Opinion
Page __
__ Cal.App.2d __ 236 P.2d 831 CUGAT v. CUGAT et al. Civ. 18176. California Court of Appeals, Second District, First Division Nov. 2, 1951.Hearing Granted Dec. 20, 1951.
Dismissed March 7, 1952.
Rehearing Denied Nov. 21, 1951.
Pacht, Tannenbaum & Ross, Isaac Pacht, Samuel I. Barchas, and Bernard Reich, all of Los Angeles, for appellant.
Gold & Needleman, J. George Gold, and James J. Needleman, all of Beverly Hills, for respondent.
DRAPEAU, Justice.
January 12, 1950, plaintiff, Lorraine Cugat, filed her complaint for divorce. The complaint alleged the existing marriage of plaintiff and defendant husband, and their separate after two years of married life; that plaintiff has been a resident of the state of California and the county of Los Angeles for the required length of time; that there are no children; that defendant husband had inflicted upon plaintiff extreme cruelty; that the parties have extensive community property; that defendant husband is pursuing a course of conduct whereby he is concealing his assets from plaintiff for the purpose of depriving and defrauding her of her share thereof; that plaintiff has no means to support herself or to pay legal counsel, and that defendant husband is well able to do so; that in furtherance of a design to defraud plaintiff of her interest in the community property defendant husband left the jurisdiction of California, and told her that unless she settles her property rights on his terms he will remain outside the jurisdiction of California for many years. The bank and others were joined as parties defendant and alleged to be in possession of assets of plaintiff and defendant husband.
On the same day the complaint was filed, the court issued an ex parte order appointing a receiver, directing him to take possession of the real property, lease it, and collect rents; also, all defendants [236 P.2d 833] were ordered to appear January 20, 1950, to show cause why the appointment of the receiver should not be confirmed and continued pendente lite.
January 20, 1950, the appointment of the receiver was confirmed.
January 26, 1950, the court issued an ex parte order on affidavit of plaintiff's attorney extending the powers of the receiver to take possession of all personal property of defendant Xavier Cugat, including the contents of all safety deposit boxes in any bank, 'especially the California Bank.'
February 1, 1950, the receiver was ordered to pay plaintiff $2,000 per month alimony pendente lite and to pay plaintiff's attorney $5,000 attorney fees and $2,500 court costs. The receiver was authorized to sell or dispose of any holdings in his possession to comply with the order.
February 6, 1950, on application of the receiver, the court ordered the approval of a depositary for funds coming into his possession.
March 1, 1950, the court modified the order of February 1st allowing $500 of the $2,500 for costs and the balance of $2,000 for additional attorney's fees.
June 7, 1950, the court ordered the receiver to pay plaintiff's attorney an additional $5,000.
Until August 16, 1950, plaintiff had not served defendant husband with summons and complaint, and until that date no application had been made for an order directing service by publication. So that at the times when all of the foregoing orders were made there had been no service of process upon defendant husband, nor had any proceedings been initiated for constructive service.
August 10, 1950, defendant Xavier Cugat's attorneys appeared specially to attack the court's jurisdiction and filed a notice of motion to vacate all of the above orders. The motion was argued on August 17th, on which date affidavits in opposition to the motion were filed, among them the affidavit of the receiver stating that he took constructive possession of the real property on January 13th and that he took possession of the contents of the safety deposit box on January 27, 1950. The motion to vacate was denied, and from the order denying the motion defendant appeals.
In support of his motion, and of this appeal, defendant cites an impressive list of authorities which he contends establishes that the Superior Court was without jurisdiction to make the orders. However, the case of Nichols v. Superior Court, 1 Cal.2d 589, 36 P.2d 380, 95 A.L.R. 894, would seem to be in point and determinative of all questions here involved. In that case our Supreme Court held that in circumstances similar to those appearing here the Superior Court had jurisdiction to appoint a receiver to take charge of community property, and to direct the receiver to pay from said property during the pendency of the action alimony, attorney's fees, and costs. While appellant has very ably sought to distinguish the Nichols case, the broad powers and the extensive jurisdiction given the trial court thereunder are still applicable. The divorce complaint herein contained the necessary allegations to bring the matter within the purview of the Nichols case, and the trial court may assume the allegations are true and made in good faith. Baldwin v. Baldwin, 82 Cal.App.2d 851, 187 P.2d 429.
Appellant contends the proper interpretation of the Nichols case is to be found in Baldwin v. Baldwin, 28 Cal.2d 406, 415, 170 P.2d 670, with reference to actual possession of the property by the receiver as being a requisite for jurisdiction. However, in the instant case, the fact of possession is amply supported by the affidavit of the receiver.
The order is affirmed.
WHITE, P. J., concurs.
HANSON, Justice pro tem. (dissenting).
The question presented by this appeal is whether the superior court has jurisdiction in an action for divorce to order a [236 P.2d 834] temporary receiver, who had been appointed ex parte, to pay out of the funds and properties of the defendant which he had seized, support money, attorney's fees, and costs, in the absence of any legal process served upon the defendant personally or by substituted service.
The majority opinion holds that the court is possessed of such jurisdiction in view of the decision of the Supreme Court in Nichols v. Superior Court, 1 Cal.2d 589, 36 P.2d 380, 95 A.L.R. 894. I cannot agree that the case is a controlling precedent on the facts of this case, and even if it is I must dissent to its application here on the ground that the defendant is denied his rights of due process under the federal constitution Amend. 14. The contention here made that the orders before us violate the due process clause of the federal constitution was not presented in the Nichols case as appears by the briefs therein and, what is more, was not discussed by the court in its opinion.
That the orders of February 1st, March 1st, and June 7, 1950, made in the instant case were invalid to the extent they ordered the receiver to pay alimony, attorney's fees, and court costs out of the property seized by him it seems to me is not open to doubt under the decisions of the Supreme Court of the United States construing the federal due process clause. Cf. Propper v. Clark, 337 U.S. 472, 488, 69 S.Ct. 1333, 93 L.Ed. 1480, and the cases therein cited to the point; Pennington v. Fourth Nat. Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713; Security Sav. Bank v. California, 263 U.S. 282, 44 S.Ct. 108, 68 L.Ed. 301; 63 Harv.L.Rev. 657, 660.
In the case before us the defendant appeared specially on August 10, 1950, to vacate not only the orders here mentioned, but certain other orders, all of which were made without service upon defendant of any legal notice, actual or constructive, and without service upon him of any summons upon the complaint either actually or by way of substituted service. The majority by affirming the orders below renders them res judicata and denies to the defendant not only his right to his day in court but a decision on the merits of his cause to which he is likewise entitled.