LEWIS v. LEWIS

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District Court of Appeal, Second District, Division 2, California.

Gertrude LEWIS, Plaintiff-Appellant, v. Ulysses LEWIS, Defendant-Respondent.*

Civ. 22064.

Decided: May 23, 1957

Brock, Easton, Fleishman & Rykoff, Hollywood, for appellant. Louis Miller, Los Angeles, for respondent.

Appeal by Gertrude Lewis, the wife, from a judgment refusing to recognize the validity of an Illinois decree for separate maintenance which was rendered subsequent to a Nevada divorce obtained by the husband, Ulysses Lewis, but made in an action which was commenced prior to the Nevada proceeding.

After some eight years of marriage the husband sued the wife for divorce in the state of Illinois, the place of their domicile. She answered and filed a cross-complaint for separate maintenance; issue was drawn thereon. Before trial was had the husband went to Nevada where he established a bona fide domicile and obtained a default divorce based upon substituted service of process in Illinois. The answer to the Illinois cross-complaint was filed in May of 1944; the Nevada action was commenced on August 27, 1947 and the decree rendered on September 30, 1947. On September 23, 1947, the Illinois court, upon application of the wife, issued an injunction against the husband's further prosecuting the Nevada divorce action until further order of court; the husband being outside the jurisdiction the said order was never served upon him.

Two months later the Illinois action came on for trial and resulted in a decree of December 30, 1947. The husband did not appear, nor did he in any manner present to that court the claim that his Nevada judgment had adjudicated any of the issues raised in the separate maintenance action. The wife was granted maintenance of $18 a week and it was also ordered that the injunction against prosecuting the Nevada action be made permanent. By ‘Judgment Order’ of December 4, 1950, entered in the Illinois action, it was found that defaults in payment of amounts ordered by the judgment of December 30, 1947, had occurred in an aggregate sum of $3,078.

The Nevada complaint alleged and the court found the fact of pendency of the Illinois action and the making of a temporary support order therein; that the husband had paid all sums required thereby and previously payable, ‘and has persistently attempted to bring said action now pending in said Superior Court of Cook County, Illinois, on for trial and disposition on the merits thereof, but has been frustrated in all such attempts by the refusal of said defendant, Gertrude Lewis, to cooperate in having said action brought on for trial and final disposition. * * * That the interests of said plaintiff, Ulysses Lewis, as a bona fide resident of the State of Nevada, would be prejudiced if this action were to be abated to await the final decision of that certain action between said plaintiff and said defendant, hereinbefore mentioned, now pending in the Superior Court of Cook County, State of Illinois, and known and described as Case No. 42 S 4895 in said Court.’ The judgment repeats the last quoted language, makes no specific mention of alimony or maintenance of the wife, but does conclude as follows: ‘[A]nd that said parties be, and each of them is hereby, released from the obligations of the marriage bond and restored to the status of single persons.’

The plaintiff wife never remarried; defendant and a newly acquired wife became residents of California. Gertrude Lewis brought this action in the superior court of Los Angeles County to establish the Illinois decree as a judgment in this state, to have it enforced as such, and for recovery of $6,462 which was alleged to be the amount due and unpaid under the Illinois decree. The court denied her any relief, holding that the Nevada decree terminated the husband's obligation to support the wife, and that the Illinois decree ‘is invalid and unenforceable as against defendant and cross-complainant Ulysses Lewis and [is] not entitled to recognition in this court or in this State.’

The principal question debated upon this appeal is whether the fact that the Illinois maintenance decree was rendered after the Nevada divorce removes this case from the ambit of Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572; Armstrong v. Armstrong, 350 U.S. 568, 76 S.Ct. 629, 100 L.Ed. 705; Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19. Those cases and many which follow them establish the rule that a foreign default divorce, based on publication or substituted service not followed by any appearance, cannot affect the right of a wife to recover maintenance payments due from the husband under a previously entered maintenance decree rendered after personal service in the jurisdiction of the then domicile of both parties.

