Chichester v. Chichester

• Decision Date: 16 July 1964
• Citation: 39 Cal.Rptr. 553,228 Cal.App.2d 491
• Court: California Court of Appeals Court of Appeals
• Parties: Nona Larraine CHICHESTER, Plaintiff and Respondent, v. Michael Morris CHICHESTER, Defendant and Appellant. Civ. 289.

Page 553

39 Cal.Rptr. 553

228 Cal.App.2d 491

Nona Larraine CHICHESTER, Plaintiff and Respondent, v. Michael Morris CHICHESTER, Defendant and Appellant.

Civ. 289.

District Court of Appeal, Fifth District, California.

July 16, 1964.

Vizzard, Baker, Sullivan & McFarland, and Allan H. McFarland, Bakersfield, for appellant.

J. Richard Thomas, Bakersfield, for respondent.

RALPH M. BROWN, Justice.

This appeal is taken by defendant-appellant from a pendente lite order entered in an action brought by plaintiff-respondent seeking to have a foreign decree granting to plaintiff a divorce and other relief established as a judgment of this state, which order awards to the plaintiff the temporary custody of a minor child and attorneys' fees, decrees that the foreign decree is entitled to full faith and credit and that the child custody provision of a prior California decree granting a divorce to defendant is null and void. The notice of appeal runs to the entire order but defendant makes no charge of error as to that portion thereof which awards suit money.

The facts pertinent to this opinion may be summarized thusly:

Plaintiff and defendant were wife and husband. One child, Becky Lee Chichester, was born to them on February 25, 1960. They resided in California. About May 22, 1961, plaintiff removed to the State of Alaska taking the minor child with her. Defendant remained in California.

On July 13, 1962, defendant was granted an interlocutory decree of divorce in the Superior Court, Kern County (hereinafter referred to as the California decree). The decree awarded to defendant the custody of the minor child. Plaintiff here, defendant in that action, was personally served in Alaska by substituted service. She did not appear or participate in the California action. That decree has never been modified or vacated in a California court and no appeal therefrom was taken.

Defendant subsequently journeyed to Alaska and about July 27, 1962, removed the minor child to California under authority of the custody provision of the California decree. The child has been in California ever since the physical custody of the appellant, and there is no suggestion of mistreatment in the record.

On August 3, 1962, plaintiff was granted a divorce from defendant in the Superior Court for the State of Alaska, Third District (hereinafter referred to as the Alaska decree), which, by its terms, was an absolute decree forever dissolving the marriage of the parties. Defendant was personally served with process in California by sustituted service. He did not appear or participate in the Alaska action. The Alaska decree has never been modified or vacated, nor did defendant appeal therefrom. That decree provided, among other things, that plaintiff be awarded custody of the minor child.

Plaintiff then, on November 30, 1962, filed this action in the Superior Court of Kern County in California seeking to have the Alaska decree established as a judgment of this state and 'that it be ordered, adjudged and decreed that plaintiff is entitled to the custody, care and control of the minor child of the parties.' Concurrently, an order to show cause issued, directing the defendant to show cause why plaintiff should not be granted custody of the child pending litigation, why defendant should not be ordered to pay child support and suit money as ordered by the Alaska court, and attorney's fees in the pending action. The supportive affidavit, while imperfectly drafted, purports to set forth two bases for an award to plaintiff of temporary custody: (1) the custody provision of the Alaska decree, and (2) the best interests and welfare of the child.

Defendant did not file any responsive affidavits. He appeared in person and by counsel at the show cause hearing. Plaintiff appeared through counsel but was not present.

At the beginning of the hearing plaintiff introduced and there were received in evidence as exhibits exemplified copies of the Alaska proceedings consisting of proof of service on the defendant in California of the summons and complaint, findings of fact and conclusions of law and the decree; also a reporter's transcript of the Alaska default proceedings and two affidavits executed by plaintiff, apparently submitted in lieu of personal testimonial evidence. The record discloses only a terse, parenthetical comment of the reporter that these exhibits were 'received in evidence.' During the course of the hearing plaintiff introduced in evidence the entire original pleading file from the office of the county clerk relating to the California divorce action and a reporter's transcript of the testimonial evidence taken at the default hearing of that action. The record does not disclose an objection on the part of defendant to the introduction of any of these exhibits.

