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

Brookee KUBON, Plaintiff and Appellant, v. Walter KUBON, Defendant and Respondent.*

Civ. 17727.

Decided: March 27, 1958

Robert W. Corlett, San Rafael, for appellant. Bruce B. Bales, San Rafael, for respondent.

The plaintiff wife appeals from a judgment denying her recovery on a Nevada money judgment which was based on orders in a divorce decree requiring defendant husband to pay support for two minor children. The appeal is on the judgment roll and certain exhibits of a documentary nature which were requested in the notice of appeal as is provided in Rule 5a, Rules on Appeal. The respondent, and the appellant to a lesser degree, attempt to supplement the record by reference in their briefs to the evidence. The scope of inquiry by this court cannot be widened by such a method. Hunt v. Plavsa, 103 Cal.App.2d 222, 229 P.2d 482. On an appeal such as we have here, we must presume that in the oral proceedings there was substantial evidence to support the findings.

“The evidence is not before this court, we are confined to a determination of the questions as to whether the complaint states a cause of action; [or the affirmative defenses in the answer constitute a defense], whether the findings are within the issues; whether the judgment is supported by the findings and whether reversible error appears upon the face of the record”. In re Estate of Larson, 92 Cal.App.2d 267, 268, 206 P.2d 852, 853.

From the reviewable record that is before this court, the following facts are ascertainable. On March 27, 1952, the parties were divorced in the District Court of Clark County, Nevada, which court, all agree, had personal jurisdiction of the parties. In conformity with an agreement between them, the property rights were settled, legal custody of the two minor children was given to both, the physical custody was awarded to the mother and the father was ordered to pay $100 per month for their support. The court specifically reserved ‘jurisdiction to make such other and further orders with respect to the care, custody, support and maintenance of the said minor children * * * as * * * may be proper.’

Appellant and respondent again appeared in the Nevada court on a motion to change custody, and on August 27, 1953, the order for physical custody was modified in respondent's favor to allow him the physical custody of the children during the summer vacations. The next time both parties appeared personally in the Nevada court was in October 1954, when in a contested hearing on a motion, the decree and previous order modifying it were modified to take away the respondent's summer time custody, and award full custody of the children to the mother, with right of reasonable visitation in Nevada to the father. The order for monthly support was continued in the last order of modification in the same amount per month.

Support payments for September 1954 to June 1955, both inclusive, admittedly were not paid. Pursuant to Chapter 128 of the Statutes of Nevada, appellant thereafter made a motion to reduce the delinquent support payments to a formal judgment. The court ordered service of that notice of motion on respondent by registered mail, return receipt requested. On this last motion, respondent made no personal appearance; and judgment was entered against him for $1,000, $250 attorney's fees and $10 costs.

On September 18, 1955, appellant filed her complaint in Marin County to establish the Nevada judgment as a judgment of this state. Respondent filed an answer in which he admitted submitting himself to the jurisdiction of the Nevada court in all proceedings except the last one, vis., the motion for judgment. He admitted the nonpayment of, and his ability to pay, the support during the ten month period involved in the judgment. He then sets up three affirmative defenses, each of which was the subject of a motion to strike, the motions being denied.

The affirmative defenses in substance are: (1) the Nevada court had no jurisdiction to enter the judgment sued upon because respondent was not given notice in accordance with the court's order directing that the notice of motion for judgment and accompanying papers be served upon him ‘by registered mail, return receipt requested,’ (2) that appellant denied respondent the right of reasonable visitation, and (3) it is against public policy to enforce this judgment in California because appellant does not come into court with ‘clean hands,’ she being in contempt of the very court whose aid she seeks, in that she violated a temporary custody order and a restraining order issued in a guarandianship proceeding pending in Marin County.

While the children were in Marin County during summer vacation and in respondent's physical custody, in accordance with the provisions of the Nevada decree then in effect, the respondent filed a verified petition for guardianship of their persons. This he was legally authorized to do by Section 1440 of the Probate Code, as the children at that time were temporarily domiciled with him in Marin County. Upon the filing of that petition, the courts of California and Nevada had concurrent jurisdiction over the custody of the children. Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739. The hearing on the petition for guardianship was set for August 30, 1954, notice thereof being given to appellant by registered mail directed to her at her address in Las Vegas. Concurrently, with the filing of the petition, petitioner obtained an ex parte order, upon the authority of Probate Code section 1442, giving him exclusive temporary physical custody of the children pending the hearing on the petition. The order also restrained appellant from taking the children from respondent's custody before hearing of the petition.

The trial court found that in ‘willful violation, definance and contempt of said restraining order, plaintiff kidnapped said children from their San Rafael home on August 20, 1954, carried them across the California border and until the Nevada court hearing of October 20, 1954 * * * concealed said children * * *’ In finding the allegations of paragraph III of the complaint to be true, the court found that after the abduction on August 20, 1954, and on or about October 21, 1954, in a hearing in which the Nevada court had jurisdiction of the parties, the respondent was deprived of his summer vacation physical custody and he was required to pay $100 a month child support.

