Opinion
5-27-1952
DIMON v. DIMON. * Civ. 14504, 14894.
Johnson, Harmon & Henderson, San Francisco, for appellant. Samuel L. Fendel, Gerald D. Marcus, San Francisco, for respondent.
DIMON
v.
DIMON. *
May 27, 1952.
Rehearing Denied June 26, 1952.
Hearing Granted July 24, 1952.
Johnson, Harmon & Henderson, San Francisco, for appellant.
Samuel L. Fendel, Gerald D. Marcus, San Francisco, for respondent.
NOURSE, Presiding Justice.
These are appeals by the former husband from an adverse judgment in the action of his former wife for maintenance and support for herself and the children of the parties and the husband's cross-action regarding property allegedly held by the wife in his behalf (No. 14,504) and from an order granting counsel fees, costs and support of the minor daughter pending the appeal from said judgment (No. 14,894).
At the outset it should be said that this is not one of those cases of the 'traveling husband' calling for the outpouring of judicial tears. It is just the reverse. Here there was no abandonment by a traveling husband. To the contrary, when the husband became ill and unable to provide a sufficient number of servants to maintain the family home the wife kicked him out of the home he had provided for his family, seized all the estate which she sold, appropriated the proceeds and decamped to the state of Oregon with the two children. By her action she forced her husband to walk the sidewalks of New York begging money for his livelihood. Ever since the separation the wife and children have been well provided for while the husband has been the object of charity.
Plaintiff and defendant were married in Portland, Oregon, on May 12, 1926. Two children were born of the marriage: one on November 24, 1928, the other on January 20, 1933. At the time of their separation (September 1, 1945) the parties were living in Connecticut in a home purchased by defendant with his own funds, but title to which had been placed in the name of plaintiff.
For some years following the marriage the defendant had been gainfully employed, first, as vice-president in his father's shipping company, and, upon the death of the father, as president of the company. In 1944 the company lost at sea its only ship and went into bankruptcy. Since then the defendant has been unemployed. From his mother's estate defendant had received approximately $80,000 part of which he put in the Connecticut property.
On September 24, 1945, the wife filed a suit for divorce in Connecticut. Defendant husband, then in New York, was constructively served by registered mailing of a copy of the summons and complaint. Defendant made no appearance in that action and plaintiff was awarded a decree of divorce on March 1, 1946, and granted custody of the two children.
At the time of the trial in this action she still had over $12,000 left out of the proceeds of the home property. The Connecticut court also purported to award to the plaintiff $15 a week alimony for herself, and $25 per week for the support of the children. This decree was not appealed from or modified and became final.
On August 4, 1947, plaintiff commenced in San Francisco the suit now before this court. The wife and the two children were then domiciled in and residents of the State of Oregon, the husband domiciled in and a resident of Reno, Nevada. Defendant was personally served in San Francisco. Plaintiff sought in her first cause of action support for the children from the date of the divorce until their majority, and in her second cause of action 'support and maintenance' for herself from the date of divorce until her remarriage on August 31, 1948. Plaintiff also requested costs and counsel fees. The action was not based on the awards of alimony and support in the Connecticut decree; it was alleged that they were without force and effect because the court did not obtain jurisdiction over the person of defendant.
Defendant answered and cross-complained. The first cause of action in his corss-complaint alleged that the plaintiff sold real estate which, though it stood in her name, she held for his use and benefit, and the second cause of action alleged, in essence, a conversion by plaintiff of personal property belonging to the defendant. Defendant asked for an accounting and a judgment for the proceeds of the real estate, and a judgment for the value of the personal property.
In the judgment filed November 25, 1949, plaintiff was awarded $1,950 'for alimony and support' for herself from the date of her divorce until her remarriage calculated at $15 a week; $1,850 for the 'support, care and maintenance' of the two minor children from the date of the divorce, March 1, 1946, to the date of the commencement of this action on August 4, 1947, calculated at $25 a week; (both awards were precisely the same as those in the Connecticut decree) $75 per month for the support, care and education of the two children from August 4, 1947, until November 24, 1949, on which date one of the minors would attain his majority, the award then to be reduced to $37.50 per month for the support of the other minor until her majority and further order of the court, and $548.15 for counsel fees and costs. It was decreed that defendant take nothing by his cross-complaint.
