Flynn v. Flynn

ANGELLOTTI, C. J.

This is an action for divorce. Plaintiff was awarded an interlocutory decree, from which defendant appeals. The judgment was reversed by the district court of appeal of the third district, solely on the ground that there was no express finding that plaintiff had resided in the state or in the county in which the action was brought for the periods specified in section 128 of the Civil Code, that section providing that “a divorce must not be granted unless the plaintiff has been a resident of the state one year, and of the county in which the action is brought three months, next preceding the commencement of the action,” and also that there was no evidence adduced on the trial to show such residence. The decision of the district court of appeal was vacated and the ease ordered transferred to this court for determination because we were not satisfied as to the correctness of certain views expressed by that court in its opinion.

Plaintiff’s complaint contains a sufficient allegation of residence in accord with the provisions of said section 128 of the Civil Code, it being alleged that “said plaintiff resides in the City and County of San Francisco, State of California, and has resided in said city and county for more than four years ■next immediately preceding the commencement of this action.” Any suggestion that such allegation is defective for the reason that it is not in so many words alleged that such residence was

“bona fide”

is unwarranted by anything contained in the statute, and if anything to the contrary is intimated by language used in

Coleman

v.

Coleman,

23 Cal. App. 423, [138 Pac. 362], it must be considered as disapproved. Of course, the residence must be

bona fide

as a matter of fact, or it is not residence at all. The allegation of residence here necessarily implies residence in good faith, and entirely measures up to the requirement of the statute.

The allegation of residence was not denied by the answer. In fact, in her cross-complaint, stating a cause of action for permanent support and maintenance under section 137 of the Civil Code, defendant alleged that both parties were, and for more than one year next preceding the commencement of the