# Spellens v. Spellens > California Supreme Court · October 30, 1957 · 49 Cal. 2d 210 URL: https://www.frixlaw.com/law-library/cases/9794801 ## Case - **Full name:** ANNELEN SPELLENS, Plaintiff and Appellant, v. SOL CARL SPELLENS, Defendant and Appellant, and Five Connected Appeals; SOL CARL SPELLENS, Appellant, v. ANNELEN SPELLENS, Respondent - **Court:** California Supreme Court - **Decided:** October 30, 1957 - **Citations:** 49 Cal. 2d 210; 317 P.2d 613 - **Precedential status:** Published - **Opinion:** Concurring in part by Schauer - **Judges:** Carter, Schauer, Gibson, Traynor, Spence, McComb - **Cited by:** 128 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794801 ## How later opinions describe it (automated extraction) - holding that the husband was estopped from denying validity of marriage on grounds that the wife’s prior divorce was not final at time of marriage when the husband knew of these circumstances and assured the wife that marriage would be valid ## Opinion text SCHAUER, J., Concurring and Dissenting.—Estoppel to Deny the Validity of the Mexican Marriage. I agree that the extension of the doctrine of estoppel to the facts of this case is appropriate, but I would make it unmistakably clear that here the marriage in respect to which the doctrine is being applied is absolutely void ab initio. The conclusion in this respect is reached through reasoning as follows: Where the parties go through a marriage ceremony in reliance upon a void decree of divorce their marriage is no more “valid” than the marriage of the parties here where there was no judgment of divorce. 1 Therefore, as the opinion of Justice Carter indicates, public policy against bigamous marriage is no more disserved by a holding that defendant is estopped to deny the “validity” of the marriage here than it is by the more familiar holding that "The validity of a divorce decree cannot be contested by a party who has procured the decree or a party who has remarried in reliance thereon, or by one who has aided another to procure the decree so that the latter will be free to remarry.” (Rediker v. Rediker (1950), 35 Cal.2d 796, 808 [7] [ 221 P.2d 1 ].) Note, however, that in the Rediker case, at page 808, we stated, “Since the application of the doctrine of estoppel presupposes the entry of a final decree, cases involving remarriage after the entry of only an interlocutory decree (Sullivan v. Sullivan, 219 Cal. 734, 736 [ 28 P.2d 914 ]; Estate of Elliott, 165 Cal. 339 [ 132 P. 439 ]), or with the first marriage unaffected by any *235 decree (Anderson v. Anderson, 7 Cal.2d 265 [ 60 P.2d 290 ]; Brandt v. Brandt, 32 Cal.App.2d 99 [ 89 P.2d 171 ]), are not in point.” Broad statements to the effect that public policy favors the declaration of nullity of a bigamous marriage, even at the suit of the guilty party (see e.g., Anderson v. Anderson (1936), supra, 7 Cal.2d 265, 266 [2]; Sullivan v. Sullivan (1934), supra, 219 Cal. 734, 736 [3]), made without reference to the question of estoppel, should here yield to the apposite policy, stated as a conclusive presumption in the Code of Civil Procedure (§ 1962, subd. 3) that “Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it.” Defendant with full knowledge of the facts led plaintiff to believe that by going through a bigamous marriage ceremony she was acquiring the status and incident rights of a lawful wife. He should not now be permitted to rely, to her injury, upon her innocent bigamy. It appears pertinent to observe that caution should be exercised in applying the doctrine of estoppel in favor of one spouse who goes through a bigamous marriage ceremony during the interlocutory period, i.e. after entry of the interlocutory decree determining rights but before granting or entry of the judgment of divorce, which alone affects the marital status. Plaintiff’s ignorance of the invalidity in California of the Mexican marriage is conceivable in the circumstances of her lack of experience, defendant’s representations as to his wide experience, and the facts that she relied upon defendant to and defendant did arrange for her procuring the interlocutory decree establishing her right to obtain a judgment of divorce after the one year waiting period and the advice of the Mexican attorney as to the validity of a Mexican marriage. Although it is obvious that a court should