COONEY v. COONEY ET AL

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District Court of Appeal, Fourth District, California.

COONEY v. COONEY ET AL.

Civ. 3243.

Decided: February 16, 1944

W. H. Weddell and Martin J. Coughlin, both of San Bernardino, for appellant. F. J. Root, in pro. per., for respondent.

This is an appeal from an order transferring this “action” to the Superior Court of Placer County.

On September 20, 1939, the plaintiff filed an action for divorce in the Superior Court of Placer County. The defendant filed an answer and cross–complaint. A trial was had, with evidence presented by both parties, and on November 20, 1940, an interlocutory decree of divorce was entered in favor of the plaintiff. This decree awarded the custody and control of the four children of the parties to the probation officer of Placer County, with a reservation with respect to one of these children which reads: “that the care, custody and control of June Marilyn Cooney be delivered by the said probation officer to F. J. Root.”

On March 2, 1942, the defendant, who in the meantime had moved to San Bernardino, filed a petition in the same court asking that the interlocutory decree of divorce be modified by awarding the custody of the children to him. On March 4, 1942, that court issued an order directed to the plaintiff and the probation officer of Placer County ordering them to show cause on March 23, 1942, why such an order should not be made. The next thing that happened, insofar as disclosed by the record before us, was the entry of a minute order in the superior court of Placer County on March 25, 1942, which reads: “In the above cause the action is ordered transferred to San Bernardino County for trial.”

On April 3, 1942, the papers were filed in the office of the clerk of the superior court of San Bernadino County. On the same day a final decree was there entered awarding the plaintiff a divorce and continuing “any provision” of the interlocutory decree insofar as the custody of the children was concerned. On April 29, 1942, the plaintiff filed objections to the defendant's petition for a modification of the interlocutory decree and also filed a “cross–petition” asking that the interlocutory decree be modified by giving her the custody of the children, and that the defendant be ordered to pay $60 a month for their support. On July 20, 1942, the defendant filed an answer to this “cross–petition”.

On August 14, 1942, an order was entered in the superior court of San Bernardino County awarding the custody of three of these children to the defendant and providing that the custody of June Marilyn Cooney “still remain with the probation officer of the county of Placer,” subject to the further order of the court. On August 28, 1942, the defendant filed a notice of intention to move for a “new trial” with respect to that portion of this order which related to the custody of June Marilyn Cooney. On October 14, 1942, the court entered an order vacating this part of its order of August 14, 1942, and ordering a further hearing of that matter with the provision that such hearing should be limited “to a determination of the rights, if any, of F. J. Root to the custody of said June Marilyn Cooney.”

On October 20, 1942, the court issued an order to show cause directed to F. J. Root, who is a resident of Placerville, California, directing him to show cause on November 16, 1942, why an order should not be made modifying the interlocutory and final decrees of divorce by transferring the custody of June Marilyn Cooney to the defendant. Apparently, this order to show cause was not served on the plaintiff and she did not appear. On November 16, 1942, F. J. Root appeared with an attorney and objected to the hearing on the order to show cause on the ground that that court was without jurisdiction to proceed, and that the jurisdiction of the entire matter was in the superior court of Placer County. It appears that the question as to its jurisdiction had not theretofore been called to the attention of the superior court of San Bernardino County. After a long argument between counsel for Root and counsel for the defendant, in which the court participated, the objection was sustained and an order was made directing that the “action” be transferred to the superior court of Placer County. From this order the defendant has appealed.

It is first contended that F. J. Root, the so–called respondent, “was not properly in the case and had no right to move for a change of venue.” However, as the appellant himself points out in his brief no such a motion was made. While the court's order of transfer, as shown by the minutes of November 16, 1942, recites that it was made “on application of said respondent” there is nothing in the record to show that this was applied for by Mr. Root. The only thing bearing on this which appears in the reporter's transcript of the proceedings on that occasion is that in reply to a question asked by appellant's counsel as to how this matter could now be transferred back to Placer County the attorney for Mr. Root remarked that this could be done by an order of the court. In spite of many irregularities which appear in these proceedings, the order in question was one which the court could make on its own motion.

