GOODWINE v. GOODWINE (1965)

This is a petition for a writ of mandate to compel the respondent court to vacate its order dismissing petitioner's action for separate maintenance, and to take jurisdiction of the subject matter of the action and of the person of the defendant husband and over the husband's property situated within the county in which the action was brought pursuant to a writ of attachment issued in the action.

On October 8, 1964, petitioner commenced an action for separate maintenance in the Superior Court of the State of California in and for the County of Los Angeles, entitled ‘Marjorie E. Goodwine, also known as Marjorie E. Good, Plaintiff, vs. Don F. Goodwine, also known as Don F. Good * * * Defendants. No. D657931.’

The following facts appear from the verified complaint and various affidavits filed with the court below. Except as indicated, they are not here in dispute. Whether any of them may hereafter become issues in the litigation is, as we point out below, not here material.

The parties were married in Reno, Nevada, on April 1, 1955. In March of 1963 the husband retired, and thereafter in October 1963 the parties moved to Mexico to live in retirement. The husband obtained a resident's visa and became a permanent resident and domiciliary of Mexico. Petitioner obtained a ‘tourista visa’ because of the regulations of Mexico relating to immigration, although at the time petitioner did intend to become, as her husband, a permanent resident of Mexico. This visa was renewed from time to time as required by the laws of Mexico. The parties took up residence at Aurora 575 Colonia Chapalita, City of Guadalajara, State of Jalisco, Country of Mexico, and the husband has been since that date a permanent resident and domiciliary of Mexico.

During the course of their marriage and particularly during the period of time that the parties were domiciled in Mexico, the husband treated petitioner with extreme cruelty and inflicted upon her grievous mental and physical suffering, which course of conduct forced petitioner to leave her husband in Mexico on September 3, 1964. Petitioner returned to California and took up residence with her sister. Paragraph IX of petitioner's verified complaint alleges ‘Plaintiff resides at 6905 Rosewood Avenue, Los Angeles 65, California, and defendant resides at Aurora 575, Colonia Chapalita, Guadalajara, Jalisco, Mexico.’

Petitioner, by her complaint for separate maintenance, sought reasonable sums for her support and maintenance, both during the pendency of the action and permanently thereafter, alleging that under present conditions and circumstances, $1,000 per month was a reasonable sum. Petitioner also sought attorney's fees and court costs.

In Paragraph VII of her complaint petitioner alleged that her husband owned real property situated in the County of Los Angeles which produced income from which she believes that the costs and support money prayed for could be satisfied both during the pendency of the action and permanently thereafter. The relief prayed for was for support and maintenance in a reasonable amount, a restraining order enjoining the husband and his agents, during the pendency of the action, from disposing of the property referred to, and for the appointment of a receiver or other appropriate remedy to secure the payment of any sums ordered for her support and maintenance as well as for court costs and attorney's fees.

At the time the complaint was filed, counsel for petitioner caused to be filed a declaration for attachment against a nonresident and furnished a written undertaking in connection therewith in compliance with the provisions of section 539, Code of Civil Procedure, and Rule 9, section 6,* of the Rules of the Superior Court. A writ of attachment in the amount of $65,000 was issued and was levied by the sheriff upon the husband's real property described in the complaint.

On October 8, 1964, the date the complaint was filed, order for publication of summons was obtained upon the ground that the husband resided outside the State of California. On the same date, petitioner filed her declaration in support of an order to show cause, and such order was issued, seeking attorney's fees, court costs and support pendente lite, the appointment of a receiver, and requesting a temporary restraining order prohibiting the husband or his agent from disposing of the real property described in the complaint. The order to show cause was set for hearing on November 23, 1964. Thereafter, petitioner caused to be served a copy of the summons and complaint, together with a copy of the order to show cause and declaration in support thereof, upon the defendant husband personally at his place of residence in Mexico. Thereafter, the defendant husband, through his counsel, filed a notice of motion entitled ‘Notice of Intention of Defendant to Move the Court for its Order to Quash Levy of Attachment and Service of Summons and Complaint and to Dismiss this Action and Motion for Special Appearance Only.’ The contents of the motion are set out below.¹

The motions designated in the foregoing notice were set to be heard on November 23, 1964. The husband, through his counsel, also filed as a special appearance a notice of motion for additional time to plead in the event the motions to quash were denied. All matters were continued for hearing until December 16, 1964, upon the understanding that the agreement to continue did not constitute a general appearance on the part of the defendant husband.