The basic theory of those rulings is that there is no res other than the marital status in the divorce forum and that the court has no jurisdiction to affect the personal rights of the absent spouse without personal service of process upon her. The concept of divisibility of marital status and its resultant obligations was announced in Estin v. Estin, supra, 334 U.S. 541, 68 S.Ct. 1213 (decided June 7, 1948). That case determined the effect of a Nevada default divorce upon an existing maintenance decree rendered in New York. At pages 548–549 of 334 U.S., at page 1218 of 68 S.Ct. the court said: ‘The New York judgment is a property interest of respondent, created by New York in a proceeding in which both parties were present. It imposed obligations on petitioner and granted rights to respondent. The property interest which it created was an intangible, jurisdiction over which cannot be exerted through control over a physical thing. Jurisdiction over an intangible can indeed only arise from control or power over the persons whose relationships are the source of the rights and obligations. Cf. Curry v. McCanless, 307 U.S. 357, 366, 59 S.Ct. 900, 905, 83 L.Ed. 1339, 1347, 123 A.L.R. 162.

‘Jurisdiction over a debtor is sufficient to give the State of his domicile some control over the debt which he owes. * * * But we are aware of no power which the State of domicile of the debtor has to determine the personal rights of the creditor in the intangible unless the creditor has been personally served or appears in the proceeding. The existence of any such power has been repeatedly denied. * * *

‘We know of no source of power which would take the present case out of that category. The Nevada decree that is said to wipe out respondent's claim for alimony under the New York judgment is nothing less than an attempt by Nevada to restrain respondent from asserting her claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a person not before the court. That may not be done. Since Nevada had no power to adjudicate respondent's rights in the New York judgment, New York need not give full faith and credit to that phase of Nevada's judgment. * * *

‘The result in this situation is to make the divorce divisible—to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.’

Illinois followed and applied this doctrine in Pope v. Pope, 2 Ill.2d 152, 117 N.E.2d 65. Considering the effect of a Nevada default decree upon an existing maintenance award it said, 117 N.E.2d at page 66: ‘[W]e hold that the Nevada decree, although regarded as a valid determination of the parties' capacity to remarry, does does not have the effect of terminating the plaintiff's right to support.’

The Estin case was followed in Worthley v. Worthley, supra, 44 Cal.2d 465, 468, 283 P.2d 19, which dealt with a factual situation essentially the same as Estin. The opinion points out, 44 Cal.2d at page 468, 283 P.2d at page 21 that ‘the effect of the dissolution of the marriage on defendant's pre-existing obligations under the [Illinois] maintenance decree must be determined by the law of [Illinois].'1 If, as a matter of domestic policy, the state of domicile of both parties wherein alimony or maintenance is awarded does not recognize survival of such an allowance after rendition of a valid divorce, as is the case in Pennsylvania, the foreign divorce puts an end to an existing award. So held in Esenwein v. Com. of Pennsylvania, 325 U.S. 279, 280, 65 S.Ct. 1118, 89 L.Ed. 1608. But where the domestic policy recognizes survival of the right to support after divorce, i.e., support previously awarded, the Estin doctrine operates. Upon principle it should also govern in a situation where the application for support, be it called alimony or maintenance, is made after the rendition of a divorce decree which does not make such an allowance and a fortiori where the application therefor was pending and undetermined at the time of a foreign divorce decree.

A judgment awarding alimony or maintenance merely effectuates and implements a previously existing right of the wife to support from the husband, either a a common law or a statutory duty. The right to support precedes the decree and grows out of the existing or preexisting marriage relation rather than the judgment declaring the right. Each state may determine for itself whether divorce shall end that right when the decree does not speak on the subject. Many states recognize a survival. See cases cited at page 1396 of Annotation of 28 A.L.R.2d 1378.

Illinois has statutory basis for such a view. It was so held in Larson v. Larson, 2 Ill.2d 451, 118 N.E.2d 433, 43 A.L.R.2d 1384. In that instance the husband sued for divorce and the wife defaulted after personal service of process. Divorce was granted and the decree provided that plaintiff would take no alimony from defendant ‘but it said nothing about the defendant receiving alimony from the plaintiff.’ 118 N.E.2d at page 433. Months later the defendant wife petitioned for an order fixing alimony, and after contest same was granted in the sum of $25 a month. ‘The question for decision of $25 a month. not in the absence of some finding or adjudication with respect to the claim or right to claim alimony in the divorce hearing, the appellee lost her right to present the petition filed in this cause.’ 118 N.E.2d at page 434. The court further said: ‘Prior to 1947 there was no provision in the statutes providing for a petition for alimony after entry of a decree, where the question had not been properly preserved. In 1947 and in 1949 the legislature amended section 18 of the Divorce Act2 * * *. The discussion of cases by appellant where courts of review hold that no alimony can be awarded unless it was provided for in the decree or jurisdiction reserved, do not help the situation in the present case because they were all subject to the provisions of section 18 of the Divorce Act prior to the amendment of 1947.’ 18 N.E.2d at page 434. The order was affirmed.

