McElhatten v. McElhatten

SHINN, P. J. Plaintiff appeals from an adverse judgment in her action for annulment of her marriage to defendant, James Albert McElhatten. She alleged in her complaint that she participated in a ceremony of marriage with defendant on December 4, 1951 in Tijuana, Mexico, a year later in another ceremony of marriage in Glendale, California, and at the times of said purported marriages and each of them defendant had another wife living by virtue of a marriage which was then and continued to remain in full force and effect. Defendant having been duly served with [137] process and having defaulted, plaintiff submitted her evidence, following which the court entered a judgment which recited “The Court finds that the allegations of the complaint are not true, and that plaintiff is not entitled to an annulment of marriage from defendant”; whereupon it was decreed that an annulment of the marriage was denied. Although the finding negatives each and every allegation of the complaint, such could not have been the intention of the court. If given literal effect, the finding would be contrary to the established facts as to the ceremonies of marriages in which defendant participated. Defendant was called as a witness on behalf of plaintiff and testified that he married Barbara June Gamble August 15, 1947. He also testified that on or about December 4, 1952, he participated in a marriage ceremony with plaintiff Ruby Cloma Johnson McElhatten. Certified copies of the certificates of each marriage were received in evidence. Defendant testified further that at all times subsequent to August 15, 1947, he had lived and been continuously employed in California; also that Barbara June Gamble McElhatten is living and a resident of California. He further testified that he had never instituted an action for divorce in the United States and had never been served with process in an action for divorce brought by Barbara; that he “attempted” to get a divorce in Mexico “December 4, 1951”; he was in Mexico but two days; he had no intention of living in Mexico or in any place other than California, and he immediately returned to California. This evidence was received November 15, 1956, and the cause was submitted. There were further proceedings December 12,1956. Apparently, due to press of other business, some of the facts developed had escaped the minds of the court and counsel. It was stated: “The Court is denying the decree of annulment on the ground that the plaintiff in this action is not in a position to collaterally attack the Mexican decree of divorce which it was testified the defendant obtained in Tijuana on December 2, 1951; that the other party to the marriage which resulted in the Mexican divorce is a party interested in the matter and is not a party to this action. “If I remember correctly, the evidence showed that Barbara June Gamble had remarried; is that correct? “Mb. Hobton: I believe that was the testimony, your Honor. “The Coubt: There is no showing that the jurisdiction of [138] the Mexican Court was not contested in the Mexican divorce proceeding. Therefore the decree of annulment is denied." There was no evidence that defendant had procured a divorce in Mexico December 2, 1951, or at any other time. Neither was there any evidence that Barbara June Gamble had remarried, although that question was irrelevant to any issue in the case. The only tenable conclusion from the evidence was that defendant’s marriage to Barbara was in force at the time of his purported marriage to plaintiff. The clear inference from defendant’s testimony was that he did not obtain even a purported decree of divorce during the two days he was in Tijuana or at any other time, and there was no evidence that he ever brought suit. Moreover, a resident of California cannot step across the international boundary into Mexico as a casual visitor and bring back a signed paper which is entitled to any consideration as a decree of divorce. The mere assertion that a marriage can be dissolved in that manner deserves from a California court nothing but ridicule and reproach. The evidence which was elicited from defendant that he and his former wife were residents of California, that he had never sued for divorce there nor been sued, dispelled any presumption that their marriage had ever been dissolved in any jurisdiction. The record discloses no ground upon which a decree of annulment could be properly refused. The judgment is reversed with directions to enter a decree in accordance with the prayer of the complaint. Vallée, J., concurred.