appear. In either event, the divorce decree, when secured, was subject to being set aside as having been secured on false affidavits as to residence.

(Rivieccio

v.

Bothan,

27 Cal.2d 621 [165 P.2d 677];

Parsons

v. Weis, 144 Cal. 410 [77 P. 1007];

Wells

v.

Zenz,