After the husband had timely appealed from said judgment the wife moved for the award of counsel fees and costs and for support of the minor child pending the appeal, which motion defendant opposed. On September 15, 1950, the court made both a minute order for $750 counsel fees and $250 costs and a formal order, the latter ordering the same and moreover the payment pending appeal of $37.50 a month awarded as support of the daughter Diane, from which order appellant timely appealed.
As to the action instituted by Mrs. Dimon appellant contends that the court lacked authority to make the several awards stated and that moreover the awards were erroneous because the evidence showed that defendant was entirely without ability to pay.
Wih respect to the action for maintenance of the former wife it must be recognized that it is held as a general rule that when she has obtained a decree of divorce in which no provision for alimony is made and the court has not reserved the power to do so, no permanent alimony can subsequently be imposed. Puckett v. Puckett, 21 Cal.2d 833, 841, 136 P.2d 1, and cases there cited. Although this rule is generally accepted also in other states, even when the divorce decree was obtained in a foreign jurisdiction, 17 Am.Jur. 482; Divorce and Separation § 626, an exception is recognized--but not universally--when the wife secures the divorce from a nonresident husband on constructive notice so that he divorce court lacks jurisdiction to pass on the question of alimony in which case a subsequent application for alimony is held not to be barred. 17 Am.Jur. 482 and 443, Divorce and Separation §§ 627 and 554; Annotation 42 A.L.R. 1385, 1386 et seq.; Hutton v. Dodge, 58 Utah 228, 198 P. 165; Woods v. Waddle, 44 Ohio St. 449, 8 N.E. 297; Stephenson v. Stephenson, 54 Ohio App. 239, 6 N.E.2d 1005; Wick v. Wick, 58 Ohio App. 72, 15 N.E.2d 780; Nelson v. Nelson, 71 S.D. 342, 24 N.W.2d 327; Spradling v. Spradling, 74 Okl. 276, 181 P. 148; Adams v. Abbott, 21 Wash. 29, 56 P. 931. For the contrary view see Darby v. Darby, 152 Tenn. 287, 277 S.W. 894, 42 A.L.R. 1379; Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659; Doeksen v. Doeksen, 202 Iowa 489, 210 N.W. 545; Staub v. Staub, 170 Md. 202, 183 A. 605. Eldred v. Eldred, 62 Neb. 613, 87 N.W. 340 cited by appellant for the latter view has been overruled by Bodie v. Bates, 95 Neb. 757, 146 N.W. 1002, 1007, L.R.A.1915E, 421.
In this state there is no specific decision as to the validity of the above exception in behalf of a wife who has obtained a divorce in a court that had no jurisdiction over the person of the husband. In Howell v. Howell, 104 Cal. 45, 37 P. 770, the wife brought an action for divorce in California, the husband, who then lived in Wyoming, being served by publication and making default. The complaint did not ask for alimony and the decree did not grant it. After the judgment had become final the wife filed a petition in the divorce suit for support for herself and her minor children on the ground of indigence in which matter the defendant appeared. The Supreme Court reversed an order granting the wife $100 a month on the ground that the court had no jurisdiction to grant alimony where the matter had not been litigated in the original action, and the final decree did not grant alimony or reserve jurisdiction to do so subsequently. Dicta in later California cases indicate a tendency to permit a separate action for alimony by a wife when the court in the divorce action had no jurisdiction over the person of the defendant. In Matter of McMullin, 164 Cal. 504, 129 P. 773, the holding was that a father was not criminally liable in California for nonsupport of his child after a decree of divorce had been obtained against him in another state on substituted service, which decree awarded the custody of the child to the mother, without requiring him to contribute to its support and after the mother obtained letters of guardianship of the child in this state but no order against the father for support. The court added however, 164 Cal. at page 507, 129 P. at page 774, that it was 'within the power of the wife, under supplementary proceedings brought in this state, with personal service upon the former husband, to have procured, if the facts warranted, an award of the custody of the children, with provision for her own and their support.' (Emphasis ours.) In De Young v. De Young, 27 Cal.2d 521, 165 P.2d 457, the Supreme Court unanimously affirmed a judgment which denied separate maintenance to a wife on the ground that prior to the institution of her action the husband had obtained a divorce in Mexico on constructive service. In a concurring opinion three justices made the reservation that no implication was intended that such a foreign divorce decree validly terminating the marital status necessarily constituted a defense to an action for support. The concurring opinion distinguishes separate maintenance, involved in that case, as to which all justices agree that it presupposes a continuing marital status, and alimony, not involved. In Bernard