Chilcott v. Chilcott

California Court of Appeal Jan 17, 1968 No. Civ. 30442Published

Before: Shinn

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Holding. The court held that a party who remarries in reliance on a prior divorce decree is estopped from contesting the validity of that decree, and therefore the trial court erred in granting a divorce based on the invalidity of the parties' Mexican divorce.

Issues

Whether a party who remarries in reliance on a Mexican divorce decree is estopped from asserting the invalidity of that decree in a subsequent California divorce action.

Disposition. reversed

Quotations verified verbatim against the opinion

“the authorities are, practically unanimous in favor of the proposition that a remarriage estops the party entering into it from denying the validity of a previous divorce.”

“The judgment is reversed with directions that the action be dismissed.”

SHINN, J.

†

December 28,1964, Lester A. Chilcott brought suit for divorce against Katie E. Chilcott, alleging they were married to each other April 11, 1950, and separated April 20, 1964; they had a daughter, aged 9, and a son, aged 6; the property of the parties had been divided; it was in the best interests of the children that their custody be awarded to Katie. The ground of the divorce was that Katie had treated Lester with extreme cruelty. Katie answered the complaint, denying the charge of cruelty and alleging she had obtained a decree of divorce from Lester in a Mexican court May 25, 1964, and that shortly thereafter she had married another man and Lester had married another woman. Katie also filed a cross-complaint seeking support for the children, attorneys’ fees and costs. Lester answered the cross-complaint alleging

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he had supported the children and would continue to support them and also alleging that Katie was able to pay her own attorneys and costs of suit.

The case was tried; the court found that Lester and Katie were husband and wife; Katie was guilty of extreme cruelty toward Lester, she was able to pay her attorneys their fees and costs of suit; Lester was given an interlocutory decree and was ordered to pay $37.50 per month for the support of each child. Katie appealed from the portion of the judgment which awarded Lester a divorce.

The appeal is upon a clerk’s transcript, without exhibits.

It was not admitted by the pleadings that Katie had obtained a decree from a Mexican court or that either of the parties had remarried, and the court made no finding upon either issue.

The court filed a memorandum of opinion in which it was stated that Katie went to Juarez, Mexico, and obtained a decree of divorce; Lester consented to the Mexican divorce and signed papers to that effect; within a short time Katie married her present husband, her former boyfriend, and thereafter Lester married a woman who already had three children by a former marriage; both remarried in reliance upon the Mexican divorce. The memorandum of opinion was the court’s findings of the facts but, unfortunately, it was not given that label.

Chilcott v. Chilcott

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SHINN, J.

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