Schoch v. Superior Court (11 Cal. App. 3d 1200, 1970)

Opinion

SIMS, J.

By petition for a writ of mandate, petitioner, a non-resident, prays that this court command respondent court to enter an order quashing the service on him in the State of Colorado of summons in an action in which his resident ex-wife seeks to establish a Nevada decree of divorce and to modify, by doubling, the amount provided in that decree for the support of the party’s two minor children who have been and are in her custody.

From the petition and the answer filed thereto it appears that the ex-wife, as real party in interest, contended and contends, and the trial court, in denying petitioner’s motion to quash the service of summons, impliedly found, that the petitioner’s obligation to support his two children, which existed by virtue of the parties joint residence in California at the time the Nevada divorce decree was secured, supports a finding that petitioner was a resident of this state at the time the cause of action asserted in the current pending action arose, and, therefore, establishes jurisdiction under the law as it existed prior to July 1, 1970. (See former Code Civ. Proc., § 417.) It is concluded that the incorporation of the obligation of child support in the Nevada decree, and the subsequent performance under that decree up to the time of the alleged change of circumstances precludes reliance upon any obligation to support which antedated petitioner’s removal of his residence from California. The peremptory writ must issue.

From the record it appears that the petitioner, who is in the Air Force, claims to have always been a domiciliary of Pennsylvania. It is admitted that he was residing with his wife and children in Sacramento, California, before the Nevada divorce was secured by his wife in 1963 and that he did not give up his residence in California until 1966, three years after the divorce. The wife established residence in Nevada solely for the purpose of securing the divorce, but thereafter she returnd to California and continued to reside in this state with the children. She has remarried and moved to Contra Costa County where the pending action was filed. Petitioner was residing in Colorado at the time the present California action was commenced, October 27, 1969, and when he was served, November 13, 1969. Jurisdiction under section 417 is asserted because he resided in this state at the time the cause of action for divorce arose in 1963. (See Soule v. Soule (1961) 193 Cal.App.2d 443, 445-446 [14 Cal.Rptr. 417].)

The emphasis on the cause of action for divorce is a red herring which directs attention from the true criteria upon which this case must rest. The present complaint prays for the following relief: “1. That the decree rendered in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe be established as a foreign judgment in Superior Court, County of Contra Costa, California; [