v. Bernard, 79 Cal.App.2d 353, 179 P.2d 625, the wife brought a divorce action in California, the husband who then resided in Arizona being served constructively. The court granted an interlocutory decree by default, awarding plaintiff support for herself and her minor son. After the support provisions had been vacated on motion of the husband appearing specially the wife instituted a separate action in equity for permanent maintenance for herself, support for the minor son and attorney's fees and costs and moved for granting pendente lite of the same. The appeal was from the order granting temporary relief. With respect to the question whether in the given situation a wife could maintain an independent action in equity for alimony the court concluded, 79 Cal.App.2d at page 357, 179 P.2d at page 627: 'Inasmuch as it was impossible for the plaintiff to have her right to alimony adjudicated at the time the interlocutory decree was granted she is entitled to her day in court, and may determine the question in an independent suit in equity, especially since the action was commenced while the parties were still husband and wife.' (Emphasis ours.) The reasoning of the Bernard case is in point when it is argued that sec. 139, Civil Code, does not necessarily limit the remedy for the right to permanent alimony to a proceeding in the action for divorce, where other jurisdictions with statutes similar in wording have allowed an independent action for alimony even after a final decree of divorce obtained on constructive service. Among the cases cited for this point was Wick v. Wick, 58 Ohio App. 72, 15 N.E.2d 780 supra, and Hutton v. Dodge, 58 Utah 228, 198 P. 165, supra. However, Patterson v. Patterson, 82 Cal.App.2d 838, 843, 187 P.2d 113, in a case similar to De Young v. De Young, supra, on which it relies, distinguishes Bernard v. Bernard because in that case the parties were still husband and wife when the support money was granted.
When we turn to an examination of our statutory law there seems to be substantial merit in appellant's contention that a wife's right to sue for alimony or support was limited to the period when the parties were husband and wife. Sections 136, 137, 138 and 139 of the Civil Code. The pertinent language is found in section 137 reading: '[W]hen the husband or wife has any cause of action for divorce * * * he or she may * * * maintain in the superior court an action against her or him for permanent support and maintenance of himself or herself or of himself and children, or of herself and children.' The section has been uniformly interpreted as limiting the court's jurisdiction to instances where there is an existing marital relation. This rule is positively stated in Colbert v. Colbert, 28 Cal.2d 276, 279, 169 P.2d 633, 635, as follows: 'The existence of the marriage is a jurisdictional prerequisite for the right of the court to order support, costs, and counsel fees pendente lite in an action for divorce or separate maintenance. Carbone v. Superior Court, 18 Cal.2d 768, 771, 117 P.2d 872, 136 A.L.R. 1260; Talbot v. Talbot, 218 Cal. 1, 2, 21 P.2d 110; Parmann v. Parmann, 56 Cal.App.2d 67, 69, 132 P.2d 851; In re Cook, 42 Cal.App.2d 1, 3, 108 P.2d 46.'
Summarizing the foregoing it is apparent that we have no authority directly in point supporting plaintiff's right to pursue the remedy demanded herein. The concurring opinion in the De Young case and the opinion of the court in the Bernard case are both judicial expressions of sympathy for the indigent wife and children recognizing the legal difficulties confronting them under the circumstances there noted. In seeking to provide a remedy the justices purport to find a distinction between 'support' and 'maintenance' since all agreed that an action for 'maintenance' would not lie after the parties had been divorced. The distinction attempted is on nebulous lines as a reference to any dictionary would disclose, but the humanitarian view cannot be lightly treated. The illness for which a cure is sought has long been recognized as an austere and unfortunate barrier in the maintenance and care of abandoned wives and children. Efforts made to enforce the abandoning party to support those upon whom the law casts the duty of support have been frequently frustrated through the conflicting laws of the various states. Fortunately we are not required to decide whether the expression of opinion of the minority in the De Young case should be followed because the legislature has met the difficulty by enacting the Reciprocal Enforcement of Support Law, Stats.1951, Ch. 694, Code Civil Proc., section 1650 et seq. Briefly the act provides that the obligee (the party entitled to support) may file a complaint in the county of her residence upon which the court shall transmit a certificate to the court of defendant's residence for a hearing. The latter court may then enter an appropriate order commanding the defendant to pay into the court the award in favor of the wife and children. This act did not become effective until after the complaint herein was filed.
