Smith v. Smith

• Decision Date: 14 October 1955
• Citation: 45 Cal.2d 235,288 P.2d 497
• Parties: Eythle SMITH, Plaintiff and Respondent, v. Ray SMITH, Defendant and Appellant. S. F. 19054.
• Court: California Supreme Court

Page 497

288 P.2d 497

45 Cal.2d 235

Eythle SMITH, Plaintiff and Respondent, v. Ray SMITH, Defendant and Appellant.

S. F. 19054.

Supreme Court of California, In Bank.

Oct. 14, 1955.

Desmond N. Bonnington, Anderson & Peck, Milner J. Anderson and Edward F. Peck, Oakland, for appellant.

Harris, Darter & Older and R. J. Darter Oakland, for respondent.

SPENCE, Justice.

Defendant appeals from certain portions of the interlocutory decree of divorce and related orders. He challenges the propriety of the trial court's assumption of in personam jurisdiction over him by virtue of the service of process on him without the state. His objections cannot prevail in view of the provisions of the governing statutes. Code Civ.Proc. §§ 412, 413, 417.

Section 417 of the Code of Civil Procedure 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 at the time of the commencement of the action or at the time or service.' Section 412 provides that a person who 'resides out of the State; or has departed from the State; or can not, after due diligence, be found within the State; or conceals himself to avoid the service of summons' is subject to service by publication. Section 413 provides that under such circumstances, personal service outside the state is 'equivalent to publication'.

On October 27, 1953, plaintiff filed her complaint for divorce, alimony, division of personal property, counsel fees and costs. On the same day she obtained an order directing service of summons by publication. Her supporting affidavit states that defendant 'temporarily resides out of the State of California, to-wit: Buffalo, New York'; and the order states that it appears from the affidavit that defendant 'does not reside' in California and 'resides' in Buffalo, New York. Defendant was personally served in Buffalo on October 30, 1953 Following defendant's default and on December 3, 1953, plaintiff was granted an interlocutory decree of divorce including provision for alimony and the division of personal property and a separate order awarding attorney fees and costs.

Thereafter, defendant, appearing specially, moved to vacate the decree, except for its declaration that plaintiff was entitled to a divorce, and the order, on the ground that no jurisdiction over his person had been obtained because he was not 'a resident' of this state at the time of the commencement of the action or at the time of service. Code Civ.Proc. § 417. His supporting affidavit states that in January, 1953, he left California and established his residence and domicile in Cincinnati, Ohio, where he maintained his permanent abode and the permanent headquarters of his business of lecturing on real estate and selling a certain publication connected with the lecture course; that he had not actively participated in the management of his real estate business in California since 1951, but it was operated by a manager; that he did not have when he left California, and does not have, any intention of returning to California.

At the hearing of the motion to vacate, plaintiff testified, supporting her statements in part with documentary evidence: That for more than twenty years prior to their separation in January, 1953, she and defendant had resided together in Alameda County; that defendant had long maintained a real estate besiness in Oakland, the last eight years being at the same address; that in January, 1953, he left California on an extended lecture and book-selling tour, visiting many cities throughout the United States but remaining in each place no more than a week or ten days; that he returned to Alameda County for four days in May, 1953, and then resumed his tour, meanwhile, as before, communicating regularly with the manager of his Oakland real estate office, maintaing his address for mail and bills at the address of his Oakland business, where he kept the supplies for his book-selling tour; and that throughout 1953 defendant's daily mail, received at his Oakland business address, was forwarded to him at the various cities where he sojourned. During 1953 Defendant kept his business bank account in California and made withdrawals from it; he left his automobile registered in California and retained his California business address for federal income tax purposes; he left clothing and other personal property with plaintiff at her home in Oakland, Alameda County; and he repeatedly expressed to plaintiff and others, both orally and in writing, his intention to return to Oakland when a property settlement with plaintiff was made and he had earned enough money to pay outstanding bills, in line with his plan to keep control of the policy and management of his California real estate business and to build up the organization.