This case dealt with a domestic divorce and expressly recognized that a decree which is silent concerning alimony does not preclude a later application and award. Logically, no greater effect should be attributed to a foreign decree, and that is shown to be the Illinois view by the case of Pope v. Pope, supra, 117 N.E.2d 65 which applies the same reasoning to a foreign judgment of divorce in its relation to a domestic decree for maintenance. It is there said, at page 67: ‘The statute with which we are concerned provides that ‘Married men or women who, without their fault, now live or hereafter may live separate and apart from their wives or husbands may have their remedy in equity * * * against their said wives or husbands * * * for a reasonable support and maintenance while they so live or have so lived separate and apart.’ [Citations.]

‘This legislation recognizes the ancient common-law obligation of the husband to support his wife even when she was living away from him. It reflects dissatisfaction with the inadequate remedies afforded by the common law for the enforcement of this obligation. * * * Our divorce statute has been amended to make possible the securing of alimony in a separate action following divorce proceedings in which personal jurisdiction over the husband could not initially be obtained. * * * Nor is the question resolved simply by characterizing the right to support as an ‘incident of marital status.’ Marriage is an aggregate of rights and duties. A decree of divorce enables the parties to contract a new marriage; that it does not necessarily relieve them of all the obligations of the old is witnessed by the award of alimony upon, or even after divorce. * * * Occasional suggestions in our opinions that divorce terminates the right to support or kindred property rights, [citations] must be considered as referring only to those situations where the wife has participated in the proceedings, or where a contract between the parties was construed to require this result.'

The specific question now presented, whether the fact that the maintenance decree was made in Illinois after the divorce was granted in Nevada makes the Estin doctrine inapplicable, has not been definitely answered in Illinois, California, or by the United States Supreme Court, so far as we are advised. It seems apparent, however, that the absence of a res other than marital status in the Nevada jurisdiction precludes that state from affecting a right existing in the nonresident wife, whether that right be evidenced by a judgment or merely rests upon the marital obligation which may ripen into a judgment. It is immaterial that the claim is ‘inchoate, to be perfected only by time or the action of the court’ (borrowing the language of Pennington v. Fourth Nat. Bank, 243 U.S. 269, 271, 37 S.Ct. 282, 283, 61 L.Ed. 713).

Professor J. H. C. Morris, discussing ‘Divisible Divorce’ in 64 Harvard Law Review 1287, says at page 1293: ‘It is, however, arguable that a right to support, whether crystallized in a court order or not, is itself a property right. And if the matter be looked at broadly (and Mrs. Justice Douglas' language is nothing if it is not broad) the economic problem is the same, whether the wife's rights to support have crystallized in a judgment before the divorce decree or not, and should receive the same solution.’ At page 1302: ‘[I]t would appear to be immaterial whether or not the wife's right to support has or has not crystallized in a support order, since in either case the economic problem is the same and should receive the same solution. Thus, if the wife is domiciled throughout in a state where an ex-husband can be compelled to support his ex-wife, and the wife is not personally served in the state where the divorce is granted and does not appear in the divorce proceedings, she should be able to obtain support in the state of her domicil notwithstanding a prior out-of-state divorce.’ This thought appears in Mr. Justice Douglas' concurrence in Esenwein v. Com. of Pennsylvania, supra, 325 U.S. 279, at page 282, 65 S.Ct. 1118, at page 1120: ‘The State where the deserted wife is domiciled has a deep concern in the welfare of the family deserted by the head of the household. If he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized. In that view Pennsylvania in this case might refuse to alter its former order of support or might enlarge it, even though Nevada in which the other spouse was domiciled and obtained his divorce made a different provision for support or none at all.’

