Forslund v. Forslund

• Decision Date: 12 March 1964
• Citation: 37 Cal.Rptr. 489,225 Cal.App.2d 476
• Parties: Orvel A. FORSLUND, Plaintiff and Appellant, v. Eleanor FORSLUND, Defendant and Respondent. Civ. 21185.
• Court: California Court of Appeals Court of Appeals

Page 489

37 Cal.Rptr. 489

225 Cal.App.2d 476

Orvel A. FORSLUND, Plaintiff and Appellant, v. Eleanor FORSLUND, Defendant and Respondent.

Civ. 21185.

District Court of Appeal, First District, Division 1, California.

March 12, 1964.

Adams, Ball & Kraft, San Jose, for appellant.

Newman, Marsh & Furtado, Hayward, for respondent.

MOLINARI, Justice.

This is an appeal by plaintiff father from an order modifying a prior order granting him the custody of two minor children. ¹

Questions Presented

1. Did the court lack jurisdiction to change custody on the ground that the children involved are both domiciled and physically residing in another state?

2. Was the order for modification void as violative of due process on the ground that defendant did not give plaintiff and the minor children proper notice of the proceedings for modification and an opportunity to be heard therein?

3. Did the trial court abuse its discretion in modifying the custody order?

The Record

On April 23, 1957, by its interlocutory decree of divorce, the court below determined that a divorce ought to be granted in an action brought by plaintiff husband against defendant wife. The custody of the three minor children of the parties was not determined in said decree because the children were then wards of the County of Alameda. Thereafter, on July 10, 1961, a final decree of divorce was entered nunc pro tunc as of April 25, 1958. ² On September 7, 1961 the trial court made its order that defendant have the custody of the minor child, Lawrence, and that plaintiff have the custody of the minor children, Sharon and Robert. ³ Subsequently, and on May 3, 1962, an order to show cause was issued in the court below, upon the affidavit of defendant, ordering plaintiff to appear on May 29, 1962 to show cause why the order of September 7, 1961 should not be modified as requested in said affidavit. In said affidavit defendant requested that the court make an order granting the custody of all three minor children to her. Copies of said order to show cause and affidavit were mailed on May 7, 1962 to William Berger, an attorney at law; ⁴ to the County Clerk of Alameda County, and to plaintiff at 807 Waverly Street, Palo Alto, California. When the order to show cause came on for hearing on May 29, plaintiff did not appear either in person or by attorney. Defendant was called as a witness, and after testifying that plaintiff had not paid child support for Lawrence, that he had left his residence, and that she did not know his whereabouts, the court observed that it could not make an order changing custody at that time 'on the present state of the record because there is no indication where the children are or the living conditions.' Thereupon, and pursuant to the trial court's suggestion, the matter was referred to the probation department for 'a supplemental report and request that the whereabouts of the plaintiff be ascertained if possible,' and the hearing was continued to June 26, 1962. ⁵ When the matter came on for hearing on June 26 plaintiff was not present nor did he appear by counsel. The court then announced that it had read the supplemental report of the probation officer; and after observing that said report indicated that plaintiff's present whereabouts were not clearly established, that the children were 'apparently' with plaintiff, that plaintiff 'appears not to have complied with the prior Order of the Court,' and that the facts in the probation officer's report 'indicate that the plaintiff is subjecting these children to a rather irregular and poorly controlled living condition,' and that 'it appears to be to the best interest of these two minor children that they be with their mother,' ordered that the September 7, 1961 order be modified so as to award the custody of Sharon and Robert to defendant. A notice of appeal from the said order, made on June 26, 1962 and entered on July 2, 1962, was filed by plaintiff on August 1, 1962.

