Opinion
Page __
__ Cal.App.2d __289 P.2d 22Gertrude B. NEWELL, Plaintiff and Appellant,v.Robert M. NEWELL, Defendant and Respondent.Civ. 20574.California Court of Appeals, Second District, Second DivisionNov. 2, 1955Rehearing Denied Nov. 22, 1955.
Rehearing Granted Dec. 28, 1955.
Ernest W. Pitney and Glenn A. Lane, Los Angeles, for appellant.
Theodore A. Chester, Los Angeles, for respondent.
McCOMB, Justice.
On June 11, 1954, plaintiff applied to the Los Angeles Superior Court for the issuance of a subpoena to take the depositions of certain witnesses residing in Los Angeles County for use in a divorce action then pending in Idaho. Pursuant to the provisions of the Code of Civil Procedure, section 2037, a subpoena was issued by the trial court. Thereafter defendant moved to quash and set aside such subpoena and obtained an order to show cause why plaintiff should not be restrained from taking the depositions or from taking any further proceedings [289 P.2d 23] in her Idaho divorce action, other than to dismiss it with prejudice. The motion and order to show cause were based on the fact that the evidence was immaterial since defendant, on September 28, 1953, had obtained an interlocutory decree of divorce from plaintiff in Los Angeles County Superior Court, which decree was valid and binding in all particulars, and was a complete and final determination of all the issues.
Plaintiff filed affidavits in opposition to the motion to quash and the order to show cause, and after a full hearing the trial court granted the motion to quash and enjoined plaintiff from proceeding with her Idaho action. The minute order of June 18, 1954, entered on June 22, 1954, reads thus: 'The motion of defendant to quash subpoenae and subpoenae duces tecum is granted and plaintiff is restrained from taking depositions in this county to be used in the Idaho proceedings.'
On June 22, 1954, the court signed a restraining order and injunction, which was filed on June 23, 1954, reading (omitting the title of the court and cause) as follows:
'The order to show cause re restraining order and injunction came on regularly for hearing on Friday, June 18, 1954, in Department 8 of the above entitled court before the Honorable Elmer D. Doyle, Judge presiding, Messrs. Ernest W. Pitney and William H. Brawner appearing as counsel for plaintiff and Theodore A. Chester, Esq. appearing as counsel for defendant.
'It appearing, among other things, that on September 28, 1953 the above entitled court made and entered an interlocutory decree of divorce between the parties hereto in that certain action entitled 'Robert M. Newell, plaintiff v. Gertrude B. Newell, defendant,' Los Angeles County Superior Court case No. Pasadena D-11260; and it further appearing that the above named plaintiff made a general appearance in said California action and further that she was a resident of the State of California on August 17, 1953, the date on which said California action was filed, and on August 24, 1953, the date on which she was personally served with process in said California action, and that said California judgment is a complete and final determination of all of the issues before the Court in that certain action filed by the above named plaintiff in the District Court of the Fourth Judicial District of the State of Idaho in and for the County of Gooding, entitled 'Gertrude B. Newell, plaintiff v. Robert M. Newell, defendant,' being case No. 6462, and that said California judgment is binding on said Gertrude B. Newell in all particulars;
'It Is Ordered, Adjudged And Decreed:
'That Gertrude B. Newell, the above named plaintiff, and Ernest W. Pitney and William H. Brawner, her attorneys, and any other attorney or attorneys now employed or hereafter employed by her, are hereby restrained and enjoined from:
'(1) Taking the depositions of Mrs. Luis Odriozola, Mrs. Warren Wilson, Mr. and Mrs. Jay B. Latham, Mr. and Mrs. Grace P. Douglas, Mrs. Sarah Fletcher, Esther M. Sheets, the California Bank, a banking corporation, D. T. Hubbard, Personal Loan Supervisor of said bank, and Forrest Denning, Vice President of said bank, for use by said plaintiff in that certain action entitled 'Gertrude B. Newell, plaintiff v. Robert M. Newell, defendant,' heretofore filed by her in the District Court of the Fourth Judicial District of the State of Idaho in and for the County of Gooding, being case No. 6462.
'(2) Taking the depositions of any other witnesses for use in said Idaho action.
'(3) Taking any further action or proceedings whatsoever in said Idaho action.
'(4) Taking any steps whatsoever for divorce in any court in any state, or country, leading to the entry of a divorce between the parties hereto or a determination of the rights of custody of the minor children of the parties hereto, other than in the above entitled court, except to enter a dismissal with prejudice of said Idaho action.
'Dated: June 22, 1954.'
On July 8, 1954, plaintiff appealed from the order of June 22, 1954, which was filed [289 P.2d 24] June 23, 1954. So far as material here, the notice of appeal reads:
'You Will Please Take Notice that the plaintiff in the above entitled action is appealing to the Supreme Court of the State of California from that certain order made and entered in the above entitled action on the 23rd day of June, 1954, and from the whole thereof, and plaintiff hereby requests that a Clerk's Transcript and a Reporter's Transcript be prepared of the testimony offered or taken, evidence offered or received, and all rulings, acts or statements of the Court, all objections or exceptions of counsel, and all matters to which the same relate, and hereby designates and specifies such of the pleadings, papers, records, files and exhibits in said cause, as she desires to have incorporated in the record on appeal: * * *'
Questions: First: Did the trial court err in making its order on June 18, 1954, (entered June 22, 1954), granting defendant's motion to quash the subpoena and subpoena duces tecum, theretofore issued and restraining plaintiff from taking depositions in this state to be used in the Idaho divorce action?
