Forster v. Superior Court

• Decision Date: 10 December 1992
• Docket Number: No. B068596,B068596
• Citation: 14 Cal.Rptr.2d 258,11 Cal.App.4th 782
• Court: California Court of Appeals Court of Appeals
• Parties: Jerome F. FORSTER, Petitioner, v. SUPERIOR COURT of San Luis Obispo County, Respondent. Judith S. FORSTER, Real Party in Interest.

Page 258

14 Cal.Rptr.2d 258 11 Cal.App.4th 782 Jerome F. FORSTER, Petitioner,
v.
SUPERIOR COURT of San Luis Obispo County, Respondent.
Judith S. FORSTER, Real Party in Interest. No. B068596. Court of Appeal, Second District, Division 6, California. Dec. 10, 1992.

Page 259

[11 Cal.App.4th 784] Damrell, Nelson, Schrimp, Pallios & Ladine and Roger M. Schrimp and Shawn M. Britton, Modesto, for petitioner.

No appearance for respondent.

Chern, Brenneman & Garcia and Gertrude D. Chern, Santa Maria, for real party in interest.

STEVEN J. STONE, Presiding Justice.

Here we hold that the San Luis Obispo Superior Court had a mandatory duty to transfer wife's action for legal separation to Amador County, the county of husband's residence, upon his timely motion pursuant to Code of Civil Procedure section 396b, subdivision (a). ¹ We order a peremptory writ of mandate to issue vacating the July 17, 1992 order of respondent court and commanding respondent court to issue an order transferring the San Luis Obispo County action to Amador County.

PROCEDURAL HISTORY

Judith S. Forster (Wife) and Jerome F. Forster (Husband) were married in November 1988 and resided in Amador County during their entire three-year marriage. Husband continues to live in Amador County. Wife left Amador County on May 7, 1992, and moved to San Luis Obispo County. She filed a petition for legal separation in San Luis Obispo County on May 11, 1992, acknowledging in the petition that the date of separation was May 7, 1992. [11 Cal.App.4th 785] She also sought restraining orders against Husband. Before otherwise appearing in the action, Husband moved for transfer of the action to Amador County, the county of his residence, pursuant to section 396b, subdivision (a). ²

Wife opposed the motion on grounds that she could not obtain a fair hearing in Amador County. She declared that she had to wait until her husband was away to flee the family home and moved from Amador County in part for personal protection. When her husband tried to force her back by telephoning her, he said that if she decided to come back, she had better look over her shoulder for the rest of her life. Wife declared that Husband used to live in San Luis Obispo and still had family there whom he visited and was able both financially and physically to attend any court matters there. She stated that she had a limited income, could not afford to travel to Amador, nor to house herself once there, and knew only one attorney in town--the one representing her husband.

The court denied Husband's motion for transfer July 17, 1992, stating that "I believe

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the law is that the residence of either party is appropriate to file for legal separation. Based thereon, since I conclude the petitioner sufficiently alleges her residence in this county, the motion for change of venue is denied." Husband filed for writ of mandate in this court which was denied. The California Supreme Court ordered us to look again. We ordered a stay of proceedings in San Luis Obispo pending determination of the instant writ. DISCUSSION

Husband asserts that the trial court erred in focusing upon whether Wife did or did not meet a residency requirement for purposes of filing a petition for legal separation. He is correct. Both the trial court and Wife appear to have confused the concepts of residency for purposes of filing the petition and venue, the proper place for trial of the action. There is no residency requirement for filing a petition for legal separation. (Hiner v. Hiner (1908) 153 Cal. 254, 260, 94 P. 1044; 11 Witkin, Summary of Cal.Law[11 Cal.App.4th 786] (9th ed. 1990) Husband and Wife, § 324(5), p. 361; 1 Adams & Sevitch, Cal.Family Law Practice (8th ed. 1992) § K.26, p. K-15; Hogoboom & King, Cal.Practice Guide: Family Law 1 (1992) § 3:48, p 3-35.) There is a residency requirement for dissolution of marriage: one of the parties must have been a resident of the state for six months and the county in which the petition is filed for three months preceding the filing. (Civ.Code, § 4530, subd. (a).) Where one of the parties files for legal separation because at the time of commencement of the proceeding neither party has complied with the residence requirements, either party may, upon complying with these requirements, amend his or her petition or responsive pleading in such proceeding to request a dissolution of marriage. (Civ.Code, § 4530, subd. (b).)

Wife did not file a petition for dissolution in San Luis Obispo County because she did not meet the residence requirement at the time she commenced the proceedings for legal separation. ³ She intended to amend her petition to request dissolution of marriage once she met the residency requirement.

The Family Law Act under which Wife's action for legal separation is brought (Civ.Code, § 4000 et seq.) does not contain rules...