Starr v. Starr

• Court: California Court of Appeals
• Writing for the Court: PEEK; VAN DYKE, P. J., and SCHOTTKY
• Citation: Starr v. Starr, 121 Cal.App.2d 633, 263 P.2d 675 (Cal. App. 1953)
• Decision Date: 30 November 1953
• Docket Number: 8258,Nos. 8190,s. 8190
• Parties: STARR v. STARR. Civ.

Page 675

263 P.2d 675

121 Cal.App.2d 633

STARR v. STARR.

Civ. Nos. 8190, 8258.

District Court of Appeal, Third District, California.

Nov. 30, 1953.

Hearing Denied Jan. 27, 1954.

Sugarman & Bernheim, San Francisco, for appellant.

Thomas Pierce Rogers, San Francisco, for respondent.

PEEK, Justice.

This is an appeal by the defendant from three orders of the trial court: (1) For support of the minor child of the parties pendente lite and attorney's fees; (2) for attorney's fees on appeal; and (3) for support of the child pending appeal. Since the appeals were predicated upon the same grounds the parties have stipulated that they should be treated as one appeal.

The pertinent facts (and they are not contradicted) are that in 1949 the plaintiff secured a decree of divorce from the defendant in the State of Nevada. Under the terms of that decree she was awarded the custody of the minor child of the parties, then aged approximately five years and the defendant was ordered to contribute the sum of $25 per month for the support of the child. Thereafter the plaintiff and the child became domiciled in Sonoma County of this state and ever since have resided in that county. On February 23, 1951 the plaintiff filed an action in the Superior Court of said county entitled 'Complaint for Child Support' in which she sought additional sums for the support of said child. The defendant father was personally served with a copy of the complaint and the order to show cause why he should not be ordered to pay a reasonable sum for the support of the child, attorney's fees and court costs. The complaint alleged the previous divorce and custodial decree of the Nevada court; that the child and plaintiff were residents of this state; that the defendant was a resident of the State of Pennsylvania, and that by reason of the changed circumstances of the child and of the parties additional sums should be awarded for her support. The defendant appeared specially and moved that the action be dismissed upon the ground that he was not subject to the jurisdiction of the courts of this state in that he was not a resident thereof. A further ground which was argued at that time, that is, his immunity from service by reason of the provisions of the Soldiers and Sailors Relief Act, 50 U.S.C.A.Appendix, § 501 et seq., is not raised on appeal. After oral argument on his motion and the submission thereof, the court denied the same and ordered the defendant to pay the sum of $75 per month to plaintiff for the support of said child. Attorney's fees were also awarded as were plaintiff's costs. Upon defendant taking this appeal a further order was made ordering defendant to pay additional sums as attorney's fees and costs. It is from these orders that defendant now appeals.

Two contentions are raised, (1) that the complaint does not allege facts sufficient to state a cause of action in that it seeks to modify a decree of another state for child support--the defendant not being a resident of the State of California, and (2) that the orders were improper and are in violation of the Fourteenth Amendment of the Constitution of the United States in that they were entered without due process and abridged the privileges and immunities of a citizen of the United States.

In support of his contention defendant states that although he has found no case directly in point in this state the case of Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, controls the question so raised. In that case the order settling the obligation of the father to support his daughter was in accordance with a Georgia statute providing that in case of total divorce the court could make permanent provision for the support of a minor child and thus fix the extent of the father's obligation of support. No such...