Opinion
Rehearing Denied March 10, 1967.
For Opinion on Hearing, see 63 Cal.Rptr. 291, 432 P.2d 979.
John A. Bohn, Jr., San Francisco, for appellant.
John E. Anderton, San Francisco, for respondent.
SALSMAN, Associate Justice.
This is an appeal from a default judgment in favor of respondent Daniel G. Whealton annulling his marriage to appellant Hazel L. Whealton on grounds of fraud. Appellant has also appealed from the trial court's order denying her motion to set aside the default judgment, but since we reverse the judgment itself and direct dismissal of the action no ruling on that order is necessary.
The parties were married in Maryland on June 15, 1964, and lived together there until February 1, 1965. Thereafter respondent, who is in the naval service, was transferred to Rhode Island, and later to Washington, D. C. Appellant spent a few days with respondent in each place. On July 14, 1965, respondent came to California and was assigned to the U.S.S. REPOSE.
On September 3rd he filed a complaint for annulment of marriage in the superior court at San Francisco. Summons was issued and an order for publication of summons was signed and filed on the same day. The summons was published first on September 7th and weekly thereafter until its final publication on September 28th.
On October 11th, at respondent's request, the court entered a default against appellant, heard testimony in support of the allegations made in the complaint, and awarded respondent a decree annulling the marriage.
Appellant first argues that the superior court did not have subject-matter jurisdiction and hence could not annul her marriage. She contends there is nothing in the record to show that respondent is a resident of this state, or domiciled here, and that it affirmatively appears she is a nonresident.
Respondent replies first that there is no evidence in the record to show that he is not a resident of California, and that we must presume that he is, since such a presumption would support the judgment, and all intendments are in favor of its regularity. Secondly, respondent cites Millar v. Millar, 175 Cal. 797, 167 P. 394, L.R.A. 1918B, 415 as holding directly that the residence requirements It is true there is no evidence in the record to show directly whether respondent is or is not a resident of California. But the only reasonable inference to be drawn from the evidence is that respondent is not a resident of this state, and was not a resident at the time he commenced his action.
It was established that respondent is in the military service; that during most of the 15 months of his marriage he was a resident of Maryland, Rhode Island and Washington, D. C.; that he arrived in California on July 14th, and was stationed aboard a vessel of the United States Navy at the Hunter's Point Shipyard. He filed this action on September 3rd. His only address while in California was: 'U.S.S. REPOSE, San Francisco Naval Shipyard.' An affidavit filed by respondent's attorney on November 10th discloses that some time prior to that date, respondent and his ship had departed from this state and were at sea. If, therefore, residence or domicile of at least one party in this state is jurisdictional in actions for annulment of marriage, no valid judgment may be entered here on our facts.
In actions for divorce, jurisdiction depends upon the bona fide domicile within this state of at least one of the parties to the marriage. Where neither party is domiciled within this state, no divorce may validly be granted, and all proceedings, as well as the judgment, are void. (Crouch v. Crouch, 28 Cal.2d 243, 249, 169 P.2d 897, and cases cited; see also Restatement, Conflict of Laws, § 111.) The terms 'residence' and 'domicile' are essentially synonymous when used to describe that indispensable presence within the state necessary to confer jurisdiction in actions for divorce. Thus it has been held that the residence requirements mentioned in Civil Code section 128 are the equivalent of domicile. (Ungemach v. Ungemach, 61 Cal.App.2d 29, 36, 142 P.2d 99, and cases cited.)
Generally, the same jurisdiction is required to annul a marriage as to dissolve a marriage by divorce; that is to say, one or both of the parties to the marriage must be domiciled within the state in order to vest the court with jurisdiction to act. (See Restatement, Conflict of Laws, § 115.) Considerations of policy as well as law favor this rule. Thus, if it were possible for any person within the boundaries of this state, however temporary his presence here might be, to obtain from California courts a divorce or an annulment of marriage against a nonresident defendant, when no California connection with or interest in the marriage is shown, our courts might well become a refuge for transient plaintiffs seeking to rid themselves of foreign marriages and unwanted marital responsibilities. The essential fairness of such proceedings must also be considered. Although publication of summons and the mailing of summons and complaint to the last known address of the nonresident defendant satisfy constitutional requirements of due process, the practical value of the notice given is open to doubt. It may often happen that a nonresident defendant, especially an impecunious one, will be unable to retain counsel, acquaint him with the facts of the case, and alert him to possible defenses in time to avert entry of default. Although notice requirements for the service of process upon a nonresident defendant will be the same, regardless of the period of a plaintiff's residence within this state, a fixed place of abode here is more likely to give warning to the other party of the possibility of resort to our courts than the purely transitory, fleeting type of contact with this state such as the facts show respondent had here. But respondent cites and relies upon Millar v. Millar, supra, 175 Cal. 797, at 800, 167 P. 394. That case, according to respondent, stands for the position that the residence requirements of Civil Code section 128 relating to actions for divorce have no application to annulment cases. Therefore, respondent reasons, no residence or domicile in this state is required of a plaintiff in an annulment action.