Petitioner filed points and authorities in opposition to the motions to quash, urging that the purpose of the levy by writ of attachment on the husband's real property situated in Los Angeles County was to secure in rem jurisdiction only over the nonresident husband's property within the respondent court's jurisdiction, and over which the respondent court could appoint a receiver to pay petitioner the moneys sought under her order to show cause. Petitioner also urged in the trial court, as she does here, that the husband's motion being one to dismiss the cause of action, and his attack on the writ of attachment, although designated as a special appearance was, under the law, a general appearance because of the nature of the relief sought. She urges, further, that under these circumstances the husband has subjected himself in personam to the jurisdiction of the respondent court.

After hearing of the foregoing orders and motions the respondent court, on December 30, 1964, made its order as follows: ‘It appearing to the Court that through inadvertence and clerical error, the minute order of December 16, 1964, does not properly reflect the order of the court, said order is vacated in toto, and the following order is made instead nunc pro tunc, as of December 16, 1964:

“Court and counsel confer in chambers, and upon motion of defendant's attorney, who appears especially [sic] for the sole purpose of objecting to the court's jurisdiction, defendant's Motion to Quash Levy of Attachment and Service of Summons and Complaint and to dismiss the action is granted, provided, that the order to Quash Service of Summons and Complaint and the Writ of Attachment and motion to dismiss is stayed pending the filing, consideration, and disposition by the District Court of Appeals, of a Writ of Prohibition and Mandate to be made by the plaintiff herein, provided, such petition is filed in the Clerk's office of the District Court on or before January 15, 1965.”

The husband asserts that no motion to dismiss the cause of action was made in his behalf and that the respondent court, on its own motion, having determined that it did not have jurisdiction to issue the order to show cause for the reason that petitioner was not properly in court, dismissed the action.

There is no record before us of the oral proceedings had at the time of the hearing of the motions. Opposite the title of the notice of motion filed on behalf of the husband there is set forth what appears to be a description of the various motions encompassed within the body of the document, one of which is, ‘to dismiss this action.’ In the body of the notice, however, the only motions which the husband gave notice that he would make before the respondent court were for its order to quash service on defendant of summons and complaint and the order to show cause and declaration of plaintiff and to dissolve the writ of attachment heretofore issued and to quash the levy of attachment. These motions were made as a special appearance. No explanation is offered as to why a dismissal of the action was referred to in the description of the motions to be made appearing opposite the title, while no reference to a motion to dismiss is contained in the body of the notice. It appears that the former is descriptive only of the document as a notice of motion, for the purpose of filing while the latter is the substance of the notice to petitioner of precisely what motions would be and were made. The character of the relief asked and not its label, determines the nature of the motion. (Holtkamp v. States Marine Corporation, 165 Cal.App.2d 131, 136, 331 P.2d 679.) We conclude that the husband did not move to dismiss the action and that the order of dismissal was made on the court's own motion on the grounds of lack of jurisdiction to proceed with the trial of the cause. The appearance of the husband under these circumstances was special and not general and the court did not acquire jurisdiction over his person by such appearance. (Crabtree v. Superior Court, 197 Cal.App.2d 821, 827–828, 17 Cal.Rptr. 763.)

Petitioner alleged in her verified complaint that she was, at the time of filing thereof, a resident of the State of California. The husband, in support of his motions, filed an affidavit wherein he averred:

‘That he is a resident of the State of Jalisco, Republic of Mexico. That he left the United States of America and established legal permanent residence in Mexico and became a permanent resident of Mexico on October 4, 1963. That plaintiff accompanied affiant to Mexico and became a permanent resident of Mexico with the status of Tourista. Affiant's status was and is 'Immigrante Rentista’ which is in effect permanent immigrant status. That plaintiff lived with affiant as his wife at Aurora 575 Colonia Chapalita, Guadalajara, Jalisco, Mexico, until plaintiff left Mexico for California, September 3, 1964 and has never returned. That at the time plaintiff left affiant she stated that she was going to Puerto Vallarta, Jalisco, Mexico, a 45 minute ride by airplane, and that she would return next day. That affiant was informed by the sister of plaintiff that plaintiff went to Los Angeles, California, subsequent to September 3, 1964. Affiant further avers that plaintiff returned to Guadalajara, Mexico, after October 7, 1964, and caused the complaint and order to show cause to be personally served on affiant. That the property described in the complaint and order to show cause and attachment is the separate property of affiant acquired by affiant in 1942. * * *'

We need not decide whether the husband's affidavit was or was not adequate to refute the allegation in the complaint, since we conclude that, even if neither the wife or the husband are domiciled in this state, the trial court had jurisdiction over petitioner's action.