Jurisdiction of Subject Matter

Plaintiff contends that the California court was without jurisdiction to change custody because the children were both domiciled and physically present in Vermont. It should be here noted that there is nothing in the record to show that the children were in fact physically present or domiciled in Vermont. The only reference in the record before the court below purportedly touching the subject of the residence and domicile of Sharon and Robert appears in the supplemental report of the probation officer. We shall hereinafter particularly discuss the evidentiary effect of this report. However, assuming for our present purposes that its contents are admissible all that it states regarding the subject at hand is that 'The exact whereabouts of the plaintiff and the minors is unknown. His mailing address is P.O. Box 725, Burlington, Vermont.' Such a statement, in our opinion, is insufficient to establish the residence or domicile of said children. Suffice it to say, however, the California court would have jurisdiction to modify the custody award, notwithstanding the children's physical presence and domicile in Vermont, at the time the subject motion to modify was filed and acted upon. Section 138 of the Civil Code provides that 'In actions for divorce or for separate maintenance the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody of such minor children as may seem necessary or proper and may at any time modify or vacate the same.' This section has been held to expressly reserve to the California divorce court jurisdiction to modify its custody awards even though the children later become domiciled in another jurisdiction. (Davis v. Davis, 177 Cal.App.2d 75, 77, 1 Cal.Rptr. 923; Dolgoff v. Dolgoff, 81 Cal.App.2d 146, 148, 183 P.2d 380; Marts v. Marts, 15 Cal.App.2d 224, 225, 59 P.2d 170; In re Kolb, 60 Cal.App. 198, 200-201, 212 P. 645; Maloney v. Maloney, 67 Cal.App.2d 278, 280, 154 P.2d 426; Rude v. Rude, 148 Cal.App.2d 793, 797-798, 307 P.2d 679; Leverett v. Superior Court, 222 A.C.A. 145, 151, 34 Cal.Rptr. 784.) This holding is in accord with that of a majority of the jurisdictions of this country, and is predicated upon the rule that a divorce court, which at the time of entry of its original decree and jurisdiction to make a custody award, retains continuing jurisdiction to modify such custody even though the children are domiciled and actually present in another jurisdiction. (See Davis v. Davis, supra, 177 Cal.App.2d p. 77, 1 Cal.Rptr. 923; Dolgoff v. Dolgoff, supra, 81 Cal.App.2d p. 148, 183 P.2d 380; and see Sampsell v. Superior Court, 32 Cal.2d 763, 778, 197 P.2d 739.)

Jurisdiction of the Person

Plaintiff asserts that the trial court did not acquire jurisdiction over him or the children because neither he nor they were served with a copy of the subject order to show cause. As hereinbefore narrated, the order to show cause was sent by mail to plaintiff's attorney of record, to the county clerk, and to plaintiff at an address in Palo Alto, California. The notice required to be given to the respondent of an application for an order modifying the provisions of an order for child custody or support in a divorce action is that provided for in the Code of Civil Procedure relating to the giving and service of notice of motions in civil actions, i. e., part 2, title 14, chapters 4 and 5 (§§ 1003 to 1008, incl., and 1010 to 1020, incl.). ⁶ (Moore v. Superior Court, 203 Cal. 238, 244, 263 P. 1009; Foy v. Foy, 23 Cal.App.2d 543, 546-547, 73 P.2d 618; see McAuliffe v. Coughlin, 105 Cal. 268, 270, 38 P. 730, and Sturm v. Sturm, 138 Cal.App.2d 25, 28, 291 P.2d 527, to the effect that an order to show cause is simply a notice of motion; and see § 1006.)

We shall first consider the question of the service upon plaintiff. It is well settled that where the custody of a child has been awarded to one parent by a decree of divorce, a subsequent order modifying that decree and awarding the custody of the child to the other parent can only be made after notice to the custodial parent, and an order made without notice is void. (In re Saunders, 76 Cal.App.2d 635, 637, 173 P.2d 818; Landslade v. Lansdale, 173 Cal.App.2d 432, 433, 344 P.2d 622.) If plaintiff was a resident of this state service could be made upon him or his attorney as provided in section 1011. That section provides that '[t]he service may be personal, by delivery to the party or attorney on whom the service is required to be made' or in the several methods and under the circumstances therein specified. It is also well settled that 'delivery' constituting personal service within the meaning of this section may be effected by mailing the notice or paper to be served. (Hunstock v. Estate Development Corp., 22 Cal.2d 205, 211, 138 P.2d 1, 148 A.L.R. 968; Colyear v. Tobriner, 7 Cal.2d 735, 743, 62 P.2d 741, 109 A.L.R. 191; Shearman v. Jorgensen, 106 Cal. 483, 485, 39 P. 863; Heinlen v. Heilbron, 94 Cal. 636, 640, 30 P. 8; § 1012.) Such a service is termed a 'substituted service' and is intended to take the place of and be equivalent in point of law and effect to a personal service. (Heinlen v. Heilbron, supra, 94 Cal. p. 640, 30 P. 8.) The only method of service attempted in the instant case was by mail. In making service by mail there must be a strict compliance with sections 1012, 1013 and 1013a. (Carlon v. Gray, 10 Cal.App.2d 658, 663, 52 P.2d 966; Marsden v. Collins, 23 Cal.App.2d 148, 149, 72 P.2d 247.) Section 1012 provides that 'Service by mail may be made where the person on whom it is to be made resides or has his office at a place where there is a delivery service by mail, or where the person making the service and the person on whom it is to be made reside or have their offices in different places between which there is a regular communication by mail.' (See Marsden v. Collins, supra,...