Lewis v. Lewis

P.2d 19 ]; Pope v. Pope, 2 Ill.2d 152 [ 117 N.E.2d 65 ].) He contends, however, relying on Chirgwin v. Chirgwin, 26 Cal.App.2d 506 [ 79 P.2d 772 ], that a wife may not enforce a support order obtained by her in the state of her domicile after the rendition of a valid, ex parte, foreign divorce decree in favor of her husband. (See also De Young v. De Young, 27 Cal.2d 521 [ 165 P.2d 457 ] ; Cardinale v. Cardinale, 8 Cal.2d 762 [ 68 P.2d 351 ]; Proper v. Proper, 102 Cal.App.2d 612 [ 228 P.2d 62 ]; Coleman v. Coleman, 92 Cal.App.2d 312 [ 206 P.2d 1093 ]; Patterson v. Patterson, 82 Cal.App.2d 838 [ 187 P.2d 113 ]; Calhoun v. Calhoun, 70 Cal.App.2d 233 [ 160 P.2d 923 ].) The first answer to this contention is that it should have been invoked in the Illinois proceeding and that even if the Nevada decree had been pleaded as a defense in that proceeding and the Illinois court had erroneously failed to recognize it, defendant’s remedy was by appeal and he cannot now attack the Illinois judgment. (Treinies v. Sunshine Min. Co., 308 U.S. 66 , 78 [ 60 S.Ct. 44 , 84 L.Ed. 85 ]; Morris v. Jones, 329 U.S. 545 , 551-552 [ 67 S.Ct. 451 , 91 L.Ed. 488 , 168 A.L.R. 656 ]; see Rest., Judgments § 13.) The second answer is that even if defendant could now attack the Illinois judgment, the recent decision of the United States Supreme Court in Vanderbilt v. Vanderbilt, 354 U.S. 416 [ 77 S.Ct. 1360 , 1 L.Ed.2d 1456 ], demonstrates that his contention is without merit. The husband in the Vanderbilt case secured an ex parte Nevada divorce. Subsequently, the wife brought an action against the husband for support in a New York court. In affirming an award to the wife, the court stated: “In Estin v. Estin . . . this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband’s obligation to provide her support as required in a pre-existing New York separation decree. The factor which distinguishes the present case from Estin is that here the wife’s right to support had not been reduced to judgment prior to the husband’s ex parte divorce. In our opinion this difference is not material on the question before us. Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York to financial support from her husband. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Here, the Nevada divorce court was as powerless to cut off the wife’s support right as it would have

been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court’s jurisdiction.” ( 354 U.S. at 418-419 [77 S.Ct. at 1362-1363].) The court held ‘‘Therefore, the Nevada decree, to the extent it purported to affect the wife’s right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition.” ( 354 U.S. at 419 [77 S.Ct. at 1363]; see also concurring opinion in Armstrong v. Armstrong, 350 U.S. 568 , 575 [ 76 S.Ct. 629 , 100 L.Ed. 705 ].)

In this case, therefore, the Illinois court was not obliged to recognize that part of the Nevada judgment purporting to terminate plaintiff’s right to support under Illinois law, nor are we. Chirgwin v. Chirgwin, supra, 26 Cal.App.2d 506 , is inconsistent with the Vanderbilt case and is therefore disapproved. The other California cases referred to above in connection with defendant’s contention that his obligation to support plaintiff was terminated by the Nevada decree are not in point. The effect on a wife’s right to support of a foreign, ex parte divorce secured by her husband is determined by reference to the law of the state of the wife’s domicile at the time of the divorce, in this case the law of Illinois. (See Estin v. Estin, supra, 334 U.S. at 544, 547 ; Sutton v. Leib, 342 U.S. 402 , 406 [ 72 S.Ct. 398 , 96 L.Ed. 448 ]; Esenwein v. Commonwealth, 325 U.S. 279 , 280-281 [ 65 S.Ct. 1118 , 89 L.Ed. 1608 , 157 A.L.R. 1396 ]; Worthley v. Worthley, supra, 44 Cal.2d at 468 ; Biewend v. Biewend, 17 Cal.2d 108 , 111, 114 [ 109 P.2d 701 , 132 A.L.R, 1264 ]; Vanderbilt v. Vanderbilt, 1 N.Y.2d 342 [ 135 N.E.2d 553 , 557-558]; Morris, Divisible Divorce, 64 Harv.L.Rev. 1287 , 1302.

Illinois was the state of domicile of both defendant and plaintiff when the Illinois action was brought and was the state of plaintiff’s domicile when the judgment was entered. Defendant contends that the judgment was unauthorized by Illinois law, citing Knowlton v. Knowlton, 155 Ill. 158 , 165 [ 39 N.E. 595 ] and two Illinois statutes, (Ill.Rev.Stat. 1953, ch. 40, par. 19 [Jones Ann.Stat. 109.186]; Ill.Rev.Stat. 1953, ch. 68, par. 22 [Jones Ann.Stat. 109.189].) This contention should have been raised in the Illinois proceeding and is res judicata. Moreover, the Illinois law is now settled contrary to defendant’s contention. Speaking of the Knowlton case, the Supreme Court of Illinois said in Pope v. Pope, 2 Ill.2d 152 , 156 [ 117 N.E.2d 65 ]: “It appears . . . that the decision was not based on Illinois law but on a supposed require

ment of the full faith and credit clause which may no longer exist. See Thompson v. Thompson, 226 U.S. 551 [ 33 S.Ct. 129 , 57 L.Ed. 347 ]; Estin v. Estin, 334 U.S. 541 , 546 [ 68 S.Ct. 1213 , 92 L.Ed. 1561 , 1 A.L.R.2d 1412 ], note 4.” It is now definitely established that the supposed full faith and credit requirement on which Knowlton was based does not exist. (Vanderbilt v. Vanderbilt, supra, 354 U.S. 416 [ 77 S.Ct. 1360 ].) Any doubt that under the law of Illinois the right to support survives a foreign ex parte divorce was laid at rest by the Supreme Court of Illinois in the Pope case: “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.” ( 2 Ill.2d at 157 .) “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.” ( 2 Ill.2d at 158 .)