The Supreme Court of the United States has approached the problem, but five Justices deemed it unnecessary to pass upon the same. Reference is made to Armstrong v. Armstrong, supra, 350 U.S. 568, 76 S.Ct. 629, 630. It there appeared that a Florida court had granted a default divorce to the husband against a non-resident wife who was notified by a substituted service only and did not appear. The Florida judgment said ‘that Mrs. Armstrong ‘has not come into this court in good faith or made any claim to the equitable conscience of the court and has made no showing of any need on her part for alimony. It is, therefore, specifically decreed that no award of alimony be made to the defendant * * *.’' Later, the wife sued for divorce and alimony in Ohio where she resided. The husband there appeared and contested, relying upon the Florida decree. The court denied the wife's prayer for divorce but granted alimony. The majority of the United States Supreme Court concluded that ‘the Florida court did not purport to adjudicate the absent wife's right to alimony. The Ohio courts, therefore, in awarding alimony to the wife, did not in fact fail to give full faith and credit to the Florida decree. Accordingly, we do not reach the constitutional question sought to be presented. But even if there is doubt as to the meaning of the Florida decree, we should construe its action as a refusal to pass on the question of alimony and thus avoid the constitutional question as to its power to do so.’ 350 U.S. at page 569, 76 S.Ct. at page 630. Chief Justice Warren and Justices Black, Douglas and Clark, speaking through Mr. Justice Black, held that the language of the Florida judgment was a denial of any alimony. ‘This was plainly a denial of alimony, not on the ground that the court was leaving the matter open but because the judge thought the wife should not have alimony.

‘We agree with the majority that the Onio decree was an alimony judgment and not a division of property. Thus in our view there is a direct conflict between that decree and the decree of the Florida court denying alimony to the wife. We therefore reach the constitutional question whether the Ohio court was justified in denying full faith and credit to the Florida decree.

‘We believe that Ohio was not compelled to give full faith and credit to the Florida decree denying alimony to Mrs. Armstrong. Our view is based on the absence of power in the Florida court to render a personal judgment against Mrs. Armstrong depriving her of all right to alimony although she was a nonresident of Florida, had not been personally served with process in that State, and had not appeared as a party. It has been the constitutional rule in this country at least since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, decided in 1878, that nonresidents cannot be subjected to personal judgments without such service or appearance.’ 350 U.S. at pages 575–576, 76 S.Ct. at page 633. Discussing the Estin case they further said, 350 U.S. at pages 576–577, 76 S.Ct. at page 634: ‘The consideration supporting that holding are applicable here. The fact that Mrs. Estin's claim to support had been reduced to judgment prior to divorce while Mrs. Armstrong's had not is not a meaningful distinction. Mrs. Armstrong's right to support before judgment, like Mrs. Estin's right to support after judgment, is the kind of personal right which cannot be adjudicated without personal service.’ At page 578 of 350 U.S., at page 635 of 76 S.Ct.: ‘There was nothing novel in our holding in Estin v. Estin that a State where one of the parties to a marriage is domiciled can dissolve the marriage without personal service but that it cannot render a personal decree granting or denying alimony. The distinction between a decree which grants a divorce and one which grants a personal money judgment was recognized and the reasons for the distinction were stated by this Court in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The state courts have long recognized the rule that a court lacking personal jurisdiction over a husband cannot render a valid alimony judgment against him. We see no reason why a court lacking personal jurisdiction over a wife should be allowed to render a valid judgment denying alimony to her. Personal jurisdiction is as necessary to protect a wife's interests as it is to protect a husband's. It is an essential to this kind of determination.’

New Jersey has held that there is no survival where the right to support has not been reduced to judgment before the granting of the foreign divorce. Peff v. Peff, 2 N.J. 513, 67 A.2d 161, 166. Kentucky, New York, Ohio and Florida have held the contrary. See Taylor v. Taylor, Ky., 242 S.W.2d 747, 749; Lavigne v. Lavigne, 113 N.Y.S.2d 521; Slapp v. Slapp, 143 Ohio St. 105, 54 N.E.2d 153, 156; Pawley v. Pawley, Fla., 46 So.2d 464, 472-473.