scrutinize with caution a claimed belief that an interlocutory decree which is incompetent to affect status permitted a remarriage in another jurisdiction before expiration of the waiting period, until which time neither party was even entitled to apply for the judgment of divorce in California, a plaintiff’s knowledge of the facts concerning the invalidity of the void 2 *236 marriage will not always preclude invocation of the doctrine of estoppel against defendant. (See for example, Dietrich v. Dietrich (1953), 41 Cal.2d 497, 505 [13-15] [ 261 P.2d 269 ], where it was held that defendant was estopped to question the validity of an assumed-to-be void—but nevertheless granted and entered—divorce obtained by plaintiff.) Recognizing that here there can be no successful attempt to give validity to the absolutely void Mexican “marriage,” we hold that defendant is estopped to assert its unquestionable invalidity. Temporary Support and Counsel Fees and Costs Pendente Lite. Since the estoppel was shown and the husband’s ability to pay was stipulated when the wife sought support pendente lite, attorney’s fees and costs, I agree with the proposition (ante, p. 222) that such relief should have been granted. Appealability of'the Order denying Def endant’s Motion to Vacate the Allowance of Counsel Fees and Costs on Appeal. Defendant’s appeal from the order denying his motion to vacate the order granting attorney’s fees and costs on appeal is properly dismissed since the motion merely called upon the court to repeat or overrule its previous ruling on the same facts. (Litvinuk v. Litvinuk (1945), 27 Cal.2d 38, 44 [7] [ 162 P.2d 8 ].) As the majority opinion points out (ante, p. 228-229) an appeal from an order denying a motion to vacate an appealable order does not lie where the grounds on which the moving party sought to have the order vacated existed before its entry and were available on appeal therefrom. (Colbert v. Colbert (1946), 28 Cal.2d 276, 281 [8] [ 169 P.2d 633 ].) Disposition of Plaintiff’s Cause of Action Based on Fraud and the Theory that she is a Putative Wife. I further agree with the holding (ante, p 222) that since recovery is to be allowed on the view that defendant is estopped to deny the validity of the marriage, there can be no recovery for fraud inducing the marriage or as a putative wife. She cannot both eat her cake and have it too. Defendant’s Agreement to Divide his Property with Plaintiff and to Support Plaintiff and her Children. I dissent from the holding (ante, p. 222-225) that plaintiff can recover on defendant’s alleged oral agreement to divide his property with plaintiff and to support plaintiff and plaintiff’s children. In my view the agreement was invalid because it was promotive of divorce. At the inception of these proceedings plaintiff, by pleading, offer of proof, and testimony, took the position that defendant’s promises induced the obtaining of the interlocutory decree and the terms which she sought and was *237 granted by such decree, as well as the subsequent Mexican marriage ceremony. She took this position in her first amended complaint, 3 at the first hearing on the questions of temporary support and costs and attorney’s fees pendente lite, 4 and at *238 the second hearing on the questions of temporary support and costs and attorney’s fees pendente lite. 5 Although the trial court found “that on a number of occasions prior to October, 1950, plaintiff threatened to divorce Robert Seymon,” it is manifest that plaintiff’s final decision to divorce Seymon was not made solely pursuant to these “threats” and independent of defendant’s promises and ‘ ‘ blandishments. ’ ’ It ignores reality to say that it could properly be found that defendant made two independent sets of promises to divide his property and support plaintiff’s children and that plaintiff went through the marriage ceremony in reliance solely on the promises made after she had obtained her interlocutory decree of divorce and not upon the promises which induced her to obtain the interlocutory decree. In my estimation it cannot fairly be said, as the majority opinion says (ante, p. 225) that “the evidence was susceptible of an interpretation that the divorce from Robert was merely incidental to the agreement”; rather, the procuring of the interlocutory decree was an integral and essential part of the