BALLENTINE v. SUPERIOR COURT IN AND FOR SAN MATEO COUNTY ET AL (1944)

This is an application for a writ of prohibition to restrain the respondent court from enforcing an order of contempt against the petitioner and for a writ of mandamus ordering the respondent court to dismiss a divorce action pending before said court. Heretofore the trial court granted a decree of divorce to Mary T. Ballentine, the petitioner's wife, and entered an interlocutory decree. In that decree, among other things, it was provided that the petitioner, the plaintiff and cross–defendant in the divorce action, should pay to Mary T. Ballentine, the defendant and cross–complainant, $150 per month. Such payments were made to and including the 1st day of November, 1943. However, on the 11th day of March, 1944, she filed an affidavit and asked for orders that the plaintiff and cross–defendant appear and show cause why he should not be punished for contempt for having failed to make any additional payments. At this time the petitioner contends said affidavit was insufficient to show that the trial court had jurisdiction to make said order. Phillips v. Superior Court, 22 Cal.2d 256, 137 P.2d 838. However, the affidavit recited as follows: “* * * but has not made said payments or any of them since said November 1st, 1943, although in possession of sufficient funds so to do according to the best of the information and belief of affiant; that said plaintiff and cross–defendant was in court at the time of the making of said provisions of said decree, and that the amount of said payments so as aforesaid ordered to be made was fixed at the suggestion of said plaintiff and cross–defendant; that in addition thereto, a copy of said interlocutory decree was shortly after the 10th day of September, 1943 served upon Messrs. Max H. Margolis and Paul A. McCarthy, the attorneys for plaintiff and cross–defendant;

“That to the best of the information and belief of affiant, plaintiff and cross–defendant has been able at all of said times to comply with said order; that said plaintiff and cross–defendant has been employed for the greater portion of said time from November 1, 1943 to the date hereof, and that the failure of said plaintiff and cross–defendant to comply with said decree as hereinabove set forth has been wilful and without just cause; * * *.” We think said recitals are such that the petitioner's contention may not be sustained.

On the 10th day of September, 1943, the Superior Court of the State of California in and for the County of San Mateo entered an interlocutory decree of divorce in favor of Mary T. Ballentine, defendant and cross–complainant, against Edward W. Ballentine, plaintiff and cross–defendant. Thereafter Edward W. Ballentine, as plaintiff, commenced an action against Mary T. Ballentine to recover a judgment of divorce. That action was commenced in the District Court of the State of Nevada in and for Washoe County. The defendant Mary T. Ballentine appeared therein, filed an answer and cross–complaint, and pleaded in haec verba the interlocutory decree so rendered by the said Superior Court in and for San Mateo County. On the 18th day of September, 1943 the District Court of the State of Nevada in and for the County of Washoe entered a final decree in favor of Mary T. Ballentine as defendant and cross–complainant against Edward W. Ballentine as plaintiff and cross–defendant. The decrees were substantially the same on the subject of maintenance. Because the former decree was interlocutory and the latter was a final decree Edward W. Ballentine now contends the Superior Court at San Mateo lost jurisdiction. That is he contends as follows: “Where merely an interlocutory decree of divorce is rendered in California and thereafter, and before a final decree of divorce can be entered in California, the other spouse becomes a bona fide resident of the State of Nevada and there files an action for absolute divorce, in which action the defendant files an answer denying, among other things, that the plaintiff in the latter cause of action is or has been a resident of Nevada where the action is filed, and also files a cross–complaint wherein she seeks affirmative relief including a decree of divorce and alimony, and thereupon, upon a trial such defendant and cross–complainant is awarded a decree of absolute and final divorce on her cross–complaint with provisions for alimony and other relief, and such a decree is rendered, filed and entered prior to any final decree of divorce in California where the first action was commenced, the decree in the State of Nevada is res judicata on all issues in the original action in California, and the California courts and the wife in whose favor a decree was rendered in the State of Nevada are bound by the finality of the Nevada decree. No further proceedings on the California interlocutory decree can be maintained by reason of the final determination of the marital status by the Nevada court; that decree supersedes the interlocutory decree in California and prevents any further proceedings on the interlocutory decree in California, and necessitates a dismissal of the California action because of the prior dissolution of the marriage by the Nevada court pursuant to the cross–complaint of the wife and the decree in her favor in that action in Nevada.”

Before we proceed to discuss authorities the exact nature of the contentions of the parties should be carefully noted. In the action commenced in San Mateo County, Mrs. Ballentine was the defendant and she filed an answer and cross–complaint. Later she was awarded a decree on her cross–complaint and was awarded maintenance in the sum of $150 per month, the custody of two minor children and maintenance for them in the sum of $50 per month. The uncontroverted evidence is that after November 1, 1943 no payment was made and, relying on the provisions in the interlocutory decree, Mrs. Ballentine, on the 11th day of March, 1944, filed an affidavit and took out an order to show cause why the plaintiff should not be punished for contempt. In response to that order to show cause Mr. Ballentine appeared and through his counsel moved to quash proceedings on the order to show cause and to dismiss said action. In support of said motion he filed certain affidavits. The hearing of the motion occurred on April 24, 1944. At that time Mr. Ballentine produced the decree of divorce entered in the Second Judicial District Court of the State of Nevada in and for the County of Washoe in an action entitled Edward W. Ballentine v. Mary T. Ballentine. No attack was made on either judgment and no claim was made that either court did not have jurisdiction to render the decree which it rendered. Nor was the Nevada decree pleaded by either party. Mound Water Co. v. Southern Cal. Edison Co., 184 Cal. 602, 611, 194 P. 1014. As to the amount of each installment of maintenance money and the time for the payment thereof the terms of the two decrees were identical. The sole questions before the court were what payments had been made and why had others not been made as directed by the terms of the interlocutory decree of the trial court. Neither decree contained any adjudication on either of those questions and no question of res judicata was involved. 34 C.J. 746.