Cases upon which respondent relies3 are not persuasive for they were decided prior to Estin v. Estin, supra, 334 U.S. 541, 68 S.Ct. 1213.

The lower court construed portions of the Nevada decree, above quoted, to constitute an attempt to deny Mrs. Lewis any future support. We think that the proper interpretation, but we conclude that the Nevada court had no jurisdiction so to do. We hold that the Nevada decree effected a valid termination of the marital status, but had no effect upon the wife's right to support from the husband; that under Illinois law that right survived the divorce, and the later separate maintenance decree was a valid adjudication which this state must recognize under the full faith and credit clause of the United States Constitution, art. 4, § 1. Therefore, the judgment must be reversed.

There emerges from the record another equally valid ground for reversal. If it be assumed, contrary to the foregoing holding, that the Nevada decree competently adjudicated that the wife would not be entitled to any future support from the husband, it nevertheless appears that Mr. Lewis did not properly avail himself of that adjudication in the Illinois action which he had started and which was still pending. Armed with a valid judgment which would have constituted a complete defense to the Illinois action (upon the assumption we are now pursuing), defendant ignored that court, did not enter or attempt to enter any supplemental plea of res judicata, and did not appear at the trial. Under such circumstances the Illinois court was not obligated to take cognizance of the Nevada judgment. It was not a matter for judicial notice. A judgment of one state does not automatically assert or prove itself in another, and if he who is entitled to its benefit does not pursue established remedies he cannot thereafter attack in a third jurisdiction a decree of a second which he could have prevented had he properly asserted and proved a first judgment under the defense of res judicata. The full faith and credit clause of the Constitution does not dispense with these procedural prerequisites to the enjoyment of its guaranties.

Respondent's argument that the Illinois court was ousted of jurisdiction by the rendition of the Nevada decree (or perhaps by the filing of the action) cannot prevail. 21 C.J.S. Courts § 548, p. 856: ‘Of course, the court in which the first action is commenced cannot be ousted of, nor will it yield, jurisdiction by reason of the subsequent commencement of another action between the same parties for the same cause of action in another state or country.’ Among the supporting citations are the following cases involving divorce or maintenance: Hepner v. Hepner, 115 Kan. 647, 223 P. 1095; Gratz v. Gratz, 137 Fla. 709, 188 So. 580; Allen v. Allen, 188 Mich. 532, 155 N.W. 488, 489. In Maloney v. Maloney, 67 Cal.App.2d 278, 280, 154 P.2d 426, 427, this court passed upon a question essentially the same when it held that jurisdiction over custody cannot be defeated by removal of the child from the state: ‘Numerous decisions are reported in support of the proposition that where jurisdiction of the person or of the res has once attached it is not defeated by the removal of the person or of the res beyond the jurisdiction of the court. 15 Corpus Juris, p. 824; 21 C.J.S. Courts § 93. Jurisdiction once acquired is not defeated by subsequent events which might have prevented jurisdiction had they occurred before personal service of the action was made. * * * Plaintiff cannot question the jurisdiction which by his own act he conferred. Although the children are beyond the territorial limits of California, they are still under the jurisdiction of the court below (Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 818, 70 A.L.R. 518), which attached at the time the suit was filed.’

In Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S.Ct. 208, 213, 88 L.Ed. 149, it is said concerning the full faith and credit clause and the implementing statute: ‘From the beginning this Court has held that these provisions have made that which has been adjudicated in one state res judicata to the same extent in every other.’

