Marriage of Gray, In re

• Decision Date: 30 September 1988
• Docket Number: No. A035782,A035782
• Citation: 204 Cal.App.3d 1239,251 Cal.Rptr. 846
• Parties: In re the MARRIAGE OF James Able and Florence Adam GRAY. James Able GRAY, Appellant, v. Florence Adam GRAY, Respondent.
• Court: California Court of Appeals Court of Appeals

Page 846

251 Cal.Rptr. 846

204 Cal.App.3d 1239

In re the MARRIAGE OF James Able and Florence Adam GRAY.

James Able GRAY, Appellant, v. Florence Adam GRAY, Respondent.

No. A035782.

Court of Appeal, First District, Division 3, California.

Sept. 30, 1988.

Norman G. Rosen, Vogel and Rosen, Ukiah, for appellant.

Lee S. Adams, Ukiah, for respondent.

BARRY-DEAL, Associate Justice.

James A. Gray (Husband) appeals from an order granting the motion of Florence Adam Gray (Wife) to quash the summons and dismiss the proceedings in Husband's California action for dissolution of the marital status filed in Mendocino County. The California court granted Wife's motion on the grounds that Husband had failed to comply with the orders of the Superior Court for the District of Columbia (hereafter referred to as the D.C. court) in Wife's action for separate maintenance in that jurisdiction and that the D.C. court was the proper forum for Husband's petition for dissolution of the marriage. We reverse the judgment.

I. Factual and Procedural Background

Husband spent approximately 20 years in the United States Army. After a distinguished career, he retired from active duty in 1960. He and Wife were married in Bergamo, Italy, on October 31, 1974. Thereafter, the couple established residency in Washington, D.C. They separated in November 1982 and have lived apart since that time.

Wife filed a complaint for legal separation and maintenance in February 1983 in the D.C. court. At that time, she was 54 and Husband was 73. She alleged that there were no children of the marriage, but that by a previous marriage she had an 11-year-old son for whom she was the sole support. She requested support, attorney fees and costs, an equitable division of personal property, and an award to her of the marital residence on Chevy Chase Parkway in Washington, D.C. On March 15, 1983, Husband filed an answer, admitting the jurisdictional allegations of Wife's complaint; he also counterclaimed for an absolute divorce. In her reply to the counterclaim, Wife admitted that there was no hope or possibility of a reconciliation, but opposed a divorce without stating a reason. ¹

On May 10, 1983, the D.C. court ordered that Husband pay to Wife $900 a month for temporary support and that he pay the monthly mortgage payment, alleged by Husband to be $1,248, commencing on June 1. Husband and his counsel were apparently present in court, and the order was based on the consent of the parties and Husband's financial statement showing a gross income of $2,453, which included $2,008 from his military pension, $55 from securities, and $390 from social security.

On May 10, over Husband's objection, the court also issued a temporary restraining order (TRO), ordering Husband immediately to wire his banks and/or brokerage houses outside the country and order them to transmit immediately all bank accounts and other securities to a bank within the District of Columbia to an account in Husband's name to be held until further disposition by the court. It further ordered that Husband was to make no investments without the joint written consent of the parties. A hearing on the preliminary injunction requested in Wife's motion for temporary orders was set for May 20.

On May 20, 1983, Wife filed a petition for writ of ne exeat (order to prevent person from leaving country while action pending). In that petition, Wife alleged that Husband failed to comply with the TRO of May 10, that he testified in court on May 10 that he intends to live in Europe and has no income in this country, that he admitted in court that he told Wife if she did not accept his settlement offer he would leave the country, that he testified in court that he would not be traveling abroad until June, and that she was told by Trans World Air Lines over the telephone that Husband had a reservation to leave the country on May 20 with no return date. Based on these allegations, she requested the court to order Husband to surrender his passport and remain within the D.C. jurisdiction until his Swiss assets had been transferred to that jurisdiction, or, in the alternative, that he be required to post bond of $200,000 to assure his compliance with the May 10, 1983, order.