The trial court denied defendant's motion to vacate and granted plaintiff additional attorney fees. Defendant appeals from this order of denial, from the interlocutory decree, except insofar as it declares plaintiff entitled to a divorce, and from the orders for attorney fees and costs. While the court did not make a specific finding as to the domicile of defendant, it is clear from the record that it denied relief to defendant upon acceptance of plaintiff's claim that defendant was at the time of the commencement of the divorce action a domiciliary of this state, and hence the court had jurisdiction to render an in personam judgment against him following the personal service of process on him in New York. Code Civ.Proc. § 417. Defendant contends that the words 'resident of this State', as used in the cited statute, do not contemplate domicile as the jurisdictional factor but rather require residence in fact, even physical presence, of defendant within the state; but such contention cannot be sustained.

As used in section 417, the word 'resident' has not been specifically defined by code or judicial decision, and its meaning must therefore be determined here. Courts and legal writers usually distinguish 'domicile' and 'residence,' so that 'domicile' is the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively; whereas 'residence' connotes any factual place of abode of some permanency, more than a mere temporary sojourn. 'Domicile' normally is the more comprehensive term, in that it includes both the act of residence and an Intention to remain; a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time. 28 C.J.S., Domicile, § 1, p. 1 et seq.; 16 Cal.Jur.2d 'Domicile,' §§ 2-3, pp. 647-649. But statutes do not always make this distrinction in the employment of those words. They frequently use 'residence' and 'resident' in the legal meaning of 'domicile' and 'domiciliary,' and at other times in the meaning of factual residence or in still other shades of meaning. (Rest., Conflict of Laws, § 9, com. e; 17 Am.Jur. 'Domicile,' sec. 9, p. 593.) For example, in our codes 'residence' is used as synonymous with domicile in the following statutes: sections 243 and 244 of the Government Code, giving the basic rules generally regarded as applicable to domicile, Lowe v. Ruhlman, 67 Cal.App.2d 828, 833, 155 P.2d 671; section 301 of the Probate Code, relating to jurisdiction for the administration of decedents' estates, In re Estate of Glassford, 114 Cal.App.2d 181, 186, 249 P.2d 908, 34 A.L.R.2d 1259, and section 128 of the Civil Code, providing that a divorce must not be granted unless the plaintiff has been 'a resident' of the state for one year. Ungemach v. Ungemach, 61 Cal.App.2d 29, 36, 142 P.2d 99. On the other hand, 'nonresident' has a more factual meaning in contemplating an actual, as distinguished from a constructive or legal residence in the following statutes: section 537 of the Code of Civil Procedure, providig for attachment in a contract action of property of a defendant 'not residing in this State', Hanson v. Graham, 82 Cal. 631, 633, 23 P. 56, 7 L.R.A. 127, and section 404 of the Vehicle Code, providing for substituted service on 'a nonresident' in an action arising from the operation of an automobile in this state. Briggs v. Superior Court, 81 Cal.App.2d 240, 246, 183 P.2d 758. As stated in the Briggs case, 81 Cal.App.2d at page 245, 183 P.2d at page 762: 'Residence, as used in the law, is a most elusive and indefinite term. It has been variously defined * * *. To determine its meaning, it is necessary to consider the purpose of the act.' (See Reese and Green, 'That Elusive Word, 'Residence," 6 Vanderbilt Law Review 561; 1 Beale, Conflict of Laws, p. 109 et seq.)

With respect to section 417 of the Code of Civil Procedure, it must be concluded that the word 'resident' is used in reference to domicile, and hence means 'domiciliary.' In this connection, the historical background of section 417, enacted in 1951, is significant. For many years sections 412 and 413 had been in our code, in language literally broad enough to have permitted a personal judgment against a defendant based on substituted service outside the state. However, the right to the entry of such personal judgment was denied. The leading case was Pennoyer v. Neff, 1877, 5 Otto 714, 95 U.S. 714, 24 L.Ed. 565, which declared that a court could not acquire personal jurisdiction over a nonresident defendant in an action through the service of process outside the state of the forum. This theory of jurisdiction, based on the concept of 'power' over the person of defendant, was then applied in...