That the plea of res judicata in the Illinois proceeding was an essential step for respondent to take in order to avail himself of the full faith and credit doctrine appears from the discussion and ruling in Spitzer v. Superior Court, 74 Cal.App. 494, 241 P. 270. In that case the husband obtained a divorce in Hawaii on December 5, 1923. In September of that year the wife, who had contested the Hawaii action, filed a divorce complaint in this state making only substituted service on defendant, who resided in Hawaii; he failed to appear and a default interlocutory decree of divorce was granted the wife. Later he moved to vacate that decree upon the theory that the California court was without jurisdiction to render it. That motion having been denied he filed an application in the district court of appeal for a writ of prohibition against the entry of a final decree. It was ‘urged that the circuit court of the territory of Hawaii has by its decree adjudged the dissolution of the marriage of the parties, that respondent was thereby deprived of jurisdiction to proceed further in the action before it, and that the fact of such judgment appearing to this court, respondent should be prohibited from entering a final decree therein.’ 74 Cal.App. at page 498, 241 P. at page 271. The court after adverting to the rule that a plea of res judicata does not go to jurisdiction but merely presents a matter of defense, said in 74 Cal.App.2d at pages 498–500, 241 P. at page 271: ‘The provisions of article 4, section 1, of the constitution of the United States that ‘Full faith and credit shall be given in each state to the * * * judicial proceedings of every other state’ established a rule requiring the enforcement of such judgments without an investigation of the merits of fact, and not a rule affecting the jurisdiction of the court in which the judgment is offered in evidence [citations]; and such judgments though in rem are not executory in another state [citations]. The fact of a judgment urged as a bar, the identity of the parties, jurisdiction to render it, and the legal effect to be given, it, are matters for determination in the first instance by the trial court, are questions on which the party against whom the judgment is urged has the right to be heard, and such determination, though erroneous, and hence not an act in the proper exercise of its jurisdiction, would nevertheless be an act in the exercise of its jurisdiction over the parties and the cause. * * * it is also the rule that the court in which an action is pending, wherein it has jurisdiction of the parties and the cause, is not deprived of jurisdiction to hear and determine the cause by the fact that a decree of another court adjudging the dissolution of the marriage has become final during the pendency of such action [citation]. In the instant case it is not alleged or contended that the interlocutory decree does more than to adjudge the right of the plaintiff in the action to a decree dissolving the marriage; or that the entry of a final decree therein, assuming the Hawaiian decree to be valid and to have the legal effect contended by petitioner, would effect a change in the status of the parties. * * * It is our conclusion that the proceedings of respondent Court are within the exercise of its jurisdiction over the parties and the cause, and that for any error therein petitioner has and will have so far as shown a plain, speedy, and adequate remedy by appeal. The petition for a writ of prohibition is denied.' This case was cited and quoted with approval concerning the effect of a plea of res judicata in Baird v. Superior Court, 204 Cal. 408, 412, 268 P. 640.

In Marshall v. Marshall, 69 Cal.App.2d 20, 157 P.2d 854, it appeared that tht wife had obtained an interlocutory decree of divorce in this state after contest; same was rendered on January 9, 1943, and included an award of alimony of $30 a month. In August of that year, the husband being in arrears upon the payments ordered, the trial court directed the issuance of an execution upon the judgment. Defendant husband then appeared and moved to set aside the writ of execution upon the ground that the interlocutory decree was void. He relied upon a divorce procured by him by default in Nevada on November 2, 1942. His motion was denied, and the court in affirming the order said 69 Cal.App.2d at page 28, 157 P.2d at page 858: ‘And it might be added that when Marshall appeared in the California court and asked for affirmative relief by filing a cross-compliant for divorce, and when he appeared and testified in that divorce proceeding without either pleading or referring to the action in Nevada, he submitted himself to the jurisdiction of that court and sought affirmative relief by way of a decree on his cross-complaint. Under these circumstances he ought not now be heard to say that that court had no jurisdiction. See Spitzer v. Superior Court, 75 Cal.App. 494, 498, 241 P. 270; Rideaux v. Torgrimson, 12 Cal.2d 633, 638, 86 P.2d 826.’ Accord: Hammell v. Britton, 19 Cal.2d 72, 84, 119 P.2d 333; Wolfsen v. Hathaway, 32 Cal.2d 632, 638, 198 P.2d 1.

This is not a proper forum in which defendant may urge the efficacy of the Nevada decree to terminate the wife's right to future support. He should have appeared in the case he had instituted in Illinois and there have pleaded the Nevada decree as res judicata. Of course, this would have subjected him to the risk of a determination that his Nevada domicile was not bona fide and the decree therefore void. But that was a hazard he must assume if he would rely upon the Nevada judgment as a defense to future alimony claimed by the wife. California is not the jurisdiction in which this contention can be entertained. The later Illinois judgment must prevail in this respect over that rendered in Nevada. See Perkins v. Benguet Cons. Min. Co., 55 Cal.App.2d 720, 744, 132 P.2d 70, certiorari denied, 319 U.S. 774, 63 S.Ct. 1435, 87 L.Ed. 1721.

