KULKO v. HORN (1976)

Petitioner seeks a writ of mandate after respondent court denied his motion to quash service of summons. The action underlying the petition is brought by real party in interest, Sharon Horn, who is petitioner's former wife and the mother of their two children. The complaint seeks establishment as a California judgment of a foreign divorce decree (Haiti) and also requests orders for custody and support of the children.

Petitioner concedes that the superior court has jurisdiction of the subject matter of the action and also has authority to determine the question of child custody. He contends, however, that the court lacks personal jurisdiction to impose upon him an obligation of increased child support.

It has been determined that a California court cannot impose upon a father a personal liability or obligation for child support unless it obtains personal jurisdiction over him. (Titus v. Superior Court (1972) 23 Cal.App.3d 792, 100 Cal.Rptr. 477.) The relevant principles of the California law pertaining to personal jurisdiction in Titus were summarized as follows: ‘In order to obtain personal jurisdiction over petitioner by service outside this state, it is necessary that the California court have power to exercise such jurisdiction under Code of Civil Procedure section 410.10 which provides: ‘A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.’ The general provision is said ‘to incorporate in California law, without specific statute or decision by our own courts, any basis of jurisdiction established now or in the future by courts properly appraising constitutional limitations.’ (1 Witkin, Cal.Procedure (2d ed. 1970) § 7, p. 532.) [¶] Witkin observes that the recognized bases of judicial jurisdiction are those listed in the Restatement and that these have, in essence, been incorporated in Code of Civil Procedure section 410.10. (See 1 Witkin, Cal.Procedure (2d ed. 1970) § 72, pp. 601–602.) These bases are the following: ‘(a) presence; (b) domicil; (c) residence; (d) nationality or citizenship; (e) consent; (f) appearance in an action; (g) doing business in the state; (h) an act done in the state; (i) causing an effect in the state by an act done elsewhere; (j) ownership, use or possession of a thing in the state; (k) other relationships to the state which make the exercise of judicial jurisdiction reasonable.’ (Rest.2d Conflict of Laws, § 27, p. 120; see 1 Witkin, Cal.Procedure (2d ed. 1970) § 77, pp. 601–602.)' (Id. at p. 799, 100 Cal.Rptr. at p. 483.)

Under the facts of this case, petitioner is subject to California's personal jurisdiction only if his conduct fell within the provision of subparagraph (i) of the bases listed above, that is: that he caused an effect in this state by an act done elsewhere.

If he consented to the decision of his children to move to California and to take up residence with their mother it is clear that such conduct was an act, or acts, causing an effect in this state. The mother is now faced with the direct and immediate financial burdens of providing for the children's food, shelter, clothing, schooling, and other needs. That petitioner recognizes this effect is apparent from the following language contained in a letter which he wrote to the mother: ‘I would like to renegotiate the original agreement with you in as much as it is invalidated. I would like for you to present to me what you feel would be a fair & equitable arrangement. I would like to do it without lawyers as you know how I feel about them.’

The question whether petitioner voluntarily consented to his children's residence in California is one of fact. It was presented to the court on conflicting evidence. Although the judge made no finding on this point we must assume that he resolved it in favor of real party, since this result supports his decision. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193; 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 235, pp. 4225–4226.)

The alternative writ of mandamus is discharged and the petition for a peremptory writ is denied.

FOOTNOTES

FOOTNOTE.  

EMERSON,* Associate Justice (Assigned). FN* Retired Judge of the Superior Court sitting under assignment by the Chairman of the Judicial Council.

RATTIGAN, Acting P. J., and CHRISTIAN, J., concur.