Luckett v. La Tour

California Court of Appeal Mar 31, 1932 No. Docket No. 7130.Published

Before: Fricke

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Holding. The court held that the trial court's findings of fact were supported by sufficient evidence, including an exemplified copy of a Texas divorce decree and the presumption of validity regarding subsequent marriages.

Issues

Whether the trial court's findings of fact were supported by sufficient evidence.
Whether the presumption of validity of a second marriage places the burden of proof on the party challenging it.
Whether findings on immaterial matters or findings containing clerical errors constitute grounds for reversal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of proof to the contrary it must be presumed that the court which granted the divorce was acting in the lawful exercise of its jurisdiction”

“Even without evidence of the divorce proof of the second marriage would raise the presumption that it was valid and the burden of proving the contrary was upon the appellant.”

FRICKE, J.,

pro

tem.

This is an action for the alienation of the affections of Dr. Thomas 0. Luckett, to whom appellant was married in February, 1907. The parties to this marriage lived together up to some time in April, 1926, when they separated and appellant filed a divorce action on the grounds of adultery and habitual intemperance but, after a trial, a decree of divorce was denied each of the parties. Appellant’s points on this appeal are limited to an attack upon the findings of fact.

Appellant contends there is no evidence to sustain the finding that “it is not true that they (appellant and Dr. Luckett) ever since (their marriage) have been and now are husband or wife”. Appellant refers to the allegation upon which this finding is based as being made in the answer, when in fact the finding is to the effect that one of the allegations in the second paragraph of the complaint

[273]

is not true. Appellant further asserts that this finding is without support in the evidence. Counsel has evidently overlooked the testimony of Dr. Luckett that in 1926 he filed suit for divorce in Texas, after establishing his residence there and his testimony, received without objection: “Q. Then after you secured a divorce you and the present Mrs. Luckett were married1? A. Yes.” Appellant also attacks, as without support in the testimony, the finding that appellant and Dr. Luckett were divorced in Texas in November, 1927, and that in December, 1927, respondent and Dr. Luckett were duly and legally married. There is direct testimony of the marriage in December. In addition to the testimony above quoted there was received in evidence an exemplified copy of the Texas decree of divorce which the trial court admitted as an exhibit “as evidence of the state of mind” of the husband. In the absence of proof to the contrary it must be presumed that the court which granted the divorce was acting in the lawful exercise of its jurisdiction and that its official duty was regularly performed. (Code Civ. Proc., sec. 1963, subds. 15 and 16.) The decree of divorce recites that the defendant (the appellant here) was duly cited by publication as required by law but failed to appear and answer in the action and such recitals are conclusive of the facts unless contradicted by proof

Luckett v. La Tour

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FRICKE, J.,

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