Glaston v. Glaston

YORK, P. J. Defendant wife appeals from a judgment granting to plaintiff husband an interlocutory decree of divorce on the ground of cruelty. Defendant, a resident of New York State, appeared and filed her cross-complaint in the instant action.

The parties intermarried in New York State on September 7, 1940, and they separated on October 9, 1940. It is admitted by both that respondent attempted a reconciliation and that on October 25, 1940, they signed a document whereby, in return for the establishment of a joint bank account and one-half of respondent’s weekly earnings, appellant promised to resume marital relations with respondent, starting November 25, 1940. However, on October 31, 1940, appellant instituted in New York State an action for separation from bed and board on the grounds of cruelty, nonsupport and desertion. Respondent, who was then and now is, a publicity agent for the well-known comedy team of Abbott and Costello, was sent to California on November 2, 1940. After handling publicity for his employers at Chicago and Detroit en route to California, he shortly thereafter arrived at Los Angeles, where he has ever since resided.

Substituted service was made upon respondent in the New York action by the publication of summons in two New York newspapers, and by mailing copies of the complaint and summons to respondent at two different addresses in New York City. Thereafter, judgment was taken against him by default upon the three grounds heretofore stated, appellant receiving a judgment for separate maintenance and respondent [789]ordered to pay her $100 per week for her support, although he was never at any time personally served with either the summons or complaint.

To the amended complaint in the instant cause, appellant wife filed her first amended answer and cross-complaint in which she denied the acts of cruelty charged against her in said amended complaint, alleged a course of cruel and inhuman conduct by respondent husband, and set up the judgment rendered in the New York action as a bar to the within action for divorce, praying that said foreign judgment be established and enforced in this state, and that she be awarded a money judgment thereon for the unpaid sums accrued thereunder, to wit, $8,600. The allegations of appellant’s cross-complaint filed herein with respect to respondent’s cruel and inhuman treatment of her are identical with the allegations of her complaint filed in the Now York action.

After a trial of the issues during which appellant introduced the New York judgment and rested, the court made findings of fact in favor of respondent husband, and denied any relief to appellant on her cross-complaint. Among other things, the trial court found as follows: That “by and under a certain final judgment of separation in favor of defendant herein, duly given and made by the Supreme Court of the State of New York, County of New York, on or about October 6, 1941, in a certain action for separation from bed and board . . . brought by this defendant, as plaintiff therein, against the plaintiff herein, as defendant therein, upon the grounds of cruelty and non-support and desertion by the plaintiff herein, it was duly found and determined by said court that the defendant herein was entitled to a judgment of separation upon all the grounds therein mentioned,” all as set forth in a duly exemplified copy of said judgment attached to appellant’s answer and cross-complaint herein as Exhibit A.