Dunphy v. Dunphy

This is an appeal from an order directing plaintiff to pay defendant two thousand dollars to enable her to prosecute her motion for new trial and appeal in an action brought against her to annul the marriage solemnized between herself and plaintiff on June 22, 1909.

The complaint in that action alleged that on said day the plaintiff and defendant were married, and this allegation was admitted by the answer and found by the trial court to be true. It further alleged as the ground of the annulment sought that at the time of such marriage the plaintiff was and ever since has been “of unsound mind,” and that the plaintiff has never freely cohabited with the defendant as her husband. These allegations were denied by the answer. The trial court found that the plaintiff was “of unsound mind” at the time of the marriage and until after July 21, 1909, and that the plaintiff has never since said marriage freely cohabited with the defendant as her husband, and gave judgment annulling the marriage. Defendant duly inaugurated her proceedings on motion for a new trial and for a review of the action of the trial court by this court. It was not disputed that she is prosecuting such proceedings in good faith and with reasonable grounds therefor, that she is without the means of paying the costs thereof, and that the amount allowed by the trial court is reasonably necessary to enable her to pay such expense. An appeal from the judgment of the superior court was taken on July 20, 1909, and such appeal is still pending. The sole contention of appellant is that the court had no jurisdiction to make the order, and that the evidence was insufficient to justify the same “in that there is no evidence to show, and the evidence fails to show,, that defendant and cross-complainant is or ever was the wife of plaintiff and cross-defendant.”

Appellant’s point is that to justify an order requiring the payment of money to enable the defendant to prosecute her motion for a new trial and appeal, the marital relation must be admitted or shown by a preponderance of evidence. In support of this claim Hite v. Hite, 124 Cal. 389 , [ 71 Am. St. Rep. 82 , 45 L. R.

It was held by this court in the recent case of In re Gregorson's Estate, 160 Cal. 21 , [ 116 Pac. 60 ], that the effect of our statutes is that such a marriage is not void at initio, and is free from attack except in proceedings for annulment brought by the party injured or on behalf of the party of unsound mind, during the lives of both parties (Civ. Code, secs. 82 and 83), and that consequently the validity of the marriage cannot be questioned after the death of the wife, in proceedings for the appointment of an administrator of her estate. It was recognized that in the absence of any statute providing otherwise, the great weight of authority is to the contrary, but it was shown by an exhaustive consideration of our statutes that the legislature has made such a marriage valid and free from attack except in the annulment proceeding already referred to. In the absence of a decree of annulment it is valid not only against the world but also as between the parties. (Coats v. Coats, 160 Cal. 671 , [ 118 Pac. 441 ].) A merely voidable marriage “must be treated as valid for all civil purposes until annulled by judicial decree.” (State v. Lowell, 78 Minn. 166 , [ 79 Am. St. Rep. 358 , 80 N. W. 877 , 46 L. R. A. 440 ]; Willits v. Willits, 76 Neb. 228 , [ 107 N. W. 379 , 5 L. R. A. (N. S.) 767 ].) It would appear to necessarily follow that so far as the annulment proceedings are concerned it must continue to be accepted as a valid marriage until the decree of annulment therein has become final.

The power to allow alimony in cases of annulment of marriage was fully recognized by Chief Justice Beatty in his concurring opinion in Hite v. Hite, 124 Cal. 389 , [ 71 Am. St.

It was definitely decided by this court in the later case of Allen v. Superior Court, 133 Cal. 504 , [ 65 Pac. 977 ], that the superior court may require the husband prosecuting an action against the wife for annulment of the marriage on the ground of fraud to pay the wife such money as is actually necessary to enable her to make her defense. The court said: “As to suit money, the right of the wife cannot be denied. Until her alleged fraud is established, she remains the lawful wife of the petitioner, and has the same right'to defend the action to annul the marriage that he has to prosecute it, and until she is provided with the means actually necessary to make her defense, she ought not to be forced into a trial. This conclusion is sustained by all the opinions, concurring and dissenting, in the case of Hite v. Hite, 124 Cal. 389 , [ 71 Am. St. Rep. 82 , 45 L. R. A. 793 , 57 Pac. 227 ].” This is in accord with the great weight of authority. In some of the decisions the conclusion of the court requiring the husband to make such payments is based on statutes held to confer the power, but where it is held that the only statute on the subject is one limited to proceedings for divorce for some cause occurring after the marriage, it is further generally held, to use the language of the New York court of appeals in Higgins v. Sharp, 164 N. Y. 4 , 8, [ 58 N.

Learned counsel do not seriously question the power of the trial court to allow the wife suit money in such eases up to such time as the husband establishes to the satisfaction of such court that the marriage should be annulled, but earnestly contends that a decree of the lower court annulling the marriage bars any allowance from the time the trial court makes its decree, notwithstanding that the judgment has not become final and the wife is in good faith and with due diligence prosecuting an appeal therefrom. The power to make the allowance to the time of judgment being established, we can see no reasonable ground for holding that it does not exist to the time the judgment becomes final. It is settled that in

So that even if section 137 of the Civil Code providing for alimony and cost money in an “action for divorce” does not by its terms include actions for annulment, the weight of authority is in favor of the existence of the power as to cost money, nothwithstanding the absence of expresss statutory authority, and by reason of the general jurisdiction expressly conferred to entertain such actions, and Allen v. Superior Court, 133 Cal. 504 , [ 65 Pac. 977 ], must be taken as deciding that such power exists in this state. In view of what we have said, it must also be held that such power exists as long as the annulment action is pending. But there is much force in the claim that the term “action for divorce” in section 137, of the Civil Code, includes such actions for annulment as are provided for in sections 81 and 82 of the Civil Code. Section 137 is a part of article IV of chapter II, title I, part

The order appealed from is affirmed.

Shaw, J., and Sloss, J., concurred.