Though this statute has not been interpreted in any case of this state which we have found, it is fair to assume that its passage was a recognition by the legislature of the need of some such method to enforce the obligation of the traveling husband to support his wife and children under the circumstances noted.
However, without further speculation, this court is bound by the settled rule that, prior to this statute, the jurisdiction of the court herein was limited to the status while the marriage relation was still in existence and that the court was without jurisdiction to grant maintenance or support in the absence of that relation.
Appellant's contention that the Connecticut judgment is res judicata with respect to alimony because it purports to grant it and that therefore it prevents relitigation of that matter is without merit. It is not denied that the Connecticut court was without jurisdiction over the person of the defendant; neither was there any jurisdiction to adjudge alimony in rem, no res having been brought under the control of the court by any process, 50 C.J.S., Judgments, § 908, page 548. A judgment is not res judicata and is no bar to relitigation in so far as it is void, e.g., for lack of jurisdiction. 50 C.J.S., Judgments, § 617, pages 38, 39; for application to alimony in a foreign divorce decree compare 17 Am.Jur. 579-580, Divorce and Separation, § 763; compare also Restatement, Judgments, § 71.
Neither do we agree with appellant's contention that respondent was estopped to challenge the jurisdiction of the Connecticut court to grant alimony because the judgment was rendered at her instance and she accepted the divorce under it. In many situations it has been held that a party at whose instance a judgment was rendered is not entitled in a collateral proceeding to contend that it is void, and this rule has been applied frequently with respect to divorce decrees, Ann. 3 A.L.R. 535, 540, especially when one of the parties had remarried on the force of it. Rediker v. Rediker, 35 Cal.2d 796, 805-806, 221 P.2d 1, 20 A.L.R.2d 1152. Although it has been said that the reason on which these decisions rest is not technically the doctrine of estoppel, but the principle that a person, having invoked the jurisdiction of a court, cannot be heard thereafter in a collateral proceeding to question the jurisdiction he invoked, 1 Freeman on Judgments, 640, the rule cannot be applied automatically and indiscriminately when the party invoking it has not been induced to change his position, no rights of other parties have intervened, and application of the rule would obstruct equity instead of protecting it. In this case appellant did no make any payment on the Connecticut award and he does not deny that it is invalid as a judgment in personam.
Combining the different statutory provisions and decisions we understand the law to be that if the mother has the custody of a child it is primarily her duty to see that the child receives what is necessary for its support and education, but that the father who is deprived on the custody is not released from that same duty; also that a proper court has power in the interest of the child at any time to order the father to pay for its support and education in whole or in part in accordance with the father's ability to pay and the further circumstances of the case and to modify existing orders.
Ordinarily such proceedings are brought in the state where the minor child resides, frequently sanctioned on the theory that the state is a paternal guardian of all the minor children resident therein. We have not been informed of any case which is brought in a state where neither the mother, the father, nor the children reside. The suggestion that plaintiff should be permitted to proceed in equity is not persuasive. Equity follows the law and frequently provides a remedy where none exists under the law. But in a code state where an adequate remedy is provided in one of the codes, we cannot go beyond the limitations prescribed in the codes and pursue a remedy which they do not sanction.
Appellant contends that in this case no separate action for support of the children can be maintained in a California court because not only was the divorce not obtained in California but neither the parents nor the children had become domiciled in or residents of California, defendant had no property there and the State of California had no interest in the support of the minors. Respondent has not cited any case in which it was held that an action for support of children could be maintained under such circumstances and we have found none. Here the action was not brought by the minor children, nor by the mother as their guardian. The action was brought by the mother mainly to reimburse herself for moneys which she had paid out in the support of the minors. No reason has been advanced why there should be a distinction (in the matter of the court's jurisdiction) between a recovery for the wife's own support and a reimbursement of moneys paid by her for the children. Appellant also denies the court's power to grant counsel fees and costs in the main action because section 137, Civil Code is not applicable when no divorce action was pending, no award can be made for past services and because no motion and showing of necessity had preceded the award. It follows, of course, that if the court had no jurisdiction to entertain the action it could not grant counsel fees or costs. Section 137, Civil Code; Patterson v. Patterson, 82 Cal.App.2d 838, 842, 187 P.2d 113.
