Warner v. Warner

Paterson, J. This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. The prayer is for a divorce, a cancellation of the conveyance, and a division of the property fraudulently conveyed. The action was brought in the county of San Bernardino, the complaint alleging that the plaintiff had resided in the state for more than one year and in the county of San Bernardino for more than three, months next preceding the commencement of the action.

The court on motion of the defendants changed the place of trial from San Bernardino to Los Angeles county, upon the sole ground that the defendants were residents of the latter county.

Appellant contends that under section 128 of the Civil Code an action for divorce must be brought in the county of the plaintiff's residence, and cannot be removed therefrom except on account of the convenience of witnesses, or where it is made to appear that an impartial trial cannot be had, or that the judge of the county is disqualified from acting.

The section referred to, as originally incorporated into the codes, provided that “a divorce must not be granted unless the plaintiff has been a resident of the state for six months next preceding the commencement of the action.” As amended by the Act of March 10, 1891, it now reads that “ a divorce must not be granted unless [14]the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action.”

It is said it would lead to an absurdity to hold that a husband could compel his wife to bring an action in a county other than the one in which he lived—in the county wdiere she resides—and afterwards on his own motion have the cause removed to the county of his residence; but in making this new provision the legislature was looking out for the interests of the public, as well as the interests of the parties. Prior to the passage of this amendment reproach had been brought upon the administration of our divorce laws by the frequency of proceedings commenced by complainants in counties where neither of the parties resided, the purpose being generally to avoid notoriety in the community where the plaintiff was known, and in some instances to obtain a decree by collusion, or to vex the defendant, or make it impossible or inconvenient for him or her to present a defense. It was the purpose of the amendment to correct this abuse. The state has an interest in the result of such cases. The public welfare demands that the bonds of matrimony should not be lightly set aside, and there is less probability of successful collusion or unfair advantage where the parties have both resided and are known than there is in a county where neither has resided, and which the plaintiff may select for the purpose solely of procuring a divorce. It is true, before the amendment, a defendant had the right to have the cause transferred to his or her place of residence for trial, and to this extent the defendant’s rights were protected; but the amendment tends to discourage the practice referred to, saves the defendant in a great many instances from the necessity and expense of moving for a change of the place of trial, and renders it less probable that the parties will allege or admit grounds of divorce which their friends and neighbors know to be false. Thus are the interests of not only the defendant but of the public in a measure protected.