It may be helpful to determine what this case does not involve, in view of the extensive discussions in the briefs on related matters which cannot affect this appeal. The action is not to establish the Nevada divorce decree as a continuing judgment in California, nor an action to modify a decree of another state, nor an action for future support payments, nor is it an action involving custody of minor children and it is not a proceeding to punish the appellant for contempt of court because she took the children out of California in violation of a restraining order. It is only an action on a final judgment of a sister state based upon a support order which that court had jurisdiction to make. We are in no way concerned with retroactively modifiable support orders because here there is a final judgment not subject to modification.

The first thing to determine is whether or not the Nevada court had jurisdiction of the respondent to enter the judgment. If it had jurisdiction, the judgment of the Nevada court is entitled to full faith and credit and is res judicata of the rights of the parties as of the date of the judgment. The court cannot go behind the Nevada decree. That decree is just as binding on this court as if it had been rendered by a court in this state. In re Bauman, 82 Cal.App.2d 359, 361, 186 P.2d 154. The trial court made this finding: ‘That on April 15, 1955, the Nevada District Court in which plaintiff secured the alleged judgment marked ‘Exhibit A’ and made a part of said complaint made and entered an order directing that plaintiff's Notice of Motion for Judgment, together with the motion, affidavit and court order, be served upon this defendant Walter J. Kubon ‘by registered mail, returned receipt requested;’ that said prescribed manner of service was not followed prior to the rendition of judgment or at all; that no return receipt bearing defendant's signature has ever been presented to or filed with said Nevada District Court; and because of the foregoing said court never acquired jurisdiction to render said judgment.'

The recitation that ‘said court never acquired jurisdiction’ is but a conclusion of law, not supported by the findings of fact contained in the same paragraph. It is apparent that the conclusion referred to is based upon the finding that ‘no return receipt bearing defendant's signature has ever been presented.’ However, the order fixing the kind of notice to be given did not require a return receipt signed by the addressee only. The registered return receipt has been included in the record on appeal and it shows that it was signed in this manner—‘Walter J. Kubon by Charlotte G. Kubon.’ The defendant having personally appeared in the Nevada divorce action, and having by that decree been ordered to support his children, that court had jurisdiction over him to enter a judgment for delinquent payments upon a notice served upon hin in the manner directed by the court.

Assuming, without deciding, that it is a defense in Nevada in an action to collect child support, to establish the wife's failure to comply with the decree permitting the husband reasonable visitation, such a defense is not now available to the husband because it is res judicata. Issues already tried and determined may not be relitigated in a second action.

‘If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this rule is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.’ Sutphin v. Speik, 15 Cal.2d 195, 202, 99 P.2d 652, 655, 101 P.2d 497.

The third affirmative defense is based on the rule that ‘a party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes.’ MacPherson v. MacPherson, 13 Cal.2d 271, 277, 89 P.2d 382, 385. The rule as stated is the basis for the refusal of a court to act on an application for relief from one who stands in an attitude of contempt in the following cases cited by the respondent: Weiner v. Weiner, Sup., 149 N.Y.S.2d 474; White v. White, 71 Cal.App.2d 390, 163 P.2d 89; Knoob v. Knoob, 192 Cal. 95, 218 P. 568; Weeks v. Superior Court, 187 Cal. 620, 203 P. 93; Williams v. Williams, 103 Cal.App.2d 276, 229 P.2d 830 and Pearson v. Superior Court, 32 Cal.App.2d 87, 89 P.2d 162. Three later cases, not cited, which use the same rule as a basis for dismissal of an appeal are: Kottemann v. Kottemann, 150 Cal.App.2d 483, 310 P.2d 49; In re Estate of Scott, 150 Cal.App.2d 590, 310 P.2d 46; and Rude v. Rude, 153 Cal.App.2d 243, 247, 314 P.2d 226, 229.

In all the foregoing cases, except In re Estate of Scott, the contempt was in the very proceeding in which the party in contempt sought relief. The rule so often stated, if literally applied, is wide enough to justify a court in refusing to act on behalf of the person who is an contempt in a separate proceeding. However, research discloses only the In re Estate of Scott as applying the rule to authorize a dismissal of an appeal by one who was in contempt of court in an unrelated proceeding. In the Scott case, the appeal from an order appointing a trustee of the estate of a missing person was dismissed on respondent's motion, where it was shown that L. Ewing Scott, the appellant, was a fugitive from justice, and was in contempt of court in a criminal action. He stood charged in the criminal case with unlawful activities involving his missing wife's property. No petition for hearing in the Supreme Court was filed.

We need not here decide whether the rule of the MacPherson case would or would not justify a trial court in refusing to hear an application for relief by one who admittedly stands in an attitude of contempt in another proceeding, for reflection reveals that such a situation is not involved. There was no attempt by the respondent in either the trial court or appellate court, by motion or application for writ or otherwise to preclude the matter from being heard. There was an actual trial, evidence was introduced, rulings were made, the case was argued, trial briefs were filed, and in all respects there was a trial on the merits. The finding of fact that appellant was in contempt of court before the trial started, while it might have justified the trial court in not hearing the case at all until plaintiff was purged of contempt, does not have a probative value in determining who is entitled to a judgment after a complete trial involving all issues presented by the pleadings. The plaintiff's motion to strike from the answer the last discussed affirmative defense should have been granted.

Judgment reversed with directions to enter judgment consistent with this opinion.

BRAZIL, Justice pro tem.

DOOLING, Acting P. J., and DRAPER, J., concur.

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