On the issue of appellant's ability to pay the awards made the facts are as follows:
At the time of the marriage of the parties appellant was employed by a steamship company of which his father was president. His father died prior to the year 1930. He succeeded his father as president of two companies connected with the steamship 'Mandalay' from which employment together he had received a salary of from $500 to $1000 a month. When his mother died in 1930 he inherited about $80,000.
From 1926 to 1936, during which time the parties resided in Bronxsville, New York, they lived expensively keeping yachts and polo ponies. They had several servants in the later part of this period. In 1936 a farm in Roseberry, Connecticut, was acquired by appellant in the name of Mrs. Dimon. A mortgage loan of $5000 was given by a bank and the balance of the purchase price amounting to approximately $8000 was paid by appellant. He thereafter spent approximately $40,000 in improving the property. This property respondent sold after the separation and appropriated the proceeds for her support and the care of the minor children.
Appellant stopped working early in 1944 when the Mandalay companies lost at sea their remaining ship and went out of business. For several months before that appellant had not been able to collect his salary. The Dimon shipping company had gone through bankruptcy. When his earnings stopped the Dimons lived on savings and from the operation of dog kennels (breeding pedigreed dogs) on the farm and the liquidation of some of the assets of the place. Appellant tried to get other jobs with steamship companies without success. He then went into a long period of excessive drinking and became ill with bronchial pneumonia and nervous exhaustion.
On September 1, 1945, Mrs. Dimon told her husband to leave and he did. He went to New York where he lived for some weeks in a hotel borrowing money for his expenses until he got transportation to Reno, Nevada, where he has since been living with an aunt at her home; since his arrival there appellant has been supported completely by her. He has no business, employment, profession or any other source of income and he renders no services to his aunt. He testified that since his arrival in Reno he had not been able to work; he was under treatment by a physician for illness. He made a trip to Florida for his health and several shopping trips to San Francisco. Mrs. Dimon conceded that she did not know of any assets which her husband had.
The law relating to the above situation is found in Merritt v. Merritt, 220 Cal. 85, 88, 29 P.2d 190, 191, where it is said: "Alimony * * * should be ordered upon evidence that a husband himself has means of compliance or a capacity to acquire them if he make reasonable effort. * * * Alimony * * * where the husband is without property may not be based on the husband's hope of gratuities or the court's surmise that he will receive them." And in Webber v. Webber, 33 Cal.2d 153, 160, 199 P.2d 934, 939, it is said: 'Not only the 'husband's [actual] earnings' but 'his ability to earn money' by the use of reasonable effort will affect the propriety of an alimony award.' The same rule is mentioned in an action for support of a minor child of divorced parties in McGann v. McGann, 82 Cal.App.2d 382, 389, 186 P.2d 424, cited in the Webber case, supra. As there was no evidence of assets of appellant, and the wealth of the aunt may not be considered, the question to be decided is only whether there was any substantial support for the finding of the trial court to the effect that appellant, who in 1947 was 45 years old, had since the divorce decree of March 1, 1946, wilfully abstained from reasonable efforts to obtain gainful employment although he was in good health and was capable of earning $500 to $1000 a month as he had done before.
The undisputed evidence is that the only business in which the appellant had been gainfully employed was the shipping business and that had been lost to him without fault of his. The trial court's finding that he was still able to make from $500 to $1000 a month is not based on any evidence. He certainly could not make that amount in the shipping business on the deserts of Nevada. Where would the court send him to get such a job? The evidence is undisputed that for many years after his loss he tried to engage in that business without success. The award here amounts to several thousand dollars and is continually increasing. It is based on pure conjecture and is unsupported by any competent evidence.
Since the judgment must be reversed for want of jurisdiction it would serve no purpose to discuss the issues raised by appellant in his cross-complaint.