agreement. This case is not like Howard v. Adams (1940), 16 Cal.2d 253, 256-257 [2] [ 105 P.2d 971 , 130 A.L.R. 1003 ], There plaintiff had already decided on a divorce when defendant, plaintiff’s aunt, promised to support plaintiff and her children in consideration of plaintiff’s obtaining the divorce in Nevada. Here it cannot fairly be said that there was any evidence that plaintiff had definitely decided to divorce Seymon before defendant’s promises induced such decision. Nor is this case like Hill v. Hill (1943), 23 Cal.2d 82, 86-94 [ 142 P.2d 417 ] [property settlement between parties who had separated; before the making of the agreement the husband had sued for divorce and the wife had cross-complained for separate maintenance], or Kreiger v. Bulpitt (1953), 40 Cal.2d 97, 100-101 [2, 3] [ 251 P.2d 673 ] [contingent fee contract to defend in *239 divorce proceeding which had been instituted before the making of the contract]. I would uphold the trial court in its ruling that plaintiff should be nonsuited as to her cause of action based on defendant’s oral agreement. As to the statement in the majority opinion (ante, pp. 225-226) that ‘ ‘ Defendant claims that the evidence is insufficient to support the finding that plaintiff believed in good faith in the validity of her marriage to defendant 6 between March 17, 1951, and September 22, 1952, at least after she consulted her attorney in this action on March 20, 1952. ’ ’ I would note that defendant cannot effectively assert a lack of good faith belief of plaintiff in the validity of her marriage before March 23, 1952, because defendant in his notice of appeal in the main action stated that “Defendant specifically does not appeal from that portion of the Judgment herein adjudging that plaintiff was the putative wife of defendant . . . during the period March 17, 1951, to and including March 23, 1952.” The fact that plaintiff was advised by her attorney on March 20, 1952, that the validity of her marriage “lay in the field of unsettled law” does not preclude her from invoking the doctrine of estoppel. Relief under Section 473 of the Code of Civil Procedure from the Order Taxing Cost of Transcript and Appealability of Order Denying Relief under Section 473. I concur in the holding (ante, pp. 226-228) that the order taxing the cost of a daily reporter’s transcript may be corrected under section 473 of the Code of Civil Procedure (unless it is shown on reconsideration of the order taxing costs that, as defendant argued in the trial court and suggests on appeal, the minute order, “A daily transcript is ordered,” did not correctly reflect the order of the court). Further, I agree with the holding (ante, pp. 228-229) that the order denying plaintiff relief under section 473 is appealable. Maintenance of the Action for Abuse of Process. I agree in part with the reasons advanced in the majority opinion (ante, pp. 229-233) for the holding that plaintiff can recover in her cross-action for abuse of process. Not discussed in the majority opinion (or by the parties) are the questions whether the action for abuse of process is for injury to property or for personal injury and whether, if it is for personal injury, it can be maintained by a wife (or one who by successfully *240 asserting the doctrine of estoppel is in the position of a wife) against a husband (or one who is estopped to deny that he is a husband). It appears clear to me that plaintiff's action for abuse of process was intended by her to be and was for personal injury, that is, for mental suffering. Plaintiff in her cross-complaint did not allege any damage to property. She alleged that she “suffered mental anguish, nervous and emotional shock and strain and was humiliated, embarrassed and exposed to public shame.” The trial court found that she “suffered mental anguish and nervous and emotional shock and strain, and was humiliated and embarrassed.” It therefore appears that although the abuse of process action grew out of the misuse of process in claim and delivery, an action relating to property, the abuse of process action was in essence for an injury to person, not property, (Cf. Langley v. Schumacker (1956), 46 Cal.2d 601, 603 [3] [ 297 P.2d 977 ], characterizing an action for fraud as one for injury to property although, as the dissenting opinion points out at p. 607 of 46 Cal.2d, allegations