Cummings v. Cummings

The first cause of action set up in the complaint is one to recover on a judgment of the supreme court of the state of New York granting to the wife $65 per week for the support of herself and her two children. And appellant sets out four errors in regard thereto which he claims entitle him to a reversal.

It is first contended that “plaintiff’s complaint does not state facts sufficient to constitute a cause of action, as all material allegations of the complaint are based upon information and belief and further that paragraphs IX and X of the first cause of action of the complaint are not sufficient allegations of the judgment and entry thereof.” A more direct statement of appellant’s contention would be that

Appellant by motion sought permission of the trial court to file a supplemental answer, wherein it was alleged that plaintiff had been paid $2,275 which should have been applied on the judgment, and also that the parties executed a contract subsequent to the filing of the original answer whereby the New York judgment was settled. The law and motion department of the trial court, Judge B. Rey Sehauer presiding, granted the motion upon the conditions that defendant pay plaintiff $500 and that he submit to the taking of his deposition within sixty days. Appellant’s second con

Prior to the time this order was made the defendant’s deposition had been taken; in this deposition he admitted virtually every allegation of the complaint and' revealed that two weeks prior thereto, when he knew he was to be examined, he disposed of his property in California, taking the proceeds in. the sum of $16,500 to the state of Arizona, “to put it in a safe place.” The plaintiff in opposition to defendant’s motion set forth the above facts and also filed an affidavit setting forth the fact that plaintiff and the two children of the parties were in destitute circumstances and also the necessity for immediate relief. It pointed out also that plaintiff’s case was ready for trial, but that the injection of the new issues would delay the trial and further that it would be necessary to have the plaintiff present at the trial to meet the new issues in case defendant’s motion was granted. Such a motion is addressed to the sound legal discretion of the court. (Jacob v. Lorenz, 98 Cal. 332 [ 33 Pac. 119 ]; Greenwood v. Adams, 80 Cal. 74 [ 21 Pac. 1134 ].) In granting an application to file a supplemental answer, the court may impose such terms as are just and proper. And such an order will not be disturbed in the absence of abuse. (Merced Bank v. Price, 9 Cal. App. 177 [ 98 Pac. 383 ]; Greenwood v. Adams, supra.) We are of the opinion that under the circumstances there was no abuse of discretion.

After the entry of the above ordey the plaintiff filed a .supplemental complaint alleging merely the accrual of additional sums from the time of the commencement of the action. Without complying with the court’s order the defendant filed an answer to the supplemental complaint in which he incorporated the alleged defenses referred to in his motion for permission to file an amended answer. The reporter’s transcript shows that the day before the trial defendant’s counsel sought a stipulation from plaintiff to withdraw said defenses on the ground that he was not prepared to prove said defenses. At the beginning of the trial there was a running argument as to whether this dismissal should be with or without prejudice and the attorney for defendant stated to the court that he was not ready for trial on the defenses above referred to. Thereupon the plaintiff

Appellant’s fourth contention is that the evidence of the New York judgment was not sufficient. It would serve no useful purpose to set out the evidence herein. It is sufficient to say that the judgment showed on its face that the New York court had jurisdiction. Appellant’s con

Appellant states his fifth contention as follows: “That the decision is against the law as that part of the judgment which was based upon plaintiff’s second cause of action is against the law, and the complaint on plaintiff’s second cause of action does not state facts sufficient to constitute a cause of action.” This is a vague and indefinite statement of an alleged error and some explanation is necessary. Plain-. tiff’s second cause of action was one for separate maintenance for herself and two children against the defendant, and, among other things, the complaint sets forth that the defendant is a resident of California, and has property in this state, that defendant is a vaudeville performer and is constantly traveling, that he is rarely in any town more than a week and that he resides in hotels, that his earning capacity is from $200 to $250 per week—more than sufficient to pay weekly installments of alimony of $65; it repeats the recitals as to the New York judgment by reference to count one and states that defendant has ample means to pay all sums accrued thereon to date, but that he openly states that he refuses to apply any of his property to the payment of the New York judgment and that he refuses wilfully and openly to obey the mandate of the said judgment, that the alimony herein sought is for the maintenance and support of plaintiff as wife and of two children of the parties aged four and six respectively, and that they are financially distressed and in dire need of financial assistance, depending upon charity for the necessaries of life—all as a result of defendant’s failure and neglect, that there is no way of obtaining relief in New York and that there is no adequate relief by repeated suits throughout the several states; that at the time of the commencement of the action ‘defendant had an interest in real property in California; that during its pendency he had disposed of the property and removed the proceeds to the state of Arizona with the intent of depriving the courts of this state of the means of enforcing the judgment, and that the

Appellant’s contention, stated in his own language as it appears both in his opening brief and in his reply brief, is as follows: “Under the full faith and credit clause of the Federal Constitution (article IV, section 1), the courts of one State must enforce a judgment for alimony rendered in another State for a definite sum, but are not bound to enforce the judgment so far as it applies to future payments. Sistare v. Sistare, 218 U. S. 1 [20 Ann. Cas. 1061, 28 L. R. A. (N. S.) 1068 , 54 L. Ed. 905 , 30 Sup. Ct. Rep. 682 , see, also, Rose’s U. S. Notes]; McCullough v. McCullough, 203 Mich. 288 [ 168 N. W. 929 ]; Levy v. Dockendorff, 177 App. Div. 249 [ 163 N. Y. Supp. 435 ]; Richards v. Richards, 87 Misc. Rep. 134 [ 149 N. Y. Supp. 1028 ]; Campbell v. Campbell, 28 Okl. 838 [ 115 Pac. 1111 ].” From this premise he argues that because our state courts are not bound to enforce the judgment of our sister state so far as it applies to future payments, therefore our courts are bound not to enforce it. His premise is good, but his logic is bad, and it leads him into a position which is untenable. This is especially so in California, where our supreme court has said: “There is, however, no possible consideration of public policy which could be suggested in support of precluding a non-resident wife . . . from invoking the aid of our courts to compel support from her husband who is a bona fide resident of the state.” (Hiner v. Hiner, 153 Cal. 254 [ 94 Pac. 1044 ].) "While the question seems to be a new one in this state, yet there is respectable authority in other states to support the doctrine that a judgment for alimony of a sister state may be enforced in the same manner that it could have been enforced if originally obtained here. (Fan

This is the only question raised by appellant against the plaintiff’s second cause of action and it is without merit. The second count of plaintiff’s complaint seems to state a cause of action for separate maintenance under our California laws regardless of the New York judgment. That judgment is evidentiary and incidental merely, and unnecessary even, to the second cause of action. At least appellant does not call our attention to any failure of the second count to state a cause of action other than the federal question above referred to, and it is not the duty of an appellate court to search the record for errors. upon which to grant a reversal of a judgment of the trial court. The facts alleged and proved entitled the plaintiff to equitable relief and the relief granted seems appropriate. The trial court, in an obvious effort to protect defendant in case of subsequent modification of the New York decree, required defendant to pay future installments only so long as the New York decree remains unchanged. If the New York court modifies its decree the judgment of the trial court grants permission to apply for a similar modification. This safeguard was unnecessary, but as it was wholly in favor of defendant we do not see how he may well complain of it.

Judgment and order affirmed.

Houser, Acting P. J., and York, J., concurred.

All the Justices present concurred.