Engle v. Superior Court In and For San Joaquin County
| Decision Date | 20 March 1956 |
| Citation | 140 Cal.App.2d 71,294 P.2d 1026 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Clair ENGLE, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN JOAQUIN, Respondent. Civ. 8939. |
Edmund M. Moor, Red Bluff, Daniel S. Carlton, Redding, for petitioner.
Blewett, Blewett, Macey & Garretson, Stockton, for real party in interest.
Petitioner seeks a writ of prohibition to restrain the Superior Court of San Joaquin County from taking any further proceedings in an action entitled Hazel Engle v. Clair Engle until the final determination of a modification proceeding now pending between the same parties in the Circuit Court of the Sixth Judicial Circuit of the State Clair Engle and Hazel Engle were married writ and stay order.
It appears from the record that petitioner Clair Enbgle and Hazel Engle were married in California in 1933. In 1947 Hazel Engle filed an action for divorce against petitioner in the State of Florida and a decree of divorce was entered on October 2, 1947, which decree included the following order: 'It is further ordered, adjudged, and decreed that the agreement entered into by and between the parties hereto, introduced into evidence as Plaintiffs' Exhibit #2, be, and the same is hereby ratified, approved and confirmed by the Court, attached hereto and made a part hereof.'
The agreement which was executed on August 12, 1947, prior to filing of the complaint for divorce, provided for a monthly payment of $300 a month until the minor child of the marriage should reach her majority, at which time the payment would be modified to some mutually agreeable amount. Said agreement provided further that 'In the event the parties cannot mutually agree upon the amount to be paid for the support and maintenance of said Wife, then, the Wife shall be entitled to prosecute any legal remedies open to her for that purpose only.'
The parties further provided that in the event of divorce 'this agreement may be made a part of said decree whether incorporated therein or adopted by reference.' A copy of the agreement is on file with the Florida court which granted the decree.
In 1951 Hazel Engle returned to California and established residence. In 1954, after the minor child reached her majority, Clair Engle reduced the payment to $100 per month. Thereafter Hazel Engle filed suit in the Superior Court of San Joaquin County praying that the court award her a fair and reasonable amount for her care and support. Her amended complaint alleged the making of said agreement and that it had never been revoked. It also alleged the granting of the decree of divorce in Florida and the reduction by petitioner of the support payments to her from $300 per month to $100 per month upon the minor child's reaching the age of majority. The said complaint alleged further that the sum of $100 per month was wholly insufficient for her support, that petitioner's salary as Congressman had increased and that petitioner was well able to pay the sum of $500 per month for her care, support, needs and medical attention.
Petitioner moved the respondent Superior Court to dismiss said action upon the stated ground that said court had no jurisdiction over the subject of said action and had no power or authority to modify the term of the property settlement agreement referred to in said amended complaint. Petitioner at the same time filed a demurrer to said amended complaint upon the grounds that respondent court had no jurisdiction over the subject of the action and that said complaint failed to state a cause of action. Respondent court denied petitioner's motion to dismiss and overruled his demurrer to the amended complaint. Thereafter, on July 8, 1955, petitioner sought modification of the support decree in the Florida court which granted the decree. After taking this step, petitioner again sought dismissal on the ground of lack of jurisdiction, or, in the alternative, a stay of proceedings until the Florida court determined the modification proceedings pending before it. This was denied and petitioner then applied to this court for a writ of prohibition and in the alternative a writ of mandate.
Petitioner's first contention is that the agreement was merged in the Florida decree and no independent action remains thereon.
The agreement upon which the complaint is based was entered into before the divorce action was commenced. It provided for the payment of $300 per month for the support of the wife and minor child until the child should reach the age of majority, at which time the amount would be reduced to some mutually agreeable amount. It then went on to provide that if the parties could not agree then 'the wife shall be entitled to prosecute any legal remedies open to her.' The agreement further provided that in the event of a divorce 'this agreement may be made part of said decree.' The divorce was granted and the decree provided that the 'agreement is ratified, approved and confirmed.'
Petitioner argues that the agreement was merged in the decree and that no cause of action can be brought on the agreement. We think that in the instant proceeding it makes little difference whether the agreement was or was not merged in the decree because the right which the wife is here seeking to enforce does not involve a modification of the decree but it is a right given to her by the agreement which was ratified and approved by the decree. It is to be noted that the decree, after ratifying and approving the agreement, provided that it retained jurisdiction for further order pertaining to the custody and support of the minor child but there is nothing in the decree which takes away the right given to the wife 'to prosecute any legal remedies open to her' when, after the minor child should reach the age of majority, the parties were unable to agree.
But even if we assume that, as argued by petitioner, the agreement was nerged in the Florida decree, we are unable to agree with petitioner's contention that the courts of California have no jurisdiction in the instant action commenced by the wife, for all that the wife is here seeking to do is enforce the right given to her by the contract. The Florida court in its decree did not order petitioner to make any payments to the wife, but merely approved the agreement. While the decree stated that the court retained jurisdiction to make further orders as to the custody of the minor child, there was nothing in the decree which prevented the wife from prosecuting any legal remedies open to her under the contract after the minor child reached the age of majority.
Petitioner contends that only the Florida court can determine the question as to what amount the wife is now entitled to receive under the agreement and decree, the minor child having reached the age of majority.
Petitioner states that property settlement agreements and their construction and effect must be interpreted in the light of the law of the state in which they are executed. He quotes the following from Hutchinson v. Hutchinson, 48 Cal.App.2d 12, at page 18, 119 P.2d 214, at page 217:
Petitioner then states that the Florida law provided that the jurisdiction of the Florida circuit courts, for the purpose of modifying Florida divorce decree and property settlement agreements for such modification purposes, is to be exclusive, and quotes from section 65.15, F.S.A., as follows:
'* * * and it shall be unlawful to commence, or cause to be commenced as party, or attorney, or agent, or otherwise, in behalf of either party in any court any action or proceeding otherwise than as herein provided, nor shall any court have jurisdiction to entertain any action or proceeding otherwise than as herein provided to enforce the recovery of separate support, maintenance, or alimony otherwise than pursuant to such order or judgment. * * *
'This section is declaratory of existing public policy and laws of this state, which is hereby affirmed and confirmed in conformance with the provisions hereof * * *.'
Even if it be conceded that the only cause of action is on the decree, we do not believe that the jurisdiction of the Florida court is exclusive for the Florida statute purporting to give exclusive jurisdiction in the Florida courts is not binding upon the California courts. Section 617 of Restatement of Conflict of Laws states:
'An action can be maintained on a foreign cause of action although by the law of the state which created the right, it is required that suit shall not be brought outside the state.'
That this is true is clearly indicated by the decision of the United States Supreme Court in the case of People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, which in some respects bears a striking similarity to the instant case. The Halveys were married in New York in 1937 and lived together in New York until 1944. In 1938 a son was born. Maritial troubles developed in 1944. Mrs. Halvey went to Florida and established residence there. In 1945 she instituted a suit for divorce and a decree was granted awarding her custody of the child. The day before the decree was entered Mr. Halvey took the child back to New York without Mrs. Halvey's knowledge or approval. Mrs. Halvey returned to New York and commenced a habeas corpus proceeding in the New York...
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