Bryan v. Bryan

On August 2, 1966, Boland Howard Bryan filed notice of appeal from the trial court's order of July 28, 1966, granting the application of his former wife, Joanne Bryan, for a writ of execution, and denying his motion to dismiss her application. On October 27 he filed notice of appeal from the trial court’s order of October 6, 1966, denying his motion for various orders including stay of execution. On October 19, 1966, he was served with a marshal’s notice of sale of his residence and on October 31, 1966, he petitioned for a writ of supersedeas which this court issued on November 3, 1966, pending hearing on the consolidated appeals.

The facts as we are able to reconstruct them from the record on appeal disclose that Boland and Joanne Bryan were married in 1946 and that in October 1953, Boland filed for divorce in Kern County, California. On November 13, 1953, the court entered its order granting Joanne custody and permission to move with the three minor children of the parties to Colorado. Boland was ordered to pay $75 per month pendente lite child support for nine months of each year and was granted visitation privileges, at his expense, for the three summer months. One month following the entry of the pendente lite order, and prior to the hearing on the interlocutory decree, Joanne and the children moved with Boland’s knowledge and consent to Meeker, Colorado, where they at first resided with her mother.

On February 28, 1955, Joanne, proceeding without personal service on Boland, obtained an ex parte divorce in Colorado which granted her custody of the children but made no mention of child support. No interlocutory judgment of divorce was entered and no subsequent order was made in the California action until October 5, 1965, when Joanne applied for and obtained an order issuing a writ of execution. This order was based upon a computation of

Roland’s declaration stated that he stopped making child support payments in February 1954, because Joanne would not tell him where the children resided and refused him summer visitation. When he learned of the Colorado divorce in 1955, Roland was informed and believed that his support obligation was thereby terminated. He understood that Joanne had remarried and that her new husband was taking good care of the children. He stated further that he is now making child support payments under an order for reciprocal support entered February 16, 1955, but that he has no ability to pay arrearages of approximately $8,000. He has three children by a presently existing marriage to support, and his wife drives a school bus to supplement the family income.

Joanne’s affidavit in opposition stated that Roland made only one payment for child support in January 1954, although he knew that the family had a “General Delivery” address in Meeker, Colorado, where they lived with her mother. Thereafter, he failed to answer Joanne’s letters and his mother, with whom Joanne continued to correspond, refused to disclose his address. When Joanne decided to obtain a Colorado divorce, she did not know Roland’s current address and could not obtain personal service on him, hence the Colorado court was without jurisdiction to award child support. Until she was contacted by Roland’s present wife in the fall of 1964, Joanne did not know of his whereabouts or she would have taken earlier action to enforce child support payments. Finally, despite the fact that Roland’s mother, with whom Joanne continued to correspond until her death in recent years, always had Joanne’s current address, never did Roland contact Joanne or make any effort to visit their children.

On April' 18, 1966, the court, proceeding on these affidavits, declared that the' pendente 1-it'e ■ order was not ipso facto terminated by' the' ex parte Colorado divorce but quashed the writ of execution without prejudice and re

Appellant first contends that the California court lacked jurisdiction to entertain his former wife’s motion for a writ because she failed to obtain personal service upon him, but this contention is without merit. The statutory law of California imposes upon each father the primary liability to support his minor children (Civ. Code, §§ 196, 242), and the court may, either during the pendency of an action for divorce (Civ. Code, § 137.2) or in an action separate and distinct from any divorce litigation (Civ. Code, § 137.1) enter an order, enforceable by execution, for the father to make support payments for his minor children. The pendente lite order entered in the instant ad ion providing for custody and child support was valid and proper. There is no claim that the action for divorce or any portion of the proceedings initiated by appellant on October 15, 1953, has been dismissed. No action was taken in that divorce proceeding until Joanne’s recent effort to enforce the pendente lite order as to current payments and arrearages. The only intervening event was the final decree of divorce obtained by Joanne in Colorado in 1955, which terminated the marriage and determined custody, but made no mention of child support. Joanne having defaulted and moved to Colorado, had no alternative when the California action was not pursued to judgment, but to institute a separate action to obtain a final divorce decree in the state of her residence. The court, in an ex parte divorce, however, has no jurisdiction to award the wife a money judgment for child support from a husband over whom it has no personal jurisdiction. “The concept of divisible divorce is now well established. [Citations.] Under this concept an ex parte divorce decree affects the marital status of the parties but not their property rights. Divorce proceedings in which the court has not obtained personal jurisdiction over both parties may not prejudice the property rights of the absent spouse. [Citations.] ” (Mehrstein v. Mehrstein, 245 Cal. App. 2d 646 , 649 [ 54 Cal.Rptr. 65 ].) Since the Colorado court was without jurisdiction to adjudicate and order the absent husband to make child support payments, it follows that its decree did not ipso facto terminate the California order for child support (Hudson v. Hudson, 52 Cal.2d 735 , 740, 743 [ 344 P.2d 295 ] ; Campbell v. Campbell, 107 Cal.App.2d 732 , 734-736 [ 238 P.2d 81 ] ; Vanderbilt v. Vanderbilt, 354 U.S. 416 [ 1 L.Ed.2d 1456 , 77 S.Ct. 1360 ]).

Finally, the trial court committed no abuse of discretion in ordering the writ to issue as requested by Joanne upon a prima facie showing. The oral motion made by Roland’s counsel upon special appearance was properly denied for reasons hereinabove set forth. Although he had filed no formal notice of opposition to the issuance of the writ upon the merits and no motion to quash, Roland’s counsel then attempted to oppose respondent’s application for the writ on the merits (see fn. 3). The court had no jurisdiction to consider a motion thus improperly urged (Harabedian v. Superior Court, 195 Cal.App.2d 26 , 32 [ 15 Cal.Rptr. 420 , 89 A.L.R.2d 994 ]; Harris v. Board of Education, 152 Cal.App.2d 677 , 682 [ 313 P.2d 212 ] ; Code Civ. Proc., § 1010.) The issuance of a writ of execution ancillary to a divorce proceeding is discretionary, but discretion may be exercised only when a counter-showing upon evidence properly prepared is submitted to the court. (Messenger v. Messenger, 46 Cal.2d 619 , 630 [ 297 P.2d 988 ]; Civil Code, § 139.)

As to the second appeal, aside from all the procedural, and jurisdictional problems involved, we note that Roland in his motion once again asserted the same legal issues, apparently in an excess of zeal to delay further action until an appellate determination on the issues could be obtained. The trial court properly denied his request for further orders, which was filed on September 22, after his appeal from the July 28 order, and based upon the same grounds already determined adversely to Roland in the proper hearing.

The orders of the trial court issued July 28, 1966, and October 6, 1966, are hereby affirmed.

Wood, P. J., and Lillie, J., concurred.