We do not understand Millar to have the broad sweep for which respondent contends. Although the opinion in Millar does not state the facts of that case in great detail, it does appear that the parties were married in California, and the court found that thereafter '* * * in accord with the plan theretofore made, they journeyed together to several places in the United States and back again to California.' (P. 801, 167 P. p. 395.) In addition to the fact that it was the validity of a California marriage that was in issue in Millar, it is also inferable from the opinion that the parties were in fact domiciled in this state at the time the action was commenced. It is true the court concluded that the residence requirements of Civil Code section 128 relating to divorce did not apply to actions for annulment of marriage, but it is equally true that the court did not say that in such actions no residence or domicile in this state was required of either party. A later case supports this observation. Thus in Mayer v. Mayer, 207 Cal. 685, 695-696, 279 P. 783, the defendant contended that the court was without jurisdiction to annul a marriage because neither party was a resident of this state at the time the action was commenced, although the marriage had been solemnized in California. The court said (p. 696, 279 P. p. 788): 'Since the validity of marriages is generally determined by the law of the state where the marriage took place, there are cogent reasons why annulment should be sought in the tribunals of that state. In Miller v. Millar [supra], this court did not decide the precise point argued by defendant, but did hold that section 128, Civil Code, requiring a year's residence in the state and a three months' residence in the county, in divorce actions, was not applicable to annulment proceedings. See, also, McCormack v. McCormack, 175 Cal. 292, 165 P. 930.' It seems clear from this language that the court in Mayer did not understand Millar to say that, in annulment actions, neither party is required to be a resident or domiciled in this state at the time the action is commenced. At most, Mayer simply left the issue unresolved.
The case before us concerns a marriage solemnized outside this state. There is no evidence in our record that either party to the action was a resident of this state at the time the action was commenced, or was domiciled here at any time. Under these circumstances we conclude that the decree of annulment entered in the superior court was void for lack of jurisdiction.
Appellant also argues that entry of default against her was premature, because as a nonresident defendant, she had 30 days from the date of the last publication of summons within which to answer the complaint, as no personal service was made upon her outside the state. This argument is clearly correct, and alone would compel reversal of the judgment.
Every summons issued in a civil action must contain, among other things, a direction that the defendant appear and answer the complaint '* * * within 10 days, if the summons is served within the county in which the action is brought, or within 30 days, if served elsewhere * * *' except as to certain actions brought against the state. (Code Civ.Proc. § 407, subd. 3.) Generally, service of summons must be made upon the defendant personally (Code Civ.Proc. § 411, subd. 9), but where, as here, the defendant resides outside the state, service may be made by publication. (Code Civ.Proc. § 412.) Where publication is ordered, and if the out-of-state residence is known, the court must direct that copies of summons and complaint be mailed to the defendant. Personal service of a copy of the summons and complaint outside of the Application of the foregoing rules to our facts demonstrate that the default entered against appellant was premature. No personal service of summons was ever made upon her. Service of process was by publication and mailing, which it is now settled is entirely proper in actions for annulment of marriage, where the defendant is a nonresident of this state. (Bing Gee v. Chan Lai Yung Gee, 89 Cal.App.2d 877, 885, 202 P.2d 360; Buzzi v. Buzzi, 91 Cal.App.2d 823, 825, 205 P.2d 1125.) Appellant received a copy of the summons and complaint by mail, but this, of course, is not the equivalent of personal service, since mailing is required by the terms of Code of Civil Procedure section 413, and is but a part of substituted service. Ordinarily, upon expiration of the period of publication, which occurred here on September 28th, the court would have acquired jurisdiction over appellant, but appellant in turn would have had 30 days thereafter--until October 28th--in which to appear in the action. She could not be put in default until the expiration of her time to appear. (Code Civ.Proc. § 407, subd. 3; Foster v. Vehmeyer, 133 Cal. 459, 65 P. 974; see also Grewell v. Henderson, 5 Cal. 465; 1 Witkin, Calif. Procedure, Actions, § 316, p. 835.) Entry of her default on October 11th and the grant of judgment against her on the same day were acts in excess of the court's jurisdiction and may not be sustained.
On September 11th, after receipt of a copy of summons and complaint, appellant wrote a letter to the clerk of the court in which she asserted that the charges recited in the complaint were untrue. The letter was never filed in the action, as a pleading or otherwise, and no filing fee was tendered or demanded. The letter was before the court, however, at the hearing when judgment was entered. Both parties urge us to hold that the letter was in fact an answer to the complaint, and that appellant appeared in the action. If this is done, appellant argues, the judgment must be set aside, because there was no notice of time of trial, or opportunity to appear and defend. Respondent argues that the letter constituted an appearance and implies that notice of hearing was waived. It seems plain to us, however, that appellant's letter to the clerk was never intended by her to be a pleading or an appearance. The document was never treated as a pleading by anyone, and probably had no place in the official record since it was never filed. In the trial court the letter was treated as nothing more than an informal communication to the clerk by one of the litigants, and we see no reason to give it any greater effect here. For two reasons, therefore, the judgment may not stand, first because the superior court lacked subject-matter jurisdiction, and second, because entry of appellant's default was premature.
The judgment is reversed. The superior court is directed to dismiss the action.
DRAPER, P. J., and HAROLD C. BROWN, J., concur.
Hearing granted; SULLIVAN, J., not participating.