Smith v. Smith

• Court: California Court of Appeals
• Writing for the Court: BARNARD
• Citation: Smith v. Smith, 281 P.2d 274, 131 Cal.App.2d 764 (Cal. App. 1955)
• Decision Date: 24 March 1955
• Parties: Montana F. SMITH, Plaintiff and Respondent, v. Norton A. SMITH, Defendant and Appellant. Civ. 4939.

Page 274

281 P.2d 274

131 Cal.App.2d 764

Montana F. SMITH, Plaintiff and Respondent, v. Norton A. SMITH, Defendant and Appellant.

Civ. 4939.

District Court of Appeal, Fourth District, California.

March 24, 1955.

Rehearing Denied April 21, 1955.

Hearing Denied May 18, 1955.

Baker, Palmer & Wall, H. E. McCombie, Bakersfield, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

BARNARD, Presiding Justice.

This is an appeal from an order in a proceeding brought under the Uniform Reciprocal Enforcement of Support Act, Code Civ.Proc. §§ 1650-1690.

The plaintiff and defendant were married in Bakersfield on March 6, 1937. Twin sons were born to them on August 29, 1938. The family went to Colorado sometime in 1940 and the wife and children have remained in that state. On July 13, 1948, the plaintiff secured an interlocutory decree of divorce from the defendant on the ground of desertion, in the District Court of the City & County of Denver, Colorado. This decree became final on January 13, 1949. It awarded custody of the minors to the plaintiff, until the further order of the court, but made no provision for their support.

On December 10, 1953, the plaintiff filed a complaint in the District Court of the City & County of Denver under the 'Uniform Reciprocal Enforcement of Support Act' of that state, Chapter 151, Session Laws of Colorado, 1951. The complaint alleged the marriage of the parties in Bakersfield; the birth of the twin sons, who were then 15 years of age; the entry of the divorce decree which had become final, a copy of the decree being attached to the complaint; that no provision for the support of the minors was made in that decree because the defendant was then and has ever since remained outside of the jurisdiction of the state of Colorado; that the plaintiff has been a resident of Denver for more than three years and the minors now reside there with her; that the Uniform Reciprocal Enforcement of Support Act is likewise a law of the state of California; that the plaintiff is in need of, and entitled to, support from the defendant under the provisions of the Colorado Act for herself and the minors; that the defendant has neglected and refused to support plaintiff and the minors since prior to the date of the divorce decree; that the defendant is able to provide such support as contemplated by the Support Act; and that the defendant resides at a certain address in Bakersfield within the jurisdiction of the superior court of Kern County, California. The prayer was that it be determined that the defendant owes a duty of support to the plaintiff and the minors; that the superior court of Kern County, California, acting as a court of a reciprocal state under the Reciprocal Enforcement Act may have jurisdiction over the defendant and his property; that a support order should be entered and enforced where the defendant resides; that moneys collected thereunder shall be transmitted as provided for in the Support Act; and that it be ordered that copies of the complaint and an authenticated copy of the Uniform Reciprocal Enforcement of Support Act of Colorado, with other pertinent data, be transmitted to the superior court of Kern County, California.

On December 21, 1953, an order was entered in the District Court in the City & County of Denver, finding that these two minors were in need of support, that the superior court of Kern County, California, acting as a court of a reciprocal state under the Uniform Reciprocal Enforcement of Support Act, may obtain jurisdiction over the defendant and his property; that the plaintiff is in need of and is entitled to $114 per month from the defendant for the support of these minors; that the defendant has failed to support said dependents; and that a support order should be entered and enforced where the defendant now resides, in Bakersfield, California. The clerk was ordered to certify copies of the complaint and transmit the same, with an authenticated copy of the Colorado Act and other pertinent data, to the superior court of Kern County, California, for appropriate action. These documents were forwarded to the superior court of Kern County and filed there on December 31, 1953. The Colorado Act is substantially identical with the California Act, except that it does not contain the criminal enforcement provisions found in Sections 1660 and 1661 of our Act.

An order by the superior court of Kern County was issued on January 6, 1954, requiring the defendant to show cause why he should not be made to pay such sums as the court might determine for the support of these minors. The defendant filed affidavits and was present with his counsel at the hearing which was held on February 11, 1954. Evidence was taken and the matter submitted on briefs. An order was entered on April 13, 1954, in which after finding that these minors are in need of, and are entitled to, support from the defendant as alleged in the verified complaint, and that the defendant is chargeable with such support and able to furnish the same, the court ordered the defendant to pay $60 per month for each child until the further order of the court.

In his affidavits the defendant alleged that he was born and raised in California, and never acquired a residence or domicile in Colorado; that he was a member of the Officers's Reserve Corps of the U. S. Army; that during 1940 he requested a year of active duty; that upon making this request he took his wife to Colorado so she could stay with her relatives during his absence; that this stay in Colorado was intended to be temporary only; that he began his tour of active duty on April 24, 1941, and it would have concluded a year later if World War II had not occurred; that he returned from his war service and was discharged on April 6, 1946, at a point near Denver; that he requested his wife to return to California with the children but she refused; that he then returned to California and procured employment; that again in 1947 she refused to come to California and bring the children; and that he did not learn that a divorce action was brought against him until shortly before the decree became final.

With respect to his ability to pay, the defendant further alleged that he is now married to another woman; that his wife is expecting a baby; that he expects shortly to receive about $4,000 from the estate of his father; that he has agreed to turn this over to his wife to assist her in purchasing a portion of the estate's interest in a certain copartnership; that he received certain property from his deceased father as surviving joint-tenant; that he had converted this property into cash and used all the proceeds in the purchase of a lot and the construction of a home for himself and family; that this house, with its furnishings, had cost him a total of $46,000; that he would have to pay certain taxes and attorneys' fees; that his income is $564.50 per month; and that he requires that entire amount for the support of himself and his family, and the upkeep of this home.

The appellant first contends that the California Uniform Reciprocal Enforcement of Support Act, if applied under the facts here involved and to the extent that punishment might be imposed upon him, is an ex post facto law and prohibited by Article I Section 10 of the Constitution of the United States. It is argued that the respondent was the deserting party since she refused to return to California; that the appellant was released from any obligation of support by the decree which contained no order...