that plaintiff suffered humiliation, disgrace, mental anguish and became ill show that the action was essentially for injuries to the person.) It is currently the rule of this state that one spouse can sue the other for injury to property, but not for injury to person. (Peters v. Peters (1909), 156 Cal. 32, 36 [ 103 P. 219 , 23 L.R.A.N.S. 699 ] [action for battery not allowed]; Paulus v. Bauder (1951), 106 Cal.App.2d 589, 591-592 [1] [ 235 P.2d 422 ] [action for injury in automobile accident sustained during interlocutory period not allowed]; Cubbison v. Cubbison (1946), 73 Cal.App.2d 437, 438 [1] [ 166 P.2d 387 ] [action for injury in automobile accident not allowed].) The rule of interspousal immunity for personal torts was recently applied in Watson v. Watson (1952), 39 Cal.2d 305 [ 246 P.2d 19 ]. It is there held that plaintiff was estopped to deny the validity of a Nevada divorce which he had procured and in reliance on which he had gone through a marriage ceremony with defendant (p. 307 [2, 3]). Therefore, it is further held, plaintiff could not sue defendant for malicious prosecution even though the marriage of plaintiff and defendant was bigamous and void. If interspousal disability to maintain an action for personal tort is to remain the rule of this state, then that rule should apply here. If plaintiff is allowed to invoke the doctrine of estoppel in order to pursue a separate maintenance action, it is proper that that doctrine should apply in her tort action. *241 However, as hereinafter explained, this court could well consider overruling the holding of Peters v. Peters (1909), supra, 156 Cal. 32, 36 , and the cases which follow it. The reasons given in the Peters case, supra, (pp. 35-36 of 156 Cal.), for not permitting suits between spouses for personal torts are that such suits would destroy “conjugal tranquility” and that if the rule of the common law (which did not permit such suits) is to be changed it should be by the clear language of a statute. The rule of interspousal immunity for torts has been tellingly criticized, and a minority of jurisdictions now permit tort actions between spouses for personal as well as property torts. (See Prosser, Law of Torts (2d ed.), pp. 674-675; McCurdy, Torts Between Persons in Domestic Relation (1930), 43 Harv.L.Rev. 1030, 1045, 1050-1053; 43 A.L.R.2d 632 .) I would prefer to reexamine the common law view of inter-spousal immunity and refuse to apply it to this case, rather than distort plaintiff’s action for damages to her feelings into an action for damage to property. None of the reasons which have been suggested in support of the common law view apply to this action. As this litigation demonstrates, any conjugal harmony of this quasi-marriage has long since been disrupted. Certainly there can be no thought of collusion between these parties. The court should not decline to entertain a meritorious action against a spouse (or one who, like defendant here, is estopped to deny that he is a spouse) because of the dubious apprehension that in some future case trifling domestic difficulties may become the subject of litigation. It has been suggested that because recovery by plaintiff “spouse” for personal injuries inflicted by defendant “spouse” would be community property (Flores v. Brown (1952), 39 Cal.2d 622, 630 [8] [ 248 P.2d 922 ]; Zaragosa v. Craven (1949), 33 Cal.2d 315, 320 [2] [ 202 P.2d 73 , 6 A.L.R. 2d 461 ]) 7 “defendant spouse would then [if recovery from him was permitted] in effect be taking the money out of one *242 pocket and placing it in the other, resulting in unnecessary circuity.” (Comment, Interfamily Tort Immunity in California (1956), 3 U.C.L.A. L.Rev. 371, 373-374.) This suggestion should constitute no objection to the maintenance of plaintiff’s action for abuse of process. Plaintiff acquired the judgment for abuse of process after she and defendant had finally separated. It was, therefore, her separate property under the rule that “The earnings and accumulations of the wife . . ., while she is living separate from her husband, are the separate property of the wife” (italics added). (Civ. Code, § 169; see Christiana v. Rose (1950), 100 Cal.App. 2d 46, 55-56 [7, 8] [ 222 P.2d 891 ].) Suggestions that any change in the rule of the Peters case (1909), supra, 156 Cal. 32 , should come from the Legislature (Paulus