Calhoun v. Calhoun

MARKS, J.

This is an appeal from a judgment which divided the community property of the parties, but failed to require defendant to contribute anything to the support of plaintiff. Plaintiff raises no question as to the division of the community property but argues that the trial court erred in refusing to require defendant to contribute to her support.

The parties were married in Oakland, California, on May ■24,1923, and lived together as husband and wife until November, 1939, when they separated. On January 3, 1941, Mr. Calhoun brought an action for divorce in the Superior Court of San Diego County alleging wilful desertion by Mrs. Calhoun. She appeared and successfully contested that action. The trial court found that Calhoun had deserted and abandoned Mrs. Calhoun without cause or excuse and against her will and without her consent. The decree denying the divorce was entered on November 13, 1941.

In February, 1943, probably about the 6th, Calhoun left California and went to Nevada. He filed an action for divorce there about March 21, 1943. Mrs. Calhoun was served with the summons and complaint in California. She did not appear in the action and Calhoun was granted a decree of divorce on April 27, 1943.

The divorce was granted under the provisions of section

[235]

9467.06, Nevada Statutes, which provides in effect that where a husband and wife had lived separate and apart for three consecutive years without cohabitation the court may grant an absolute decree of divorce in the suit of either party. This was an amendment of a prior statute which required five consecutive years of separation without cohabitation. (Nevada Stats. 1931, p. 180, eh. Ill, § 1.)

The complaint in the instant action attacked the validity of the Nevada divorce on the ground of fraud on the part of Calhoun in (1) leaving the State of California and going to Nevada for the sole purpose of obtaining a divorce, and, (2) in failing to disclose to the Nevada court that the California decree had denied him a divorce on the ground that the separation of the parties was caused by the sole fault of the husband. In this connection it is argued in effect that the three years of separation without cohabitation required by the Nevada statute started to run on March 21, 1940; that the California decree denying Calhoun a divorce was rendered November 13, 1941, so that three years following that date had not elapsed between that date and the filing of the Nevada action about March 21, 1943, which should defeat Calhoun’s action in Nevada.