Next arises the question of validity of the Illinois ‘Judgment Order’ of December 4, 1950, determining the arrearage under the maintenance decree to be $3,078, and reducing same to judgment in that amount. The court found therein that it has jurisdiction of the parties and subject matter and that Lewis was absent from the jurisdiction ‘so that process cannot be served upon him.’ There is no recital of any service upon his attorney, nor was there any evidence in the lower court upon that subject. The trial court found ‘that no summons or process of the Court, or any copy of the Petition for said Judgment Order was ever served upon Defendant in said action;’ and that the said judgment order was rendered without any jurisdiction whatsoever, defendant not having appeared upon the said hearing either in person or by attorney.

Under Illinois law, of which we take judicial notice (Code Civ.Proc. § 1875, subd. 3), notice of such an application given to the attorney or client is essential to its validity. See Kaufman v. Kaufman, 279 Ill.App. 1, 4; Schmahl v. Aurora Nat. Bank, 311 Ill.App. 228, 35 N.E.2d 689, 692. Such notice is also requisite to due process of law. Griffin v. Griffin, 327 U.S. 220, 228, 66 S.Ct. 556, 90 L.Ed. 635.

In the present instance there was a lapse of three years between the decree for maintenance and the judgment order fixing the amount of arrearages. The authority of the attorney of record had terminated with entry of judgment (Cummer v. Cummer, 283 Ill.App. 220, 237; McNab v. Dunsmure, 274 Ill.App. 560, 567), and hence notice to Lewis himself was necessary. Notice served upon the attorney would have been ineffective and the failure to find thereon is of no consequence.

The judgment order is not a binding judgment or order and the question of the amount of arrears was an open one in the trial court. Defendant testified that the had made no payments since October or November, 1947.

Past due items bear interest under California law (see Anderson v. Anderson, 129 Cal.App.2d 403, 411, 276 P.2d 862), as well as that of Illinois (Pope v. Pope, supra, 117 N.E.2d 65, 69; Simpson v. Simpson, 4 Ill.App.2d 526, 124 N.E.2d 573, 578).

The five year statute of limitation of this state controls (Code Civ.Proc. § 681; 31 Cal.Jur.2d § 15, p. 444), and that is the one upon which defendant relies.

Plaintiff appealed not only from the judgment but also from an order denying her motion to set aside the judgment and to enter a new and different judgment under § 663 of the Code of Civil Procedure. Reversal of the judgment being necessary, that ruling renders moot the appeal from the order denying the motion made under § 663. That appeal is therefore dismissed upon said ground (Lenahan v. City of Los Angeles, 14 Cal.2d 128, 134, 92 P.2d 1014).

The judgment is reversed and the cause remanded to the lower court for further proceedings not inconsistent with the views herein expressed.

FOOTNOTES

1.  We have substituted Illinois for New Jersey in quoting.

2.  The amended statute is here quoted as follows: “Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support, it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just, but no such order subsequent to the decree may be made in any case in which the decree recites that there has been an express waiver of alimony or a money or property settlement in lieu of alimony or where the courg by its decree has denied alimony.' Ill.Rev.Stat.1953, chap. 40, par. 19; S.H.A. ch. 40, § 19; Jones Ann.Stat. 109.186.'

3.  Chirgwin v. Chirgwin, 26 Cal.App.2d 506, 79 P.2d 772; Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923; Patterson v. Patterson, 82 Cal.App.2d 838, 187 P.2d 113; Cardinale v. Cardinale, 8 Cal.2d 2d 762, 68 P.2d 351; Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378; Knowlton v. Knowlton, 155 Ill. 158, 39 N.E. 595; Stephens v. Stephens, 319 Ill.App. 292, 49 N.E.2d 560; Shaw v. Shaw, 332 Ill.App. 442, 75 N.E.2d 411. The same is true of DeYoung v. DeYoung, 27 Cal.2d 521, 165 P.2d 457.

ASHBURN, Justice.

MOORE, P. J., and RICHARDS, J. pro tem., concur.

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