Rein v. Clemens

SCOTT (Robert H.), J. pro tem.* Toby Clemens Rein, sister of Harry Hersckel Clemens, deceased, and the executrix of his will, has appealed from an order directing her to pay a family allowance to Jacqueline Clemens, widow of deceased. She challenges the validity of the latter’s marriage on the sole ground that the widow’s earlier marriage to one Howard Nielson had not been legally terminated.

Jacqueline Clemens and Harry Herschel Clemens, a physician, were married in Las Vegas, Nevada, on August 10, 1958. The next day the bridegroom became ill and on August 14, 1958, he died in Pasadena. He left a will dated January 21, 1952, which made no provision for this respondent. While this appears to have been his first marriage, his wife, the respondent in this case, had been previously married to Roger Mallory (in 1945), to Howard Nielson (in 1948) and to William Lloyd (in 1955).

The sister, who is executrix of the will, resists the order for payment of the family allowance because it appears to her that Nielson obtained the divorce from the present Mrs. Clemens at a time when the court in the state of Nevada which granted the decree had no power to do so because, she asserts, Nielson was not a bona fide resident of that state.

The trial court in this case found that a decree of divorce dissolving the bonds of matrimony between Howard Nielson and Jacqueline Nielson was made and given by a court of competent jurisdiction in Clark County, Nevada, at a time when Howard Nielson was found by that court to be a bona fide resident of that county and state and to have been so for more than six weeks before filing the action for divorce. The trial court in this case thereupon determined that the Nielsons were legally divorced, and that the prior marriage constituted no obstacle to the marriage upon which the present proceedings were instituted and made an order for a family allowance in a moderate amount and for a limited period of months.

The evidence discloses that Howard Nielson had been living in a trailer in Los Angeles County, that work was very slow here at the time in his line as a sheet metal worker, that he gave up the trailer and went to Las Vegas. When asked, “did you have any intentions as to the changing of your [351]residence from the State of California to any other state?” he replied, “Yes; I meant to go up there and work.” Upon being asked, “When you arrived in Las Vegas, Nevada, then do I take it that you intended to reside in Nevada?” he answered, “Yes,” and when asked, “Now, did you intend to make your home there?” he replied, “Yes, I believe so.”