The order pendente lite, entered on March 28, 1963, reads as follows:

'The above entitled matter, coming on regularly to be heard February 4, 1963, J. Richard Thomas by Dustin N. Jameson appearing for the Plaintiff, and Eugene W. McKnight appearing for the defendant, and the Court having considered both oral and documentary evidence, and the matter having been taken under submission, the Court finds that that Certain Interlocutory Decree of Divorce, dated and entered July 13, 1962, by and between MICHAEL M. CHICHESTER, Plaintiff, and NONA L. CHICHESTER, Defendant, No. 83804, pending in the Superior Court of the State of California, in and for the County of Kern, is null and void for lack of jurisdiction as said Interlocutory Decree appertains to the custody of BECKY LEE CHICHESTER, born February 25, 1960; and that the custody of BECKY LEE CHICHESTER during the pendency of this action should be awarded to the Plaintiff, pursuant to that certain Decree of Divorce obtained August 3, 1962 in the Superior Court of Alaska, Third District in an action entitled NONA LARRAINE CHICHESTER, Plaintiff, vs. MICHAEL MORRIS CHICHESTER, Defendant, File No. 62-662, and the Court finds that said Decree of Divorce of the State of Alaska, as afore-said, is entitled to full faith and credit; and, GOOD CAUSE APPEARING THEREFOR,

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

'1. That that certain Interlocutory Decree of Divorce, No. 83804, Superior Court of the State of California in and for the County of Kern, is hereby declared null and void as the same appertains to the custody of BECKY LEE CHICHESTER, born February 25, 1960.

'2. That the custody of BECKY LEE CHICHESTER, born February 25, 1960, during the pendency of this action, is hereby awarded to the Plaintiff, Nona Larraine Chichester, pursuant to that certain Decree of Divorce in Cause No. 62-662 entitled Nona Larraine Chichester vs. Michael Morris Chichester, Superior Court for the State of Alaska, Third District, obtained August 3, 1962, and the Court hereby determines that said Decree of Divorce of the State of Alaska is entitled to full faith and credit.

'3. Defendant is hereby required to pay to J. RICHARD THOMAS, attorney for Plaintiff herein, the sum of One Hundred Dollars ($100.00), as and for attorney's fees, with leave to said attorney to apply for additional fees in the event that this matter should proceed to trial as a contested matter.'

Thereafter, on May 20, 1963, the trial court made its further order providing, in pertinent part, that the temporary custody award to plaintiff be stayed and custody of the child remain in defendant pending final determination of this appeal.

The controlling questions on this appeal are whether or not the trial court exceeded its jurisdiction in determining, at a show cause hearing for temporary custody, the validity or invalidity of the Alaska decree and the custodial provision of the California decree, and erred in awarding to plaintiff temporary custody of the child 'pursuant to' the Alaska decree. We have concluded, for reasons which appear hereinafter, that the order is erroneous.

The essence of the action as brought and pleaded by the plaintiff is not the enforcement of the Alaska decree, but that the Alaska decree be established as, and made a judgment of, a California court, entitled to legal and estraordinary enforcement remedies of execution, judgment lien by abstract recorded, or contempt proceedings as are available to an original California decree containing custody and child support provisions. (See Bruton v. Tearle, 7 Cal.2d 48, 59 P.2d 953, 106 A.L.R. 580.) She has thus submitted herself to the jurisdiction of a California court, and by seeking a custodial order by separate statement in the prayer of the complaint, has invoked the jurisdiction of that court in respect to the issue of child custody. The court thus has jurisdiction over both parents and the child is now a resident and inhabitant of this state.

Jurisdiction over the custody issue present, the court had power to make a temporary custodial order. Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295, and Hood v. Hood, 211 Cal.App.2d 332, 27 Cal.Rptr. 47, involved actions to establish foreign alimony judgments in California. Although Hudson was primarily concerned with the concept of the divisible divorce, the Supreme Court indicated that temporary alimony and attorneys' fees were available to the plaintiff to maintain her action for permanent alimony under the general equity powers of the court. In Hood, the appellate court was squarely faced with the contention that the trial court lacked jurisdiction to award alimony pendente lite, statutory authority therefor absent. It was held that the court had equity power, independent of statute, to award alimony pendente lite.

In Oravec v. Superior Court, 115 Cal.App.2d 581, 252 P.2d 364, the wife had been granted a divorce in another state, the decree providing that she have custody of the minor children and ordering the husband to make payments for their support. A subsequent action brought by the wife in the California court to establish the foreign decree as a...