On May 25, 1983, Wife's petition for ne exeat came on for hearing. Although the record contains no proof of service of the petition on Husband, his counsel appeared at the hearing. The D.C. court issued an order holding Husband in contempt and sentencing him to 30 days in jail, suspended until June 6, and to be executed at that time unless he had transferred all his monies and securities outside the continental United States to a bank or brokerage house in the District of Columbia. The court made its order based on Husband's failure to abide by the TRO of May 10, his admission in court on May 10 that he had threatened his Wife that he would move to Europe if she did not accept his settlement offer, his failure to appear in court on May 20, and his having gone to Europe after assuring the court that he would not go until June. (The record does not include a supporting declaration re contempt or an order to show cause in re contempt.)

On July 13, 1983, on Wife's application, the D.C. court modified the support order to provide that Husband pay directly to Wife $2,135 per month, commencing on August 1. It also vacated the order requiring Husband to pay the monthly mortgage payment on the marital residence, but did not order Wife to make that payment (although she apparently had possession). Because Husband had failed to comply with the TRO of May 10, the court refused to consider evidence presented by Husband's counsel that Wife was receiving $567.50 per month from the New York State Teachers' Retirement System.

When Husband failed to pay the support as ordered, Wife attached his military pension. ²

Around January 1984, Husband filed a petition for dissolution of marriage in California in the San Diego County Superior Court. In April 1984, the San Diego court issued an order abating that action unless and until such time as the D.C. court denied Husband's counterclaim for divorce "on the merits," and further ordered that Husband's proceeding in San Diego would "be forthwith dismissed" unless Husband complied with the orders of the D.C. court regarding the transfer of his assets within 90 days of March 14, 1984. By order of the San Diego court on June 6, 1984, this April 1984 order was extended to July 27, 1984, with the proviso that if no decision were reached in the D.C. court by that date, then the San Diego action would be dismissed, and Husband would be sanctioned if he returned to court with another motion "based on essentially the same grounds as his motion which resulted in this order...."

On June 18, 1984, Wife's complaint for legal separation and Husband's counterclaim for divorce came on for hearing in the D.C. court. Both Husband's and Wife's counsel were present; Wife was present and testified. Because Husband had remained outside the jurisdiction of the court, it refused to permit introduction of any of his evidence (including evidence that Wife was receiving retirement income of $567 and social security of $127 per month). There being no evidence of a change of circumstances, the court ordered Husband to pay permanent support to Wife in the same amount as the modified temporary support order--$2,135 per month. Wife was granted a legal separation from Husband, and each counsel was to submit a memorandum on the issues of whether the court had authority to sever Husband's counterclaim for divorce and keep it as a live action pending his return to the jurisdiction and whether the court had sufficient information to find that Husband had the ability to pay Wife's attorney fees and costs. The judgment was signed July 27, 1984.

On that same date, based on the memoranda submitted, the court made its order ordering Husband to pay Wife $20,225 for attorney fees, apparently based on Husband's financial declaration of May 1983. The court took no action on retention of jurisdiction over Husband's counterclaim for divorce; it was not even mentioned.

Husband's counsel moved for reconsideration of the court's refusal to grant a divorce on Husband's counterclaim, arguing that the grounds were clearly established by Wife's testimony and citing authority contrary to the court's position that it could not grant a divorce in the absence of the moving party. Counsel urged the court to reconsider its refusal to admit into evidence and consider the affidavits of Husband, his physician, and his California counsel. By order of September 14, 1984, the court denied the motion without comment.

Thus, the status of Husband's counterclaim for divorce in the D.C. court is presently unclear. That court has not filed a written order expressly denying Husband's request for a divorce, although it apparently refused to grant a divorce at the June 18, 1984, hearing on the ground that Husband was not personally present in court; nor has it ever expressly decided the question posed in its request on July 27, 1984, for memoranda on whether it had "the authority to sever [Husband's] counterclaim [for divorce] and preserve it as a live action pending [his] return" to D.C. ³ Thus, Husband's counterclaim for divorce had been in a state of limbo in the D.C. court for nearly two years before he filed his action in Mendocino County.

In March 1986, Husband filed the instant petition for dissolution of marital status in the Mendocino County Superior Court. Wife appeared specially and moved to quash the summons and dismiss the petition, arguing that there was another action pending in the D.C. court between Husband and Wife for the same cause, that Husband lacked the residency required by Civil Code section 4530, that there was no reasonable basis for the commencement of the instant action by Husband, and that Husband was engaging in " 'tactics or actions not based on...