Haas v. Haas

California Court of Appeal Jun 3, 1964 No. Civ. 27990Published

Before: Fourt

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Holding. A party who has not satisfied the statutory residence requirements for divorce may still seek a divorce in a pending action if the opposing party has already satisfied those requirements. However, the trial court's error in striking the plaintiff's amended complaint was not prejudicial because the court found against the plaintiff on the underlying issue of cruelty.

Issues

May a party who has not satisfied the residence requirements of Civil Code section 128 seek a divorce if the opposing party has satisfied those requirements?
Did the trial court commit prejudicial error by striking the plaintiff's amended complaint for divorce?

Disposition. affirmed

Quotations verified verbatim against the opinion

“We believe that the answer thereto is in the affirmative for the reasons hereinafter set forth.”

“The trial court erred in striking plaintiff’s amended complaint for divorce. However, under the circumstances of this case the error was not prejudicial.”

[616]

FOURT, Acting P. J.

Plaintiff appeals from an interlocutory judgment of divorce entered “in favor of defendant and cross complainant and against plaintiff and cross defendant and from the whole thereof. ’ ’

The chronology of significant events is as follows:

On August 3, 1962, plaintiff filed a complaint for separate maintenance. Therein she alleged that defendant had treated her with extreme cruelty and had wrongfully inflicted grievous mental suffering.

On August 28, 1962, defendant filed his answer to plaintiff’s complaint. Among other things he denied the alleged cruelty. In addition to his answer, defendant filed a cross-complaint for divorce. Therein defendant alleged that he “is now and for more than one year last past has been a resident of the State of California, and for more than three months last past has been and now is a resident of the county of Los Angeles.” Defendant charged cruelty as a ground for divorce.

On September 4, 1962, plaintiff filed her answer to defendant ’s cross-complaint.

On May 22, 1963, plaintiff filed a “First Amended Complaint For Divorce (Cruelty) ” wherein she alleged that defendant “and cross complainant is now and for more than one year last past has been a resident of the County of Los Angeles, State of California.”

The cause was called for trial on May 22, 1963. The minute order of that date provides in pertinent part as follows: “... an opening statement is made by plaintiff and defendant. Joan Haas is sworn and testifies on behalf of the plaintiff. Plaintiff’s motion that the 1st Amended Complaint for Divorce be amended to include in the prayer the request that plaintiff be restored her maiden name of Joan Wilson is granted.

Defendant’s motion to strike plaintiff’s 1st amended complaint for divorce is argued and submitted upon the filing of the last points and authorities, 5—5, plaintiff to open. ...

The plaintiff rests. Marilyn Liebmann is sworn and testifies on behalf of the defendant. The defendant rests. . . . Both sides rest.

Cause will stand submitted upon the filing of the last points and authorities,

Haas v. Haas

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