Mizner v. Mizner

• Decision Date: 15 April 1968
• Docket Number: No. 5396,5396
• Parties: Willis O. MIZNER, Appellant, v. Ruth E. MIZNER, Respondent.
• Court: Nevada Supreme Court

Page 679

439 P.2d 679

84 Nev. 268

Willis O. MIZNER, Appellant, v. Ruth E. MIZNER, Respondent.

No. 5396.

Supreme Court of Nevada.

April 15, 1968.

Rehearing Denied April 30, 1968.

Richard C. Minor, Reno, for appellant.

Belford & Anglim, Reno, for respondent.

OPINION

THOMPSON, Chief Justice.

We are asked to set aside a partial summary judgment of our district court in so far as it accords full faith and credit to an alimony award contained in a California interlocutory divorce decree entered upon extraterritorial personal service of process. It is our opinion that the district court ruled correctly.

Mr. and Mrs. Mizner maintained their matrimonial domicile at Kings Beach, Lake Tahoe, California, from April 1947 to March 1965. They separated and the husband moved to Nevada. In May of the following year, 1966, he commenced an action for divorce here. Within a month, the wife filed suit for divorce in California and, on December 6, 1966, was awarded an interlocutory judgment of divorce, certain property located in California, and $300 a month alimony. In the California case personal service of process was made upon the defendant husband at his residence in Reno, Nevada. In January 1967 the wife appeared in the Nevada case asserting that the California interlocutory judgment was entitled to full faith in Nevada with regard to alimony and property, and thereafter filed a motion for partial summary judgment with respect to those issues. Her motion was granted and this appeal by the husband followed. The husband concedes that the California court had jurisdiction to grant an interlocutory divorce to the wife and to awrd her property located within that state. He also concedes, as he must, that the California interlocutory judgment is a final judgment in all respects except as to marital status, if entered with jurisdiction. Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963). His attack on appeal is directed solely to the validity of that part of the interlocutory judgment which awards alimony, contending that the California court was without jurisdiction to enter an in personam judgment upon extraterritorial personal service of process. It is his position that the Due Process Clause precludes jurisdiction, and he reminds us that in 1877 the Supreme Court of the United States established the rule that a court may take personal jurisdiction over the defendant only if process was served upon him personally within the state. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. Since such did not occur here, the California judgment must fall. We turn to examine the validity of this position in the light of recent developments in this area of the law.

1. The rule of Pennoyer has been substantially eroded by the High Court. Gambs v. Morgenthaler, 83 Nev. 90, 423 P.2d 670 (1967). Nondomiciliaries of the forum state have been subjected to the personal jurisdiction of that state without offending the demands of either procedural or substantive due process. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Travelers Health Ass'n. v. Com. of Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In International Shoe, supra, the court wrote: 'due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'' 326 U.S. at 316, 66 S.Ct. at 158.

None of the cited cases involves a personal judgment for alimony. Still, it seems to us that the minimum contacts concept of in personam jurisdiction is peculiarly suited to matrimonial support cases. If such contacts are in fact present in the particular case before the court, then the extension of in personam jurisdiction beyond the borders of the forum state may prove to be a sensible step in solving some of the hardships arising from family separaton. Courts must know by this time that strict application of the Pennoyer rule to family support cases has encouraged migratory divorce by offering a shield to a spouse wishing to avoid financial responsibility. ¹ The state of the matrimonial domicile has a deep interest in its citizens and a legitimate purpose in taking steps to preclude their impoverishment. Accordingly, it is our opinion that in personam jurisdiction may be acquired over a non-resident defendant in a divorce action by extraterritorial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy 'traditional notions of fair play and substantial justice.' The demands of due process are satisfied in these circumstances. ² The dissenting opinion suggests that May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), is contra. Reliance upon that case is misplaced. In May, there was no statute authorizing service outside the state on the mother in a child custody case, nor did the court consider whether personal jurisdiction could be based upon past contacts with the state. Thus, the problem confronting us was not reached in May.

2. Extraterritorial personal service of process was effected in this case pursuant to California Code of Civil Procedure, § 417, which provides: 'Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State (a) at the time of the commencement of the action, or (b) at the time that the cause of action arose, or (c) at the time of service.'

The California courts have construed § 417 to support personal jurisdiction over an absent defendant personally served outside of the state if he was a domiciliary of California when suit was commenced (Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905 (1953); Smith v. Smith, 45 Cal.2d 235, 288 P.2d 497 (1955)), or domiciled in that state when the cause of action arose (Owens v. Superior Court, 52 Cal.2d 822, 345 P.2d 921, 78 A.L.R.2d 388 (1959)). Owens was a personal injury suit. The cause of action arose in California when defendant was a resident there but, before the action was commenced, defendant became a permanent resident of Arizona. Chief Justice Traynor noted that the requiremetns of procedural due process were satisfied, since no more certain provision for defendant's receipt of actual notice of pending litigation against him could be made than through the specified personal service of process. The Chief Justice then turned his attention to substantive due process, nothing that the defendant was domiciled in California when the cause of action arose, and that the cause of action arose directly out of the defendant's activities there. In such circumstances the court concluded that the purpose of due process was fulfilled 'because it is reasonable and fair to require a defendant whose voluntary acts have given rise to a cause of action in a state to litigate his responsibility for that conduct at the place where it occurred.' Id. at 925. The rationale of Owens had been applied in California to divorce and alimony. Soule v. Soule, 193 Cal.App.2d 443, 14 Cal.Rptr. 417 (1961). In that case both parties were domiciled in California when the cause of action arose, but before suit was commenced the husband moved permanently to Montana where he was personally served with process. He did not appear. The wife was granted an interlocutory judgment of divorce and alimony. The husband then appeared specially and sought to delete the alimony provision. He was not successful.

Soule is squarely on point with the case at hand. Here, the parties were domiciled in California until their separation. Presumably, the wife's cause of action for cruelty arose out of the husband's conduct while they were living together. The interlocutory judgment was entered by a court of eneral jurisdiction and carries with it the presumption of validity. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940). We are not at liberty to ignore the construction placed upon § 417 by the California courts. Rather, we must honor their view. Farnham v. Farnham, 80 Nev. 180, 183,391 P.id 26 (1964); Kraemer v. Kraemer, 79 Nev. 287, 290, 382 P.2d 394 (1963); Choate v. Ransom, 74 Nev. 100, 323 P.2d 700 (1958); Summers v. Summers, 69 Nev. 83, 241 P.2d 1097 (1952). The California judgment is entitled to full faith and credit. Biel v. Godwin, 69 Nev. 189, 245 P.2d 997 (1952).

For the reasons expressed the judgment below is affirmed.

ZENOFF and MOWBRAY, JJ., concur.

COLLINS, Justice (dissenting).

I do not feel we are bound to give full faith and credit to the California judgment under authority of the Soule case. As pointed out in Mr. Justice Batjer's opinion, the United States Supreme Court, the final arbiter of the meaning of the full faith and credit clause, has not said so. In effect then, the California court in Soule pronounces a rule which it hopes the United States Supreme Court will finally adopt. Whether that rule will prevail remains to be seen.

In analyzing the Soule case, it must be kept in mind that following entry of the decree granting divorce and the award of alimony to the wife, the husband, then a Montana resident, appeared specially in California and moved to vacate and delete the award of alimony, court costs and...