Judgment and order are reversed.
GOODELL, Justice.
I concur:
This concurrence is based primarily on the plain language of the statute.
Section 136, Civil Code, provides: 'Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children * * *.' (Emphasis added.)
Section 137 provides: 'When an action for divorce is pending, the court may, in its discretion' require the payment of alimony or support. It also provides: 'During the pendency of any such action' the court may require payments for alimony, costs, attorney's fees and support and maintenance. (Emphasis added.)
Section 138 provides that: 'In actions for divorce the court may, during the pendency of the action', or during minority, make orders for the custody and support of the children. (Emphasis added.)
Section 139 provides: 'Where a divorce is granted for an offense of the husband' he may be compelled to provide for the maintenance of the children, and the support of the wife. (Emphasis added.)
Section 140 provides that the husband or wife may be required to give security for their payments.
The language of the 5 sections just emphasized shows a consistent and studied legislative purpose to confine and limit the powers of the court to the period of time when actions for divorce, annulment and separate maintenance are pending, which of course includes time on appeal, § 1049, Code Civ.Proc., and such further time (e. g., during minority, or by a reservation in a decree) as may be properly within the scope of the same action.
"The code establishes the law of this state respecting the subjects to which it relates' (Civ.Code, § 4), and section 137 of the same Code provides: 'While an action for divorce is pending the court may in its discretion require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.' * * * An application for alimony can be made only 'while an action for divorce is pending,' * * *. It is a collateral proceeding or episode within the action, authorized for a particular purpose, but dependent for its maintenance upon the existence of the action.' Harrison, J., concurring in Hite v. Hite, 124 Cal. 389, at pages 397-398, 57 P. 227, at page 231, 45 L.R.A. 793. (Emphasis added.) In Chief Justice Beatty's concurring opinion in the same case he says, 124 Cal. at page 395, 57 P. at page 230: 'It is only a wife who can claim alimony (Civ.Code, § 137) * * *.' In Sharon v. Sharon, 67 Cal. 185, 199, 7 P. 456, 465, 635, 8 P. 709, the court said: 'It is, of course, indispensable to the granting of alimony at all, that the relation of husband and wife, in fact, exists.' See, also, Dunphy v. Dunphy, 161 Cal. 87, 90-91, 118 P. 445.
In Howell v. Howell, 104 Cal. 45, 37 P. 770, 771, the wife sued in May, 1890 for divorce on the ground of desertion. The defendant lived in Wyoming territory and was served by publication and made default. In September, 1890 a decree for plaintiff was entered which awarded her certain property, but there 'was nothing in either the complaint or the judgment about alimony.' In January, 1892 plaintiff filed in the same action a petition for alimony for herself and support for the minor children. The court awarded her $100 a month commencing with the date of her petition (not, as here, from the date of the divorce decree). On appeal the order was reversed on the ground that the court had no jurisdiction to make the order because no action was pending; the judgment had become final. In its discussion, 104 Cal. at page 47, 37 P. at page 771, the Supreme Court refers to the language of § 137 'while an action for divorce is pending' (referred to above) and to the language of § 139 as well.
In the Howell case the plaintiff, a resident of California, had obtained her divorce here; in the instant case Mrs. Dimon was a resident of Connecticut and obtained her divorce there. In both cases the defendant was not served with process within the state of the residence or the forum; in neither case was there an enforcible alimony order. In the Howell case the wife, after the divorce judgment had become final, unsuccessfully sought alimony in the same action. In the pending case the wife, after her Connecticut divorce had become final, sought and obtained, in a new, independent action with no underlying California antecedents an alimony order in this state of which she was not a resident. It is difficult to see how this could be accomplished when Mrs. Howell, a resident of California, was denied the same remedy on the ground that her divorce decree had become final and her rights had become circumscribed by its provisions. In short, this plaintiff fared better than she could have had she been a resident of California. Howell v. Howell, supra.
