Citations
- 49 Cal. App. 4th 720
Full opinion text
Opinion
HASTINGS, J.
In this writ proceeding we conclude that the failure to timely file a motion to quash pursuant to California Rules of Court, rule 1230(a)(2), results in a waiver of the right to assert a prior Nevada judgment of dissolution as res judicata in the present action for dissolution of marriage.
Statement of the Case
In December 1993, Elva Zaragoza (Elva) filed a petition for dissolution of marriage and alleged she had been a resident of the State of California for six months and of the County of Los Angeles for three months; she had been married to Roberto Zaragoza (Roberto) since June 12, 1977; and they had separated in October 1993. She sought an order of joint custody of the party’s two minor children, requested that property rights be determined, and sought to terminate the court’s jurisdiction to award spousal support to Roberto.
On January 11,1994, Roberto filed a response and “request for dissolution of marriage.” Consistent with Elva, he also alleged he had been a resident of the State of California for six months and a resident of the County of Los Angeles for three months. He also alleged the parties had been married on June 12, 1977, and had separated in October 1993. He requested joint custody of the children; that the court terminate its jurisdiction to award spousal support to Elva; and that the court determine the property rights of the parties.
For the next two years the parties participated in discovery, applications for orders to show cause and a settlement conference.
Trial commenced on October 23, 1995. On October 25, 1995, during cross-examination of Elva, counsel for Roberto inquired about a trip to Nevada in 1985. Counsel for Elva objected: “I’m going to object as to the relevance of this, Your Honor.” The court asked counsel for Roberto the relevance of the question and counsel stated: “Your Honor, I was not the attorney that started this action. And I have found, yesterday, that the parties were divorced in Nevada in 1985. I have a certified copy of the decree of divorce, an absolute divorce.” Upon further inquiry, Elva admitted that the copy of the decree proffered by counsel was in fact a divorce that the two parties had obtained in Nevada. Upon further examination, Elva admitted that she had not “remarried [Roberto] through a ceremony and a license . . . after 1985.”
Counsel for Roberto moved the Nevada judgment into evidence and argued that if there was a valid divorce in Nevada then the current proceeding could not go forward. He asked that the current action be dismissed for lack of jurisdiction. The following exchange took place: “The Court: Your client is a master of the restaurant business and has accumulated a great deal of wealth through his ability to be a business person, and he didn’t tell you [counsel]? [