Crocker v. Crocker
| Citation | 446 P.2d 226,103 Ariz. 497 |
| Decision Date | 25 October 1968 |
| Docket Number | No. 9279--PR,9279--PR |
| Parties | Oliver B. CROCKER, Appellant (Respondent), v. Dorothy M. CROCKER, Appellee (Petitioner). |
| Court | Arizona Supreme Court |
Herbert B. Finn, Phoenix, for appellant-respondent.
Powers & Rehnquist, Phoenix, for appellee-petitioner.
This case is before us on the petition of Oliver Crocker (hereinafter defendant), to review the decision of the Arizona Court of Appeals in the case of Crocker v. Crocker, 7 Ariz.App. 303, 438 P.2d 772 (1968).
Dorothy M. Crocker (hereinafter plaintiff), commenced a divorce action against defendant on December 26, 1963, in the Superior Court of California. The complaint prayed for divorce, a division of the community property of the parties, support for plaintiff, and for plaintiff's attorney's fees.
Pursuant to Rules 412 and 413 of the California Code of Civil Procedure defendant was served by publication and personally served in Arizona with a copy of the complaint and summons. Defendant failed to appear or answer in the California action and his default was entered on May 7, 1964. On May 13, 1964 an interlocutory decree of divorce was rendered awarding plaintiff a divorce from defendant, awarding her certain community property, ordering defendant to pay certain community debts, and awarding plaintiff monthly alimony support and attorney's fees. A final judgment of divorce was entered on August 6, 1965.
Plaintiff had the decree reduced to a money judgment and brought suit on it in the Superior Court of Arizona. Defendant answered the complaint by denying the validity of the California judgment alleging that it was void and unenforceable for lack of jurisdiction. Plaintiff then moved for summary judgment and her motion was granted.
The question before us is whether the summary judgment was properly granted. The judgment was proper if the pleadings, depositions and affidavits show that there was no genuine issue as to any material fact and that plaintiff was entitled to a judgment as a matter of law. Rule 56(c) Arizona Rules of Civil Procedure, 16 A.R.S. For the reasons which follow we hold that there was no genuine issue as to a material fact and summary judgment was properly granted.
Section 417 of the California Code of Civil Procedure provides:
'Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this state (a) at the time of the commencement of the action, or (b) At the time that the cause of action arose, or (c) at the time of service.' (Emphasis supplied.)
The statute was held to comply with due process requirements in the case of Owens v. Superior Court of Los Angeles County, 52 Cal.2d 822, 345 P.2d 921, 78 A.L.R.2d 388 (1959).
The California court, in its Interlocutory Judgment of Divorce, made the following finding of fact:
'(3) That at the time the plaintiff's Cause of Action herein arose * * * the defendant, OLIVER B. CROCKER, was a resident of and domiciled in the State of California within the meaning and intent of Section 417 of the Code of Civil Procedure of the State of California: * * *.'
In support of her motion for summary judgment plaintiff filed an affidavit in which she swore that the acts of cruelty inflicted upon her by defendant--grounds for the California divorce decree--were all committed while plaintiff and defendant resided together in California. In addition, the affidavit of plaintiff's California attorney was filed in which he swore that plaintiff consulted him concerning the divorce on November 29, 1963 and that the divorce complaint was prepared on December 5, 1963. Defendant admitted in his oral deposition that he left California to take up residency in Arizona on December 14, 1963 and that he considered himself a resident of California until that date.
It is clear that the cause of action for divorce arose before plaintiff consulted her attorney and before the complaint was drafted, i.e. prior to December 5, 1963. Therefore, if defendant was a resident of California until December 14, 1963, as he testified in his deposition, he was obviously a resident of California when the cause of action arose. If defendant wished to raise the issue that the California court lacked a proper basis for in personam jurisdiction he had the burden of...
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