Lewis v. Lewis

• Citation: 317 P.2d 987,49 Cal.2d 389
• Court: United States State Supreme Court (California)
• Decision Date: 19 November 1957
• Parties: Gertrude LEWIS, Plaintiff and Appellant, v. Ulysses LEWIS, Defendant and Respondent. L. A. 24322.

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317 P.2d 987 49 Cal.2d 389 Gertrude LEWIS, Plaintiff and Appellant,
v.
Ulysses LEWIS, Defendant and Respondent. L. A. 24322. Supreme Court of California, In Bank. Nov. 19, 1957.
As Modified on Denial of Rehearing Dec. 17, 1957.

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[49 Cal.2d 391] Brock, Easton, Fleishman & Rykoff and Robert L. Brock, Hollywood, for appellant.

Sidney A. Cherniss, El Monte, and Louis Miller, Los Angeles, for respondent.

TRAYNOR, Justice.

The parties were husband and wife and were domiciled in Illinois. In 1944, the husband, defendant herein, brought an action for divorce in an Illinois court. The wife, plaintiff herein, answered and crosscomplained for separate maintenance. Defendant answered the cross-complaint. Thereafter, he established his domicile in Nevada and, on August 27, 1947, brought an action for divorce in a court of that state, disclosing the pendency of the Illinois action and giving notice to plaintiff by serving her personally in the state of Illinois. Cf. Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 202-203, 1 L.Ed. 2d 178. She did not appear. The Illinois court sought unsuccessfully to enjoin defendant from prosecuting the Nevada action. On September 30, 1947, the Nevada court entered its judgment granting defendant a default divorce and ordering that the parties were '* * * released from the obligations of the marriage and restored to the status of single person.' ¹ Soon thereafter the divorce action in Illinois came to trial. Defendant did not pursue his complaint or defend against the plaintiff's cross-complaint. On December 30, 1947, the Illinois court entered judgment for plaintiff on her cross-complaint, making permanent its prior temporary order that defendant pay plaintiff $18 a week for her support. By a 'judgment order' entered in the Illinois action on December 12, 1950, the Illinois court found defendant in default on the weekly payments in the sum of $3,078. Defendant remarried shortly after entry of the Nevada decree and is now a resident of California. According to his own testimony he has made no payments to plaintiff since October or November of 1947. Plaintiff resides in Illinois and has not remarried.

[49 Cal.2d 392] Plaintiff brought this action to establish the Illinois judgment of December 30, 1947 and the subsequent 'judgment order' of December 12, 1950 as judgments in this state and to recover the amounts unpaid thereunder. Defendant cross-complained to establish the validity of the Nevada decree. The trial court entered judgment for defendant, concluding that the Nevada decree terminated his obligation to support plaintiff and that the Illinois judgment are '* * * invalid and unenforceable as against defendant * * * and are not entitled to recognition in this court or in this State.' Plaintiff appeals.

Plaintiff contends that the Illinois court had jurisdiction to adjudicate her right to support and that the Illinois judgment of December 30, 1947, and the Illinois 'judgment order' of December 12, 1950 are entitled

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to recognition in this state under the full faith and credit clause of the United States Constitution. U.S.Const. art. IV, § 1; 28 U.S.C. § 1738. Defendant contends that the Nevada decree terminated the marriage and plaintiff's right to support and left the Illinois court without a 'res' upon which to act and that the Illinois judgment and 'judgment order' were therefore entered without jurisdiction and are not entitled to recognition in this state. He also contends that even if the 1947 judgment is a valid adjudication of his obligation to support plaintiff, the 1950 'judgment order' is void because he was not given notice of the proceedings resulting in that order, and that recovery under the 1947 judgment for payments that became due more than five years before August 26, 1954, the date of the commencement of this action, is barred by the five-year limitation on actions on judgments found prior to 1953 in subdivision 1 of section 336 of the California Code of Civil Procedure. ² Plaintiff agrees that if the 1950 'judgment order' is void, recovery of the payments due prior to August 26, 1949 is barred as defendant contends.

Defendant acknowledge the settled rule that when a wife has secured a judgment of separate maintenance in the state of her domicile, her right to support thereunder will survive a subsequent valid, ex parte, foreign decree of divorce secured by her husband if the law of her domicile so provides. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Worthley v. Worthley, 44 Cal.2d 465, 283 [49 Cal.2d 393] P.2d 19; Pope v. Pope, 2 Ill.2d 152, 117 N.E.2d 65. He contends, however relying on Chirgwin v. Chirgwin, 26 Cal.App.2d 506, 79 P.2d 772, that a wife may not enforce a support order obtained by her in the state of her domicile after the rendition of a valid, ex parte, foreign divorce decree in favor of her husband. See also De Young v. De Young, 27 Cal.2d 521, 165 P.2d 457; Cardinale v. Cardinale, 8 Cal.2d 762, 68 P.2d 351; Proper v. Proper, 102 Cal.App.2d 612, 228 P.2d 62; Coleman v. Coleman, 92 Cal.App. 2d 312, 206 P.2d 1093; Patterson v. Patterson, 82 Cal.App.2d 838, 187 P.2d 113; Calhoun v. Calhoun, 70 Cal.App.2d 233, 160 P.2d 923. The first answer to this contention is that it should have been invoked in the Illinois proceeding and that even if the Nevada decree had been pleaded as a defense in that proceeding and the Illinois court had erroneously failed to recognize it, defendant's remedy was by appeal and he cannot now attack the Illinois judgment. Trinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 84 L.Ed. 85; Morris v. Jones, 329 U.S. 545, 551-552, 67 S.Ct. 451, 91 L.Ed. 488; see Rest., Judgments § 13. The second answer is that even if defendant could now attack the Illinois judgment, the recent decision of the United States Supreme Court in Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360,...