The appellant next contends that the superior court of Placer County “had jurisdiction to change the place of trial of actions”, and that since this had been done the superior court of San Bernardino County had jurisdiction of the action and could not order the matter retransferred to Placer County because this order was made without notice and without any showing as to the convenience of witnesses, and because “the particular trial had already been partly heard” in that court. The appellant starts with the assumption that through the transfer previously made the superior court of San Bernardino County had jurisdiction of all remaining proceedings in this action, and argues that the manner in which that court acquired jurisdiction is immaterial. However, that court had no jurisdiction unless the superior court of Placer County had the right to transfer the “action” to San Bernardino County at the time that order was made. The record does not disclose the reason for this attempted transfer but there is some suggestion that it could have been done on the ground of convenience of witnesses.

The superior court of Placer County had jurisdiction of the subject matter of this action and of the parties, tried the contested issues, and entered an interlocutory judgment. The matter being within the jurisdiction of that court it had no right to transfer the action to the superior court of another county except as such a transfer is authorized by statute. Section 397 of the Code of Civil Procedure provides when a court may change the place of trial. There is no contention that the superior court of the county of Placer was not the proper place for the trial of this action. Insofar as the convenience of witnesses is concerned it has been held that an application to change the place of trial on that ground must be made within a reasonable time. Willingham v. Pecora, 44 Cal.App.2d 289, 112 P.2d 328. Whatever a reasonable time would be for such an application it seems clear that it would be unreasonable to wait until the trial had been had and a judgment entered. Not only was there no statutory authorization for the transfer then made, but the thing actually done was not a change of the place of trial of the action but was merely the transfer to another court, for hearing, of an application for the modification of a judgment which had been already entered.

The most important question presented by this unusual situation, although it is not specifically raised by the parties, is whether a superior court, which has properly assumed jurisdiction in a divorce case and has tried the same and entered an interlocutory judgment, may transfer an application for a modification of that judgment to an entirely different court for hearing, and whether the court to which the matter is thus transferred may enter a final judgment and may modify the interlocutory judgment entered by the other court.

Section 131 of the Civil Code provides that in an action for divorce the court must file its decision and conclusions of law, and if it determines that the divorce ought to be granted an interlocutory judgment must be entered to that effect. Section 132 provides that when one year has expired after the entry of such interlocutory judgment “the court” may enter a final judgment. It seems clear that this refers to the same court which entered the interlocutory decree. Section 138 provides that the court may, during the pendency of the action, at the final hearing or at any time thereafter during their minority, make an order for the custody of any minor children and “may at any time modify or vacate the same.” This authorizes the court that tried the action to make an order relating to the custody of children, and the clear implication is that the same court may later modify or vacate that order. While there are superior courts in all of the counties of this state, they are not the same court in the sense involved here. An interlocutory decree of divorce is more or less final in nature in certain respects, except where it is modified or vacated as authorized by statutory provisions. Bancroft v. Bancroft, 178 Cal. 367, 173 P. 582. We think it is sufficiently final in nature that when once entered any application to modify the same must be made to and heard by the same court which entered it.

No attempt having been made to transfer the trial of this action, and the case having been tried and an interlocutory decree of divorce entered, the superior court of Placer County not only had the duty of completing the matter, including both the entry of the final decree, if it became proper, and the consideration of any application to modify its interlocutory decree, but it had no authority to transfer the consideration of these matters to another court. It follows that the superior court of San Bernardino County had no authority or jurisdiction to consider these matters or to act upon them. The only proper order the latter court could make was to retransfer the entire matter back to the superior court of Placer County, and all of its other acts and proceedings herein are void.

The order appealed from is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.