The question next to be considered is whether the Illinois judgment of December 30, 1947, is entitled to recognition in California. Payments past due under an Illinois separate maintenance decree are not subject to modification in Illinois. (Stewart v. Stewart, 1 Ill.App.2d 283 , 286 [ 117 N.E.2d 579 ] and cases there cited.) As to all accrued in-stalments not subject to modification by the court rendering the original order, an order for the payment of money as alimony rendered by a court of competent jurisdiction in one state must be recognized by all other states under the full faith and credit clause of the United States Constitution. (Biewend v. Biewend, supra, 17 Cal.2d at 110-111 and cases cited.) Such an order is also recognized in California as to future payments. (Biewend v. Biewend, supra, 17 Cal.2d at 113 ; Worthley v. Worthley, supra, 44 Cal.2d at 474 .)

The final question concerns the effect to be given the supplemental judgment order of the Illinois court of December 12, 1950. Having acquired jurisdiction of the subject matter and of the parties in the divorce action brought by defendant, the Illinois court retained jurisdiction to modify and enforce its support order. (Karr v. Bust, 217 Ill.App. 555 , 561; Adam v. Saenger, 303 U.S. 59 , 67-68 [ 58 S.Ct. 454 , 82 L.Ed. 649 ]; Michigan Trust Co. v. Ferry, 228 U.S. 346 , 353 [ 33 S.Ct. 550 , 57 L.Ed. 867 ]; Rest., Conflict of Laws, §§ 76, 105.) It

therefore had jurisdiction to enter the supplemental “judgment order” of December 12, 1950, fixing the amount of accrued arrearages. Nevertheless, defendant was entitled to notice of the proceedings culminating in that order, and if no notice was given him, the order is unenforceable. (Griffin v. Griffin, 327 U.S. 220 , 228 [ 66 S.Ct. 556 , 90 L.Ed. 635 ]; Kaufman v. Kaufman, 279 Ill.App. 1 , 4; Cummer v. Cummer, 283 Ill.App. 220 , 235; Worthley v. Worthley, supra, 44 Cal.2d 465 , 469, 471.) Defendant testified and the trial court found that with respeet to the 1950 proceedings defendant was not served with summons or other process and did not appear personally or by counsel. There was no evidence and no finding as to whether service was made upon the attorney who represented defendant in the original action. (See Reynolds v. Reynolds, 21 Cal.2d 580 , 583 [ 134 P.2d 251 ].) Under Illinois law, however, such service would apparently not suffice as notice to defendant. (Cummer v. Cummer, supra, 283 Ill.App. at 235-237 .) Nevertheless, it is obvious that the finding made by the trial court is not a finding that defendant had no notice. The finding is simply that he was not served and that he did not appear. In view of the court’s continuing jurisdiction over defendant in matters relating to modification and enforcement of the support order, the question is not whether he was served or appeared but whether he had notice. Service in a technical sense is not required. Actual notice is sufficient. (See Griffin v. Griffin, supra, 327 U.S. at 228 ; Cummer v. Cummer, supra, 283 Ill.App. at 237 ; see Mullane v. Central Hanover Trust Co., 339 U.S. 306 , 314 et seq. [ 70 S.Ct. 652 , 94 L.Ed. 865 ]; Walker v. City of Hutchinson, supra, 77 S.Ct. at 202.) There is no evidence from which we can determine whether or not defendant had notice. This fact can be ascertained on retrial.

If defendant had no notice of the 1950 proceedings, the “judgment order” of December 12, 1950, is unenforceable, and plaintiff’s rights must be determined under the judgment of December 12, 1947. Recovery for payments due thereunder prior to August 26, 1949, is barred by the five-year statute of limitations found prior to 1953 in subdivision 1 of section 336 of the Code of Civil Procedure. (See Chambers v. Gallagher, 177 Cal. 704 , 708-709 [ 171 P. 931 ].) If defendant had notice of the 1950 proceedings, the “judgment order” of December 12, 1950, is a valid judgment entitled to recognition under the full faith and credit clause of the United States Constitution, and the applicable statute of

limitations is the 10-year statute found in section 337.5 of the Code of Civil Procedure as amended in 1953. (See Mudd v. McColgan, 30 Cal.2d 463 , 468 [ 183 P.2d 10 ].)

The judgment is affirmed insofar as it determines that the Nevada decree terminated the marital status of the parties and is reversed in all other respects for further proceedings in accordance with the views expressed herein.

Gibson, C. J., Shenk, J., Carter, J., Schauer, J., Spence, J., and McComb J., concurred.

Respondent ⅛ petition for a rehearing was denied December 17, 1957, and the judgment was modified to read as printed above.