The Howell case has been consistently followed in numerous cases, including McClure v. McClure, 4 Cal.2d 356, 359, 49 P.2d 584, 100 A.L.R. 1257; Tolle v. Superior Court, 10 Cal.2d 95, 97-98, 73 P.2d 607 and Puckett v. Puckett, 21 Cal.2d 833, 841, 136 P.2d 1. In Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923, the argument was made that, after a divorce (in Nevada) the California courts under their equity powers and independently of statute, could award support to the former wife. At page 237 of 70 Cal.App.2d, at page 925 of 160 P.2d, the court said 'The answer to this argument lies in the fact that the power to award support grows out of the marital relation', quoting Howell v. Howell, supra, and citing also Hite v. Hite, 124 Cal. 389, 57 P. 227, 45 L.R.A. 793 and Bancroft v. Bancroft, 9 Cal.App.2d 464, 50 P.2d 465. The court added 'As Mrs. Calhoun was not the wife of defendant at the time she instituted this action against him, we can find no error in the trial court's refusal to require him to support her.' A hearing by the Supreme Court was denied. See, also, Patterson v. Patterson, 82 Cal.App.2d 838, 842, 187 P.2d 113 and Hinson v. Hinson, 100 Cal.App.2d 745, 746, 224 P.2d 405.
In De Young v. De Young, 27 Cal.2d 521, 165 P.2d 457, 460, the wife sued in Los Angeles County in 1942 for separate maintenance claiming that she was still the wife of defendant because a Mexican divorce which he had obtained in 1936 had no validity. The trial court held that on such an attack on the Mexican judgment the burden was on the plaintiff to show its invalidity; that she had not met that burden, and judgment went for defendant. It was affirmed on the ground already stated, the court holding that there was sufficient evidence to sustain the finding that the husband had acquired a bona fide residence in Mexico before he sued there. That is all the case holds.
In his concurring opinion Mr. Justice Schauer says: 'Such concurrence in the opinion, however, is subject to the reservation that there is intended no implication that a foreign divorce decree, although fully valid insofar as the determination of marital status is concerned, necessarily constitutes a defense to an action for support.'
Later in the concurring opinion he says: 'The personal rights of the spouses in property not within the jurisdiction of the acting court remain subject to litigation in the proper forum. (Emphasis added.)' Later: 'And I am of the view that rights to support in the form of alimony as of the date of the divorce (which alimony may continue into the single status), at least where there is no adjudication of fault [citation], may well be subject to judicial determination in a subsequent action in a proper forum having personal jurisdiction over both parties. Such an action, being based on the marital status as it existed prior to the divorce, would have to be instituted before the statute of limitations or laches barred it. The statute would normally start to run as of the date of the decree but would, of course, be tolled by absence of the party defendant from the state.' (The emphasis is that in the concurring opinion.)
With respect to the language 'a subsequent action in a proper forum having personal jurisdiction over both parties.' While Mrs. Dimon sued in California, she was not a resident of California or of San Francisco, § 128, Civ.Code, never had been and is not now, so far as this record shows. When she filed this action after she had been divorced in Connecticut several years earlier, she could not have alleged residence in the county or the state. The court acquired jurisdiction of the person of the defendant husband only on an occasional trip of his to San Francisco from Nevada, where he was then living. The plaintiff-wife was in a California court only because she, then a resident of Oregon, and without any domiciliary background in California, entered the open door of our courts.
Referring now to the last sentence quoted above: Could 'Such an action being based on the marital status as it existed prior to the divorce'--the Dimon divorce granted in Connecticut--be properly entertained in California when an application made after a final decree granted in our own courts 'based on the marital status as it existed prior to the divorce' would have to be denied in this state for lack of jurisdiction, Howell v. Howell, supra? (What has just been said presupposes, of course, that there is no 'full faith and credit' question in this case--as there is not at least with respect to alimony).
The distinction between the De Young case and the Dimon case is clear from the following sentence in the concurring opinion: 'Here, however, the action * * * does not seek alimony based on the former marital status. It is for separate maintenance and plaintiff relies upon the allegation 'That she is the wife of Clarence De Young.' * * * Separate maintenance differs from alimony in that it presupposes a continuing marital status. The right to it cannot be established without proof that such status is existent as of the time of trial. Proof of prior dissolution of the marriage is, therefore, a complete defense to such an action.'
In view of the reversal there is no reason to discuss the defendant's ability to pay, or his counter-claim.
DOOLING, Justice.
