Smith v. Smith

Citation125 Cal.App.2d 154,270 P.2d 613
CourtCalifornia Court of Appeals
Decision Date13 May 1954
PartiesSMITH v. SMITH. Civ. 19836.

Weyl & Weyl, Bertin A. Weyl and John A. Weyl, Hollywood, for appellant.

Savenick & Shapiro, Jerome D. Savenick, Los Angeles, Chester B. Shapiro, North Hollywood, and Martin S. Stolzoff, Beverly Hills, for respondent.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., S. Ernest Roll, Dist. Atty., Harold O. Pressman, Deputy Dist. Atty., Los Angeles, amici curiae on behalf of respondent.

VALLEE, Justice.

Appeal by defendant from an order in a proceeding brought under the 'Reciprocal Enforcement of Support Law'. Code Civ.Proc. §§ 1650-1681. Defendant also appeals from an order denying his motion for a new trial. Since the latter order is nonappealable the appeal therefrom will be dismissed.

The 'Reciprocal Enforcement of Support Law' was enacted in 1951. Stats.1951, ch. 694. It was amended in 1953. Stats.1953, ch. 1290. This proceeding is governed by the law as originally enacted. The support law is designed to enable a dependent in one state to secure money for support from a person residing in another state who is legally liable for the support of the dependent. Its purposes are to improve and extend by reciprocal legislation the enforcement of duties of support. The dependent--or in case of a minor, its guardian--may commence proceedings in a court of the state in which she or he resides, called the initiating state, by filing a complaint and causing a summons to be issued. If the summons is returned 'not found,' the court determines whether the defendant owes a duty of support and whether a court of the state in which the defendant resides, called the responding state, may obtain jurisdiction of the defendant or his property. If it so determines, it certifies accordingly and causes certified copies of the complaint, the certificate, and an authenticated copy of the support law of the state to be transmitted to the court of the responding state. When this state is the responding state, upon receipt of the copies from the court of the initiating state the court dockets the cause, notifies the county counsel or district attorney of the county, sets a time and place for hearing, and takes such action as is necessary in accordance with the laws of this state to obtain jurisdiction. If on the hearing the court finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject his property to such order. The court then transmits to the court of the initiating state a copy of all orders of support or reimbursement. Security may be required; payments may be ordered to be made to the probation officer of the county; and violation of any order is punishable by contempt.

On November 20, 1945, plaintiff, Anita C. Smith, filed a complaint for divorce from defendant in the Court of Common Pleas, Litchfield County, Connecticut, in which she alleged jurisdictional facts, that she married defendant on August 19, 1944, grounds for divorce, and that there was one child, Carol, the issue of her marriage with defendant, born April 10, 1945. She prayed for a divorce, for custody of the child, and for support for herself and the child. Defendant was served with the complaint and on December 5, 1945, appeared in the action. On February 27, 1946, plaintiff moved the court to place the action on the uncontested list. The motion was granted on March 8, 1946. On March 15, 1946, judgment was rendered granting plaintiff a divorce, decreeing that the parties had one minor child the issue of the marriage, Carol, granting plaintiff custody of the child, and ordering defendant to pay plaintiff $15 a week for the support of Carol.

On April 7, 1952, plaintiff filed a petition for support of Carol in the Connecticut court in which she alleged that the child is in need of and entitled to support from defendant under Connecticut law; about December 1, 1946, and subsequent thereto defendant refused and neglected to provide fair and reasonable support for Carol according to his means and earning capacity; on information and belief, that defendant was residing or domiciled in Burbank, California; and that California has enacted a law similar to Connecticut's reciprocal support law. 1 The prayer was for an order of support directed to defendant. At the same time plaintiff filed with the Connecticut court an 'Election to Proceed' which stated in effect that she understood that the filing of the petition of April 7, 1952, 'might be interpreted by a Court of competent jurisdiction as an election by her to submit to the jurisdiction of the Court of the responding State where her' former husband resides. A summons issued ordering defendant to show cause why the order for support should not be made. The sheriff made a return that he could not with due diligence locate or serve defendant with the summons in Connecticut. A judge of the court then made a certificate which recited the above facts; stated he had examined plaintiff under oath and she had reaffirmed the allegations of the petition; stated that according to her testimony the need of Carol for support from defendant are $15 a week; that defendant should be compelled to answer the petition; and ordered that the certificate together with exemplified copies of the petition and summons be transmitted to the superior court of Los Angeles County, California.

The documents were filed with the clerk of the superior court of Los Angeles County on May 6, 1952. Thereafter an order to show cause issued out of the superior court commanding defendant to show cause why an order should not be made on the basis of the petition, directing him to pay to plaintiff such sum as the court might determine for the support of Carol.