This question will not be considered by us for the reason that plaintiff has not appealed from this order of the trial court. It will be noted from reading the notice of appeal that the appeal is only 'from that certain order made and entered in the above entitled action on the 23rd day of June, 1954, and from the whole thereof.' The only thing done in the case on June 23, 1954 was to file the restraining order and injunction. No notice of appeal was filed from the order of June 18, 1954.
The notice of appeal must point out the particular judgment or order, or the specific part thereof, from which the appeal is taken (Rules on Appeal, 1(a), 36 Cal.2d 1; In re Estate of Roberson, 114 Cal.App.2d 267, 269[4], 250 P.2d 179.) Nor is there any merit in the contention that the words 'from the whole thereof' appearing in the notice of appeal, are sufficient to bring up for review the order from which an appeal was not taken. The words 'from the whole thereof' in the notice of appeal relate to the order previously mentioned, to wit, the order dated the 23rd day of June, 1954, and from the whole thereof, and not to any other order or judgment. (In re Estate of Bearns, 77 Cal.App.2d 221, 223[2], 175 P.2d 283.)
In the absence of a proper notice of appeal being filed, this court is without jurisdiction to consider any alleged error in the order entered June 22, 1954. (People v. Brown, 148 Cal. 743, 744 et seq., 84 P. 204; cf. Robins v. Weis, 97 Cal.App.2d 144, 145, 217 P.2d 156.)
Second: Did the trial court err in restraining plaintiff from proceeding with her divorce action in the State of idaho?
No. A state can exercise through its courts jurisdiction to forbid a party, subject to its jurisdiction, from doing an act in another state. (Restatement of Conflict of Laws, (1934) section 96, p. 146; Smith v. Davis, 90 Cal. 25, 32, 27 P. 26; Title Insurance & Trust Co. v. California Development Co., 171 Cal. 173, 199 et seq., 152 P. 542.)
The record discloses that plaintiff and defendant were married in Pasadena, California in 1942, and resided in Los Angeles County all of their married life except for the times that defendant was stationed elsewhere during World War II or completing his education. On June 30, 1953, plaintiff, accompanied by the three children of the parties, her father and the family housekeeper left to visit relatives of plaintiff in Montana. She stated it was her intention to remain in Montana for a few weeks and then with the children return to California in the middle of August, 1953. On July 16, 1953, in a telephone conversation with defendant she advised him that she had been unable to find satisfactory accommodations in Montana, but had found a place at McCall, Idaho. On August 13, 1953, she told defendant that she intended to get a divorce while in Idaho and he would not be permitted to visit with the children under any circumstances unless and until he settled their domestic difficulties on terms to be dictated by her.
[289 P.2d 25] Upon being so advised, defendant filed shortly thereafter an action for divorce against plaintiff in the Los Angeles Superior Court, being known as Pasadena D-11260.
On August 15, 1953, plaintiff filed an action for divorce in the Fourth Judicial District in and for the County of Gooding, Idaho, against defendant herein. On September 25, 1953 the superior court of Los Angeles County enjoined plaintiff from proceeding with her Idaho divorce action. On September 28, 1953, the Los Angeles Superior Court granted defendant herein an interlocutory decree of divorce in the Pasadena action D-11260, in which it was found, among other things, that defendant (plaintiff herein) 'has been a resident of the State of California, County of Los Angeles, for at least six years continuously prior to the filing of this action and was a resident of the State of California, County of Los Angeles, on August 17, 1953, the date this action was filed, and on August 24, 1953, the date defendant was personally served with a copy of the summons and complaint in the State of Idaho.'
It is therefore evident that the trial court had personal jurisdiction over plaintiff by virtue of her appearance in the divorce action and her residence in the State of California. Having personal jurisdiction over her, the California court made a complete disposition of the community property of the parties, awarded custody of the minor children to defendant and restrained plaintiff herein from proceeding with her divorce action in Idaho. Having determined the California interlocutory decree to be valid and binding upon plaintiff, the court, acting within its discretion, entered the injunction and restraining order now under consideration.
In view of the fact that plaintiff was continuing an action which would render the California divorce judgment ineffectual; would create a multiplicity of actions relating to the same subject matter; would cause defendant unnecessary expense and inconvenience, and in addition was threatening to perpetrate fraud upon the courts of the State of Idaho in representing to them that she was a bona fide resident of that state, the trial court acted properly in issuing the injunction.
Stout v. Pate, 120 Cal.App.2d 699, 261 P.2d 788, 790, is not here in point. In such case the court held in an action for the support of a child that '* * * When a child is within California the courts are independent of all judgments of sister states to investigate and determine what are the best interests of the child. (Foster v. Foster, 8 Cal.2d 719, 726 (68 P.2d 719).) And such order of a California court cannot be challenged upon the ground that a prior decree of another jurisdiction providing for the custody and support of the child was res judicata. There is no permanent finality to a custodial award.'
The situation in the instant case is not analogous. In the case at bar plaintiff was not seeking a judgment for support of the children in Idaho. She was seeking a divorce, and as an ancillary matter sought to obtain custody of the children contrary to the terms of the California decree which she had flagrantly violated.
The order from which the appeal is taken is affirmed.
MOORE, P. J., and FOX, J., concur.