It follows that the record presents no facts warranting the application of the doctrine of res judicata.

Mr. Ballentine also contends that under the facts hereinabove set forth the Nevada decree superseded the California decree and that the California action should be dismissed. Although he does not use the identical word, the purport of the point is that the California decree was merged in the Nevada decree. That position is not supported by the facts. There was no merger. Lilly–Brackett Co. v. Sonnemann, 163 Cal. 632, 126 P. 483, 42 L.R.A.,N.S., 360, Ann.Cas.1914A, 364. Moore v. Justices of Municipal Court of City of Boston, 291 Mass. 504, 197 N.E. 487, was an application for a writ of prohibition. It involved the following facts. On June 20, 1932 the Merrimac Chemical Company recovered a judgment in the state of Massachusetts. It took out a writ of execution which was still outstanding. In December, 1933 it brought an action in the Superior Court of Maine upon its judgment. Moore entered a general appearance and on May 12, 1934 a personal judgment was rendered against him. On May 28, 1934 the Merrimac Chemical Company instituted supplementary process proceedings against the petitioner in the Municipal Court of the City of Boston. Such proceedings were based upon the original judgment recovered in the commonwealth of Massachusetts. On appeal the question was whether that judgment was merged in the judgment rendered by the Superior Court of Maine in 1934. The court made an exhaustive study of the subject. On page 488 of 197 N.E. the court said: “The underlying principle on which the doctrine of merger rests is that a judgment is an obligation of higher quality than the original cause of action as to defenses, permanence and remedies for collection. The public welfare and the interests of parties require that there be not a repetition of trials of the same issues. The reasoning on which the doctrine of merger rests is not applicable where an action on a judgment rendered in one state is brought in another state and a second judgment there recovered. No obligation of stronger attributes is thus created. Commonly, there is no difference in the quality attaching to the judgments of courts of different states. They stand on the same footing in essential particulars. One has no superiority over the other; one is of as high a nature as another. The great weight of authority supports this view. Griswold v. Hill, Fed.Cas.No.5,836, 2 Paine 492; Wells v. Schuster–Hax National Bank, 23 Colo. 534, 48 P. 809; Lilly–Brackett Co. v. Sonnemann, 163 Cal. 632, 126 P. 483, 42 L.R.A.,N.S., 360, Ann.Cas.1914A, 364; Bates v. Lyons, 7 Paige, N.Y., 85; In re Williams, 208 N.Y. 32, 36, 101 N.E. 853, 46 L.R.A.,N.S., 719; Weeks v. Pearson, 5 N.H. 324; Springs v. Pharr, 131 N.C. 191, 193, 42 S.E. 590, 92 Am.St.Rep. 775; Van Winkle v. Owen, 54 N.J.Eq. [253], 9 Dick. 253, 258, 259, 34 A. 400. See cases collected in 44 A.L.R. 462–464. To the same effect, see Am. Law Inst. Restatement, Conflict of Laws, § 450f, Merger, note 5; Story on Conflict of Laws (8th Ed.) § 599, note (a); 2 Beale on Conflict of Laws, p. 1427. See to the contrary Gould v. Hayden, 63 Ind. 443.” It follows that the California decree was not merged in the Nevada decree.

Continuing he contends that unless the interlocutory decree in the California case becomes a nullity by the entry of a final decree in the state of Nevada, the cross–complainant in the case would, when the times arrives, seek to have a final decree in accordance with the terms of the interlocutory decree and the cross–defendant would thereupon be subject to double liability by the decree in California awarding alimony in addition to and independent of the judgment of the Nevada court for alimony in favor of the cross–complainant. Be that as it may, the cross–complainant will not be injured. It is settled law that “When judgment is rendered upon the judgment of a court of another state, a payment of either judgment discharges the obligation of the other judgment.” Restatement of the Law, Conflict of Laws, sec. 442.

We are therefore of the opinion that the California decree and the Nevada decree “* * * stand on the same footing in essential particulars. One has no superiority over the other. One is of as high a nature as the other.” That the trial court had jurisdiction to entertain contempt proceedings is statutory. (C.C. sec. 137.) Nothing that the defendant and cross–complainant did has deprived her of the right to maintain this proceeding. In re Williams, 208 N.Y. 32, 101 N.E. 853, 46 L.R.A.,N.S., 719; Lindsay Great Falls Co. v. McKinney Motor Co., 79 Mont. 136, 255 P. 25, 28; Bruton v. Tearle, 7 Cal.2d 48, 59 P.2d 953, 106 A.L.R. 580.

On March 11, 1944, Mary T. Ballentine served and filed her affidavit and an order to show cause. On March 23, 1944, Edward W. Ballentine executed an affidavit in reply. Thereafter in open court his attorney tendered said affidavit in defense of said order to show cause. An objection was made and the objection was sustained. However at a subsequent session of the court the objection was withdrawn and said affidavit was received and the trial court read it. This petitioner assigns the first ruling of the trial court as error. However the record as quoted shows the error, if any, was not prejudicial to the said affiant Edward W. Ballentine.

The application for a writ of prohibition is denied and the application for a writ of mandamus is denied.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concur.