Procedural Posture

Procedural Posture

Plaintiff wife brought an action seeking a divorce from defendant husband, who later died and was represented by an executor. The Superior Court of the City and County of San Francisco (California) entered one judgment declaring the validity of the alleged marriage, decreeing a divorce, and making a property division, and a second order directing the payment of counsel fees and alimony. The executor appealed.

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The executor claimed that the promise to keep secret the contract of marriage for a period of two years, unless the husband waived that stipulation, constituted not a contract of marriage but a contract for illicit intercourse. The executor also claimed that the wife was not entitled to temporary alimony or attorney’s fees. The court held that based upon the facts, the parties’ agreement to become husband and wife was complete and that the relevant statute did not require a public assumption of the marriage relation to create a presumption of consummation. The court held that there was no doubt that alimony should have been paid to the wife, but that given the fact the existence of the marriage was contested the award granted the wife seemed excessive. The court further determined that the order directing the husband’s estate to pay counsel fees was inappropriate because the wife had an unnecessary array of counsel representing her, because the award was too large, and because it constituted an abuse of the legal discretion of the lower court.


The order validating the marriage and entering a divorce decree was affirmed. The order awarding alimony was modified to reduce the amount allocated and the order directing the husband’s estate to pay counsel fees was reversed.