Maduro v. Maduro

Plaintiff brought this action for the annulment of his marriage on the ground that at the time he

Strangely enough, there appears to be no California case discussing the question as to whether, when a defendant defaults in an annulment proceeding (using the term “annulment” in its broadest sense), such party is entitled to a judgment without the production of evidence. So far as divorces are concerned, the matter is expressly covered by statute. Section 130 of the Civil Code provides that: “No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testimony of the parties. ...” There is no comparable statute in reference to annulment. Plaintiff correctly contends that the word “divorce” in section 130, supra, does not include annulments. In Millar v. Millar, 175 Cal. 797 [ 167 P. 394 , Am.Cas. 1918E 184, L.R.A. 1918B 415], it was held that the word “divorce” appearing in section 128 of the Civil Code relating to the requisite residence of a plaintiff in a divorce proceeding, and the same term appearing in section 131 of the Civil Code requiring a decision to be filed in a divorce case, and the same term appearing in section 132 of that code providing for the entry of the final judgment in a divorce action after one year, has no application to annulment proceedings. For the reasons set forth in that opinion (see particularly 175 Cal. at pp. 806 to 809) we agree that section 130 has no application to annulment proceedings.

There appears to be no direct statutory provision on the subject. Section 585 of the Code of Civil Procedure, upon which plaintiff relies, provides for the entry of defaults in certain cases without the taking of evidence, and requires or permits the taking of evidence in certain other cases, but there is no direct reference to annulment proceedings in that section. Subdivision 3 of section 166 of the Code of Civil

However, without regard to any statutory provision, we are convinced that, as a matter of public policy, and in order to protect the interests of the state in the marriage relationship, a trial court not only has the discretion to require the production of evidence in a default annulment, but that, in such a case, such court is without power to enter judgment without the production of evidence. Cases dealing with the dissolution or annulment of the marriage relationship are sui generis. The state is a silent but by no means inactive third party to every action to dissolve a marriage. The institution of marriage is of so much importance to society that the public is interested in the outcome of every action for an annulment. (Wadsworth v. Wadsworth, 81 Cal. 182 [ 22 P. 648 , 15 Am.St.Rep. 38 ]; 16 Cal.Jur. p. 943, sec. 36.) It is well settled that: “In view of the peculiar nature of marriage and the grave consequences attendant upon its subversion, the courts will not grant a decree of nullity except upon the production of clear, satisfactory and convincing evidence.” (38 C.J. p. 1354, sec. 131; see footnote 29 where many cases are cited.)

While the state has no interest in preventing an annulment where the grounds necessary therefor exist, it is interested in seeing to it that no marriage is declared void as a result of fraud or collusion, and that the statutory grounds upon which- the annulment is sought actually do exist. If annulments could be granted without production of evidence it would rest entirely within the power of the two parties to the marriage contract to secure an annulment upon the filing of a verified complaint and upon default of the defendant. The interests of the state in maintaining the marriage contract would in no way be protected.

We are not without persuasive authority from other jurisdictions on this subject. It is' well settled that even though there is no statute requiring the production of evidence in default divorce cases, the interest of the state re

There are several cases from other states holding that, in divorce cases, as a matter of public policy, and in the absence of statute, the trial court is without power to enter a decree without the production of evidence. (Robinson v. Robinson (N.Y.) 1 Barb. 27 ; Scott v. Scott, 17 Ind. 309 ; Palmer v. Palmer (N.Y.) 1 Page Ch. 276; Welch v. Welch, 16 Ark. 527 ; Fogel v. McDonald, 159 S.C. 506 [157 S.E.830]; Hawes v. Hawes, 33 Ill. 286 .)

Prom what has been said, it is clear that in order to preserve the interests of the state in the marriage relationship, and in order that no marriage shall be dissolved, either by divorce or annulment, unless the grounds therefor exist, a trial court is without power to grant an annulment without the production of evidence to support the allegations' of the complaint. The trial court did not err, therefore, in requiring the production of evidence in the present case.

Plaintiff also urges that the evidence produced by him, as a matter of law, was legally sufficient to require the trial court to enter the decree. The plaintiff testified that his wife had told him in his attorney’s presence that she had another and prior husband living, and that the only divorce she had obtained from him was a Mexican correspondence divorce. The trial court termed this testimony the “clearest sort of hearsay,” and when plaintiff failed to produce any other evidence, denied the annulment. While such declarations were admissible as admissions against interest, the trial court was entitled to look upon such admissions with

The judgment appealed from is affirmed.

Ward, J., and Dooling, J. pro tern., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied April 6, 1944. Carter, J., voted for a hearing.