Opinion
5-1-1958
Martha M. BARBER, Plaintiff and Respondent, v. Marion M. BARBER, Defendant and Appellant. * Civ. 22759.
MacBeth & Ford, Los Angeles, for appellant. James N. Reese, Los Angeles, for respondent.
Martha M. BARBER, Plaintiff and Respondent,
v.
Marion M. BARBER, Defendant and Appellant. *
MacBeth & Ford, Los Angeles, for appellant.
James N. Reese, Los Angeles, for respondent.
LILLIE, Justice.
Defendant husband appeals from a judgment in favor of plaintiff wife entered in a separate maintenance action. It awards Mrs. Barber certain community property as her separate property, orders the husband to pay a monthly sum of $1 for the wife's support and awards the sum of $50 per month for support of the minor son whose custody is granted to Mrs. Barber. In his appeal, defendant makes no attack upon that portion of the decree awarding child custody and child support. The parties were married on February 14, 1942, in Oklahoma and have two minor children; Cedric, aged 10 years, who resides with his mother and Mae Karen, aged five, who lives with her maternal grandmother in Washington, D. C. The trial court found that the parties separated about May 24, 1953, at Los Angeles and that the real property located at 2420 W. 30th Street in Los Angeles, held under a joint tenancy deed, was community property and awarded the same to Mrs. Barber. In supplemental findings the trial court found that the District Court of Pottawatomie County, Oklahoma, 'was without jurisdiction to determine the divorce matter between the parties * * * since at a prior time this court (Los Angeles) had acquired jurisdiction over the subject matter and the parties.'
Chronologically, the following successive steps were taken: On August 4, 1953, Martha M. Barber filed this action for separate maintenance in the Superior Court of Los Angeles Courty. The husband, appellant herein, then living in Oklahoma, on August 24, 1953, filed a demurrer and answer to the wife's action in California, appearing in propria persona. Three days later, on August 27, 1953, appellant husband filed an action for divorce in the Oklahoma court, proceeding by way of notice by publication. In the Oklahoma action and wife made a general appearance by filing an answer. On October 9, 1953, the Oklahoma court granted the husband a divorce on grounds of cruelty, the decree reciting that 'the defendant (wife) appeared not in person or by attorney, but made default.'
The Oklahoma divorce decree granted custody of both children to the husband and divided 'the real property of said marriage' equally between the parties, granting the west half of the lot to the husband and the east half to the wife.
On April 17, 1957, Mrs. Barber's action for separate maintenance came on for trial in Los Angeles, she being present in person and the husband being duly represented by counsel. This action resulted in the wife's favor, the trial court finding that the Oklahoma court was without jurisdiction since the California court had previously acquired jurisdiction.
The appellant husband now contends that the Oklahoma decree of divorce was a valid decree of a sister state, entitled to full faith and credit in the courts of California and as respondent participated in the action and had opportunity to litigate the jurisdictional issue, the decree is res judicata as to the jurisdiction of the Oklahoma court. Appellant also claims that since the Oklahoma decree terminated the marriage relation on October 9, 1953, without an effective disposition of the property of the parties, the real property located in California, if it was community property prior to that time, became vested in the parties as tenants in common and could not be awarded to respondent in this action. Finally, appellant argues that the evidence fails to support the trial court's finding that the real property was ever community property; that, the marriage relation having terminated and the issue of support having been decided by the Oklahoma court adversely to respondent, the respondent is not entitled to any support from appellant and that the demurrer to the wife's complaint should have been sustained.
Basically, appellant is seeking to have this court declare that a husband who has made a general appearance by filing a demurrer and answer in his wife's separate maintenance action in California may then defeat the acquired jurisdiction of the California court by filing action in another state and there securing a decree of divorce.
The appellant has cited no case which may stand as sanction for such position and the contention is wholly untenable. Cases in which a prior action was instituted and completed in a sister state and the effect of such procedure upon a later action in California are obviously inapplicable. In the instant situation the prior action was commenced in California. Three days after filing a demurrer and answer in the California court the husband filed his divorce action in Oklahoma and there secured a decree before the California action was brought to completion. Both parties appearing by attorneys participated in both actions. Nor does the case of Heuer v. Heuer, 33 Cal.2d 268, 201 P.2d 385, cited by appellant support his contention. In that case the parties lived in California and acquired property here. In 1944 the husband filed a divorce action in this state which was later dismissed as a part of an attempted reconciliation. In July, 1945, the husband commenced a divorce action in Nevada. The wife was personally served in Nevada, engaged an attorney and filed a cross-complaint for separate maintenance. The husband there secured a divorce decree embodying certain support provisions for the wife but making no disposition of the community property interest. In November, 1945, the husband returned to California and executed certain conveyances of community property to his brothers whereupon the wife instituted in California an action to set aside such transfers. The trial court set aside the husband's conveyances 'on the theory that because of jurisdictional defects in the Nevada divorce action, they were still husband and wife,' jurisdictional defects being based on 'alleged sham and fraudulent intent in the domiciliary claims of the husband.' Citing Sherrer v. Sherrer, 334 U. S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, the trial court's decision in the Heuer case was reversed on the theory that the Nevada decree was entitled to full faith and credit and that since the wife 'had full opportunity to litigate the issue' of jurisdiction it was immaterial whether such issue was actually litigated even though a relitigation of such question might show a fraudulent domiciliary claim in the Nevada court.
The preceding statement in reference to the Heuer case indicated the great factual divergence between that case and the present controversy. Obviously each case must stand and be determined on its own merits. Principles applicable to one set of facts are not necessarily controlling in respect to a materially different situation. And so it is here; there is nothing in the Heuer case which requires a reversal in the instant action. To rule otherwise would amount to placing a premium on a party's ability to rush from one state to another in an attempt to curtail or extinguish California jurisdiction of an action first instituted in this state. Neither comity nor any other legal principle sanctions such a result. This is fully recognized in Simmons v. Superior Court, 96 Cal.App.2d 119, at page 130, 214 P.2d 844, at page 852, 19 A.L.R.2d 288, in which the court said, 'Races between parties likely to result in unseemly controversy between courts of different states should be frowned upon and avoided if possible.' Since California first assumed and exercised jurisdiction there is no valid reason why such jurisdiction should not continue to the end, nor why it should in any manner be hampered by appellant's subsequent action in Oklahoma.
In reference to the community property and regardless of how title thereto may have been taken, the record discloses substantial evidence that the property in question was purchased with community funds. It was located in California, not in Oklahoma, and the Oklahoma decree in no manner affected its nature nor foreclosed the California tribunal from making disposition thereof. The California court had full authority to make proper awards for support and child care. The appellant's demurrer to the wife's California complaint was properly overruled. No reversible error has been made manifest.
The judgment is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 331 P.2d 628.