v. Bauder (1951), supra, 106 Cal.App.2d 589, 592 ; Cubbison v. Cubbison (1946), supra, 73 Cal.App.2d 437, 438 ) are not persuasive. The rule was originally formulated by this court in reliance upon a now outmoded common law rule, and if this court becomes convinced that the rule is unwise it should see fit to change it. (See Brown v. Gosser (1953, Ky.), 262 S.W.2d 480, 484 , 43 A.L.R.2d 626 , 631.) Recovery of Attorney’s Fees incurred in the Claim and Delivery Action as Damages in the Cross-Action for Abuse of Process. I agree with the majority’s refusal (ante, p. 233) to extend the normal rule that attorney’s fees are not recoverable as costs, damages, or otherwise in the absence of express authority or statute or contract. In my view the appeals should be disposed of as follows: In L.A. 22553, the order denying support, attorney’s fees and costs pending trial should be reversed; plaintiff’s appeal from “All orders . . . incident or leading to the aforesaid orders” should be dismissed. In L. A. 23135, defendant’s appeal from the order denying his motion to vacate the order that he pay attorney’s fees and costs on appeal should be dismissed. In L. A. 23180, the order that defendant pay counsel fees and costs should be affirmed; the order denying plaintiff’s request for support pending appeal should be reversed. In L. A. 23717, the order denying plaintiff’s motion for relief (under Code Civ. Proc., § 473) from the order taxing costs should be reversed; plaintiff’s appeal from “All orders . . . incident or leading to the aforesaid order” should be dismissed. In L. A. 23683, the main action, I would reverse the judg *243 ment for further proceedings consistent with the views above expressed. Plaintiff’s appeal from “All of the orders and rulings of the Court leading to, or incident to the . . . portions of the judgment” from which plaintiff appeals, except the appeal from the order ‘ ‘ denying to the plaintiff her necessary support, attorney’s fees and costs upon the trial” should be dismissed. In L. A. 23684, the claim and delivery action and plaintiff’s cross action for abuse of process, the judgment should be reversed insofar as it permits recovery of attorney’s fees; in other respects it should be affirmed. In L. A. 23685, so much of the order as denies plaintiff alimony, counsel fees, and costs on appeal should be reversed. Plaintiff also appeals from a portion of the order which denies injunctive relief, but since she has not prosecuted this appeal in her briefs this portion of the order should be affirmed. McComb, J., concurred. The petition of appellant Sol Carl Spellens for a rehearing was denied November 26, 1957. Schauer, J., and McComb, J., were of the opinion that the petition should be granted. Here there was an interlocutory decree but it is indisputable that, in this state, the interlocutory decree entered in a divorce action is in no sense a judgment of divorce. It neither purports to nor can affect the legal status of the parties as husband and wife. It is merely a determination, in so far as status is concerned,.that a divorce “ought to be granted” and that one party or the other or both, after the expiration of a year from entry of the interlocutory decree, shall be “entitled to a divorce.” (Civ. Code, §§ 131, 132; De Burgh v. De Burgh (1952), 39 Cal.2d 858 [ 250 P.2d 598 ].) As already mentioned, it must be recognized that here the marriage is void, as distinguished from merely voidable. (See Civ. Code, §§ 61, 80; see also §§ 63, 82, 86, 87.) The first amended complaint alleges: Defendant Sol “insisted upon a divorce of plaintiff and her former husband, for which divorce Sol . . . paid, furnishing the attorney for plaintiff therein, and directing and advising plaintiff in the conduct thereof including the arrangements for property settlement, alimony and support therein. “In the course of directing and advising plaintiff in the conduct of said divorce as aforesaid, Sol . . . directed and advised plaintiff to waive her interest in the community property of her former marriage . . . and to waive all alimony and support for her minor children (excepting only nominal amounts . . .) for the reason that, and Sol . . . expressly represented to plaintiff that, he would provide plaintiff as his wife and in consideration of her services to him as a wife, with an equal interest in his