It is not doubted that an action for separate maintenance lies on behalf of a domiciliary wife against a nonresident husband. And California has held that, if the husband is a domiciliary, an action for separate maintenance will lie against him by a nonresident wife. (Wynne v. Wynne, 20 Cal.App.2d 131, 136, 66 P.2d 467; Hiner v. Hiner, 153 Cal. 254, 94 P. 1044.) Counsel cite us to no California cases, and we have found none, bearing on the principal problem before us: May a nonresident wife maintain, in the courts of this state, an action for support and maintenance against a nonresident husband who has property in this state subject to a writ of attachment. The cases in other jurisdictions are in conflict (see 74 A.L.R. 1242). We conclude that the answer should be in the affirmative.

While the domicile of at least one party is essential in order to create jurisdiction for divorce, the reason for that rule does not apply in cases of separate maintenance. The divorce action is in rem, and it affects the existence of a status of vital importance to society. For this reason, only a state which is the domicile of at least one party has sufficient interest to be allowed to adjudicate the issue of termination of the marital status. But a suit for separate maintenance does not dissolve the marital status. The legitimate purpose of such an action is to enforce one of the covenants—the husband's duty of support—implied by law in every American jurisdiction as part of the basic contract by which the marital status was created. Where the relationship is commercial, an action, based on attachment and substituted service, may always be brought on the contract by any promisee against a nonresident promisor where the obligation is the payment of money. (Code Civ.Proc. § 537, subd. 2.) Section 537 of the Code of Civil Procedure, by its express terms, is applicable to the kind of cause of action herein involved. Subdivision 2 of that section authorizes the use of attachment ‘[I]n an action upon a contract, express or implied, against a defendant not residing in this State, or who has departed from the State, or who can not after due diligence be found within the State, or who conceals himself to avoid service of summons.’ And subdivision 1 of that same section, expressly provides that ‘an action upon any liability, existing under the laws of this State, of a spouse * * * for the support, maintenance, care or necessaries furnished to the other spouse * * * shall be deemed to be an action upon an implied contract within the term as used throughout all subdivisions of this section.’ Service of summons by publication or by other form of substituted service for notifying an absentee or nonresident defendant of the pendency of an action against him is allowed to be effectual where, in connection with the process directed against the person, property within the state is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property, or affecting some interest therein. (Murray v. Murray, 115 Cal. 266, 275, 47 P. 37; Baldwin v. Baldwin, 28 Cal.2d 406, 415, 170 P.2d 670.)

Whether or not the covenant relied on has been broken, and whether or not the promisor can show justification or excuse for an apparent breach, are issues always inherent in every action for breach of contract, whether jurisdiction is obtained by personal service or by attachment and substituted service. But these are issues going to the ultimate merits of the action, to be decided after trial; they are not matters to be litigated in limine at the point of determining jurisdiction.

In this action, as in any action in which jurisdiction quasi in rem is obtained by attachment, the defendant may, if he wishes, abandon the attached property. But it is urged that, if he elects to attempt to protect the attached property by entering an appearance and contesting the wife's claims, and is not successful in that attempt, he risks subjecting himself, in some future suit for divorce or for maintenance in some other jurisdiction, to the claim that the issues of his wife's innocence and of his fault have become res judicata. We need not now decide whether or not the concept of ‘divisible divorce,’ is here applicable. The husband here risks no more than does any other defendant who seeks to defeat a valid attachment by winning the law suit in which it was levied.

In fact, there appear to us to be reasons in favor of permitting such a suit which are even greater than in commercial cases. The wife, by universal law, is prima facie entitled to support from her husband. But experience shows that the enforcement of that right, even when it has been judicially confirmed, frequently requires resort to supplementary judicial proceedings. To require a wife to first sue her husband in the courts of his domicile, but where there may or may not be property subject to levy for the collection of her judgment, and then to ask her to come here, after the husband—warned by the first suit—has had a chance to dispose of or secrete his present California assets, not only imposes on her the burden of two law suits, but subjects her to the risk of ultimate frustration. We think that the social policy which everywhere imposes the duty of support requires any state having property which could be devoted to the satisfaction of that duty to entertain the wife's action for its enforcement.