I dissent. By what, to my mind, is an unnecessarily strict construction of our statutory law my associates, by somewhat different routes of ratiocination, have concurred in a conclusion which places California, in the field which this case covers, among the most backward and unenlightened States of the Union. Its effect is to hold that if a husband deserts his wife and permanently flees from the matrimonial domicile the wife is put to the harsh election either of never divorcing him or of sacrificing forever all right of future support for herself however necessitous her circumstances, however affluent and able to support her her husband may be, and however flagrantly and brutally her husband may have treated her. She is perpetually foreclosed from support without ever having had a day in a court in which that right could be litigated. To these unjust and shocking lengths the court feels itself driven by a narrow construction of the language of sections 136-140, Civil Code.
In other jurisdictions with similar statutory language the courts have not found themselves so impotent. See the cases and statutes discussed in the note in 34 Cal.Law Rev. 192, 198-199. Nor unless a majority of our Supreme Court tells us so in language unmistakably clear will I acknowledge that our legislature has intended to enact such a barbarous rule of law. Until that time I shall believe the law to be as suggested in the concurring opinion in De Young v. De Young, 27 Cal.2d 521, 527, 165 P.2d 457, although this is a stronger case since in De Young the husband had secured the divorce on substituted service not the wife. Many of the cases from other jurisdictions supporting the view that where the court which grants the divorce lacks personal jurisdiction of the husband and hence cannot make a valid award of alimony to the wife, the wife after the divorce may obtain an alimony award against the husband in an action in another jurisdiction in which personal service on the husband can be obtained are cited in the opinion of the Presiding Justice. See also the cases cited in Bernard v. Bernard, 79 Cal.App.2d 353, 357, 179 P.2d 625, and in 34 Cal.Law Review, supra.
Being under no such assumed statutory compulsion in the matter of the award of maintenance for the minor children, since it is settled in California that a divorced wife who has the custody of minor children may bring an independent action in this state against the father for their support, Dixon v. Dixon, 216 Cal. 440, 14 P.2d 497; Davies v. Fisher, 34 Cal.App. 137, 166 P. 833, the Presiding Justice finds a want of jurisdiction to make an award for the children's support in the fact that 'neither the parents nor the children had become domiciled in or residents of California, defendant had no property there and the State of California had no interest in the support of the minors.' A reading of Mr. Justice Goodell's opinion leaves me uncertain as to the exact ground on which he concurs in reversing the award for the children's support. Actions for support of children are actions in personam and do not effect a change in status. It is for that reason that even the court of the matrimonial domicile cannot make a valid award against the father without personal service upon him. De La Montanya v. De La Montanya, 112 Cal. 101, 117, 44 P. 345, 32 L.R.A. 82. 'As a general rule, personal actions are transitory and may be entertained wherever jurisdiction of the parties can be maintained.' 21 C.J.S., Courts, § 40, page 48; 7 Cal. Jur. 586. If the rule announced by the majority is adopted it will result in the traveling father, who has sufficient means to flit from jurisdiction to jurisdiction while maintaining a domicile in some jurisdiction to which he seldom if ever returns, gaining a practical immunity from the liability to support even the most destitute of minor children. Such a rule is neither compelled by justice nor authority. I agree with the pragmatic approach of the Kansas Supreme Court which said in Riggs v. Riggs, 91 Kan. 593, 138 P. 628, 629-630: 'The obligation of the father being personal, it must be enforced where he can be found * * *.' Cf. Restatement Conflict of Laws, sec. 457(c) and comment (a).
I refrain from discussing the defendant's ability to pay further than to say that in my judgment the evidence supports the findings of the court. I agree with Mr. Justice Goodell that if the judgment is reversed on jurisdictional grounds no purpose can be served by discussing issues which the court could only decide if it had jurisdiction.
I cannot find that the Reciprocal Enforcement of Support Law recently adopted by our legislature is an effective palliative for the harshness of the rules announced in this case. It is not and cannot be retroactive so that it furnishes no comfort to the wife and minor children in this case and the elusive husband of the future has only to pick as his asylum some jurisdiction in which it has not been enacted to avoid its perils.
The end product of the rules announced in this case will be to make California a welcom oasis for the carefree fugitive from all family responsibilities in a generally unfriendly world. --------------- * Subsequent opinion 254 P.2d 528.