property and with support and maintenance for herself and her aforesaid minor children, following marriage to him. “Said direction, advice and representation to plaintiff was intended by Sol ... to induce, and did in fact induce plaintiff to waive her aforesaid interest and rights of alimony and support for herself and her minor children, in connection with the divorce of plaintiff and Robert Seymon, thereafter occurring. “Thereafter Sol . . . induced plaintiff to enter into her aforesaid marriage with him upon the basis of, and relying on, his express prior representation and promise to plaintiff that in consideration of marriage and plaintiff’s services to Husband as a wife, he would provide plaintiff with an equal interest in his property, and with support and maintenance for herself and her aforesaid minor children.” At this hearing plaintiff made the following offer of proof: Before plaintiff obtained her interlocutory decree of divorce from Seymon, defendant told plaintiff ‘‘ That he could see that their [plaintiff's and Seymon’s] marriage was an unhappy one . . . , that if she would marry him, that he would provide security for her and her children. That her husband was incompetent to support the family . . . [T]he plaintiff resisted his blandishments for a period of time . . . and that subsequently he asked her to tell her husband a false reason why she wanted a divorce from him and a false statement of the defendant’s proposal . . . [FJinally, as a result of these various proposals, she told her husband, with the knowledge of the defendant, the proposal that had been made to her in its entirety and asked her husband whether he wouldn’t reform so that they could continue the marriage . . . [I]nstead of taking the opportunity, her husband admitted his incompetence, that he didn’t feel he would be an economic success . . . , and he frankly suggested that she take advantage of the offer made by the defendant and obtain a divorce from him. “That she reported those facts to the defendant, who then instructed her with regard to the kind of property settlement agreement she should have, and the arrangements she should have with her husband. "That he instructed her that she wouldn’t need to retain her interest in her home . . . He told her she wouldn’t need alimony . . . “He instructed her she wouldn’t need support for the children because he would support the children . . . “That thereafter he instructed her what attorney to go to and made prior arrangements with that attorney as to handling the divorce suit, gave her the money to pay for the divorce action, and that she reported back to him on every single stage of that divorce action . . .” At the second hearing plaintiff testified as follows: About four months prior to plaintiff’s obtaining a divorce defendant "told me . . . I had to divorce my husband and he would give me all security and everything what a woman wanted, and for the children an education . . . [H]e would give me everything and would make me a full fledged partner if I would consider marriage to him. . . . Then he called me and called me and repeated his offer all the time for quite a while until I finally told him I would talk to my husband and tell him what he had suggested. . . ." Plaintiff discussed the proposal with Seymon, and told defendant that she had given Seymon "three months time to improve our condition." She finally decided on a divorce from her husband, informed defendant, and defendant made arrangements for the divorce. This fact could be a crucial one, at least as to some of the relief sought. (See Civ. Code, § 87.) A spouse’s cause of action for personal injuries, it may be noted, is treated differently from other community property in the event of the death of the other spouse (Kesler v. Pabst (1954), 43 Cal.2d 254, 258 [4] [ 273 P.2d 257 ]), or of divorce (Washington v. Washington (1956), 47 Cal.2d 249, 252 [3] [ 302 P.2d 569 ]). By statutory amendment in 1957 applicable to actions commenced and causes of action arising after effective date of the act, all damages awarded a married person in a civil action for personal injuries are the separate property of sueh married person. (Stats. 1957, chap. 2334, adding Civ. Code, § 163.5 and amending Civ. Code, $ 171c.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794801. Public record. Not legal advice.