Counsel for the respondent court urges that the order dismissing petitioner's action was made by that court in the exercise of a discretion not to accept jurisdiction of a cause of action where it was claimed that both parties were residents of Mexico. The record does not sustain this contention.

The doctrine of forum non conveniens has been recognized in California as a ground upon which a court may refuse to exercise jurisdiction over a cause of action which arose outside the state's boundaries. It is a rule of equity embracing the discretionary power of a court to decline to exercise an admitted jurisdiction over a transitory cause of action when the court believes that that action could be more appropriately and justly tried elsewhere. (Price v. Atchison, T. & S. F. Ry. Co., 42 Cal.2d 577, 580, 268 P.2d 457.) But there is nothing in the record before us to suggest that the trial court was asked to decline to exercise the jurisdiction which it had over petitioner's cause of action on the theory of forum non conveniens, or that the order of dismissal was based on that doctrine. The court's order dismissing petitioner's action, above quoted, recites that respondent had appeared ‘for the sole purpose of objecting to the court's jurisdiction’ and the order obviously was based on an acceptance by the trial court of the theory (which we have rejected above) that it was without power to entertain a suit for the support of a wife where neither party was domiciled in this state.

Nor is there anything in the record to show that there exist, in this case, any special and extraordinary facts which would justify nonrecognition of the policy factors which, as we have shown above, underlie the existence of jurisdiction by our courts over such causes of action.

Let a peremptory writ of mandate issue, directing the respondent court to set aside and vacate its order quashing the levy of attachment and the service of summons and complaint, together with its order dismissing the action, and to proceed to hear and to determine petitioner's action in accordance with the views expressed in this opinion. The alternative writ, heretofore issued in this case, is discharged.

FOOTNOTES

1.  ‘To the above named plaintiff and to her attorneys, Cooper and Nelsen, and to Peter Pitchess, the Sheriff of Los Angeles County, California: ‘You, and each of you, will please take notice that the defendant Don F. Goodwine, also known as Don F. Good, appears specially by his attorneys, Newman & Newman and Nathan Newby, Jr., and will move the above entitled court in Department 8 thereof on the 23rd day of November, 1964, at the hour of 1:30 o'clock P.M., or as soon thereafter as the matter may be heard in the courtroom of Department 8, located at 111 North Hill Street, Los Angeles, California as a Special Appearance only for its order to quash service on defendant of summons and complaint and the order to show cause and declaration of plaintiff and to dissolve the writ of attachment heretofore issued by this court and to quash the levy of attachment by the Sheriff of Los Angeles County on the separate property of defendant alleged in paragraph VII thereof and being described as: ‘The S. 25.2 feet of Lot 3, Block E of Raymond Villa Tract No. 1, in the City of South Pasadena, as appears of record in Map Book, Page 91 of Maps, in the Office of the County Recorder of Los Angeles County, California, with appurtenances thereupon situated and located. ‘That said motion is made as a Special Appearance on the following grounds: ‘1. That defendant is a non-resident of the State of California and ever since October 4, 1963 has been and now is a non-resident of the State of California and that this Court does not have jurisdiction of his person or property described in the complaint. ‘2. That plaintiff was and is a resident of Mexico at the time of the filing of this action and at all times mentioned in the complaint and in her declaration in support of her application for publication and for support of her order to show cause, was and now is a non-resident of the State of California and of the United States. ‘3. That the property described in the complaint and which was attached by the Sheriff of Los Angeles County under a writ of attachment issued by this court is described by said complaint as the property of the defendant and not as community property and that this court does not have jurisdiction to authorize attachment of, or to appoint a receiver of this separate property referred to in the order to show cause as 1014 Fair Oaks, South Pasadena, California. ‘Said motion will be based on the files and records on file, the declaration of plaintiff and the affidavit of defendant and the affidavit of Edmundo Gonzales, Consul General of the United States of Mexico, and points and authorities filed herewith and any testimony taken at the time of hearing. ‘Dated: November 4, 1964.’

FRAMPTON, Justice pro tem.*