Defendant appeared in response to the order to show cause and a trial was had. The court found: the facts alleged in the petition are true; Carol is the minor child of plaintiff and defendant; Carol is living with plaintiff in Connecticut and is partially dependent on defendant for support; defendant owes a duty of support of Carol; $10 a week is a reasonable sum to be contributed to her support; defendant has the present ability to pay said amount. An order followed commanding defendant to pay $10 a week to the probation officer of Los Angeles County for the support of Carol and ordering the probation officer to send all monies received to the clerk of the Connecticut court. Defendant appeals.

The assignments of error are: 1. The initiating papers filed by plaintiff do not contain sufficient facts to constitute a claim or cause of action against defendant and do not comply with the statutory requirements. 2. The court erred in denying defendant the right to prove that the original Connecticut decree ordering him to support Carol was obtained by extrinsic fraud, and in refusing to permit him to prove that he is not the father of Carol and therefore he oweed no duty of support. 3. The 'Reciprocal Enforcement of Support Law' is unconstitutional.

At the time in question section 1674 of the Code of Civil Procedure provided: 'If the court of this State acting as an initiating state finds that the complaint sets forth facts from which it may be determined that the defendant owes a duty of support and that a court of the responding state may obtain jurisdiction of the defendant or his property, he shall so certify and shall cause certified copies of the complaint, the certificate and an authenticated copy of this law to be transmitted to the court of the responding state.' Section 1675 provided that when the court of this state, acting as the responding state, receives from the court of an initiating state the aforesaid copies, it shall docket the cause and proceed. Section 1670 provided: 'Duties of support enforceable under this title are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee.'

The first assignment of error is predicated on the claim that the petition filed April 7, 1952, states that a copy of the Connecticut law is attached thereto but that in fact such was not the case, and that the initiating papers do not show that defendant, the obligor, was present in Connecticut during the period for which support is sought or that plaintiff, the obligee, was present in Connecticut when the failure to support commenced. The point has no merit. A copy of the Connecticut law was transmitted to the superior court. 2 That is all the law requires.

Under section 1670 it is only when there is a difference in the duty of support provided by the respective states that the initiating papers should show one or the other of the facts claimed by defendant, and in such case the obligee has an election as to the law of the state under which she shall proceed. There is no difference in the duty of support for a child under the age of 17 years provided by Connecticut law and that provided by California law. Civ.Code, § 196; 1951 Cum.Supp. To Conn. Gen. Stats., ch. 415a, § 1396b. The purpose of the section is to given the dependent an election in the event of conflicting laws. In any event, defendant cannot raise this question since the choice is that of the obligee-plaintiff.

At the trial defendant offered to prove that: at the time the parties were married plaintiff was pregnant 'by another man'; on the eventing they were married plaintiff told defendant she had made a mistake, she never should have married him, and she was not going to live with him; they stayed in a hotel room that night; the next morning she went back to her home; they did not live together thereafter; a week later she told him she was pregnant; he told her he was going to get an annulment, she said,...

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48 cases
  • El Dorado County v. Schneider
    • United States
    • California Court of Appeals Court of Appeals
    • 22 Julio 1986
    ...732, 735, 150 Cal.Rptr. 423 [revised Uniform Reciprocal Enforcement of Support Act held civil in character]; Smith v. Smith (1954) 125 Cal.App.2d 154, 167, 270 P.2d 613 [same].) The sanction at issue here--the order establishing paternity--is similar to sanctions provided by section 2034, s......
  • County of El Dorado v. Schneider
    • United States
    • California Court of Appeals Court of Appeals
    • 13 Mayo 1987
    ...732, 735, 150 Cal.Rptr. 423 [revised Uniform Reciprocal Enforcement of Support Act held civil in character]; Smith v. Smith (1954) 125 Cal.App.2d 154, 167, 270 P.2d 613 [same].) The sanction at issue here--the order establishing paternity--is similar to sanctions provided by section 2034, s......
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    • United States
    • California Court of Appeals Court of Appeals
    • 8 Agosto 2000
    ...the equitable defense of laches cannot bar enforcement of a judgment for child support. (Fam.Code, §§ 3585, 3900; Smith v. Smith (1954) 125 Cal.App.2d 154, 164, 270 P.2d 613; Pratali v. Gates, supra, 4 Cal.App.4th at p. 645, 5 Cal.Rptr.2d The majority makes a distinction that while child su......
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    • California Supreme Court
    • 31 Octubre 1958
    ...when the privilege is granted, it must be granted on equal terms to all within the class to which it is granted. In Smith v. Smith, 125 Cal.App.2d 154, 169, 270 P.2d 613, 624, the court said: 'The equal protection clause does not preclude the states from resorting to classification, but onl......
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