Titus v. Superior Court

• Decision Date: 25 February 1972
• Citation: 23 Cal.App.3d 792,100 Cal.Rptr. 477
• Court: California Court of Appeals Court of Appeals
• Parties: Roger Elden TITUS, Jr., Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF CONTRA COSTA, Respondent; Anne MacDonald KELTY, Real Party in Interest. Civ. 30332.

Page 477

100 Cal.Rptr. 477

23 Cal.App.3d 792

Roger Elden TITUS, Jr., Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF CONTRA COSTA, Respondent Anne MacDonald KELTY, Real Party in Interest.

Civ. 30332.

Court of Appeal, First District, Division 1, California.

Feb. 25, 1972.

Hearing Denied April 19, 1972.

Bernard F. Cummins, Cox, Cummins & Rinehart, Martinez, for petitioner.

Michael E. Ballachey, Berkeley, for real party in interest.

MOLINARI, Presiding Justice.

In this case we issued an alternative writ of mandate upon the petition of Roger Elden Titus, Jr. Petitioner seeks an order requiring the respondent court to quash service of the summons and the order to show cause served upon him by mail in an action brought by real party in interest, Anne MacDonald Kelty, to establish a foreign divorce decree as a judgment in this state. The petition also seeks an order directing the superior court to refrain and desist from entering into or taking any other proceeding in said action.

Petitioner and real party were married in Massachusetts where they lived from 1961 to 1970. Three children were born to this union. On October 6, 1970, petitioner and real party were divorced in Massachusetts. The final judgment of divorce provided that petitioner was required to support the children, that he and real party were to have joint legal custody of the children, that petitioner was to have physical custody of the children on weekdays, and real party was to have such physical custody on weekends. The judgment provided, further, that the children were not to be taken from the Commonwealth of Massachusetts without permission of the court or the consent in writing of the other parent.

Real party subsequently moved to California where she remarried. On May 20, 1971, petitioner and real party entered into a written agreement wherein petitioner consented to having the children visit with real party in California during the summer of that year. The agreement was prepared by petitioner and was mailed to real party in California where she signed it. The agreement provided for the sharing between petitioner and real party of the children's roundtrip air fare from Boston to San Francisco, for their support by real party while the children were in her custody, and specifically provided that the children were to return to Massachusetts no later than the end of August 1971.

On June 26, 1971, the children came to California where they have remained ever since. On August 17, 1971, real party commenced an action in the Superior Court of the County of Contra Costa to establish the Massachusetts judgment of divorce as a California judgment and to have the judgment modified to award the custody of the children to real party, to require petitioner to pay for their support, and for attorney fees incurred in the prosecution of the action.

At the time the complaint was filed, real party procured the issuance of an order to show cause in said action directed to petitioner to appear and show cause on August 31, 1971, why the court should not issue its order awarding the custody of the children to real party temporarily pending the hearing of the order to show cause and permanently thereafter. The order to show cause also directed petitioner to show cause why he should not pay for the children's support and why he should not pay real party's attorney's fees and her court costs in connection with the proceedings. The order to show cause also directed petitioner to show cause why he should not be enjoined from removing the children from the County of Contra Costa pending the hearing of the action and permanently thereafter. The order to show cause also contained an ex parte order providing that during the pendency of the hearing of the order to show cause the custody of the children was awarded to real party and that each party was restrained from removing the minor children from Contra Costa County.

A copy of the complaint, summons and the order to show cause was sent to petitioner by certified air mail special delivery to his place of business in New Bedford, Massachusetts on August 19, 1971. ¹ Petitioner, in his petition, acknowledges that he received these papers by such mail prior to August 23, 1971.

On August 24, 1971, petitioner filed a motion to quash service of the order to show cause on the ground that the California court did not have jurisdiction because he was a resident of and domiciled in the Commonwealth of Massachusetts. This motion came on for hearing on August 27, 1971 and was denied on August 30, 1971. Thereafter, on August 31, 1971, the court proceeded to hold the hearing on the order to show cause. Petitioner appeared specially and objected to the jurisdiction of the court. The court received testimony from real party and admitted into evidence her declarations in support of the order to show cause. The court then made an order awarding the custody of the children temporarily to real party pending the trial of the action and ordered that petitioner pay real party, as and for the support of said children, the sum of $75 per month for each child. All other issues raised by the order to show cause were deferred, and a ruling thereon reserved, pending the trial of the action.

Petitioner contends that the superior court is acting in excess of its jurisdiction in that the court has never obtained personal jurisdiction over him. Real party asserts that the court does have personal jurisdiction over petitioner and that, moreover, petitioner, in contesting the order to show cause, made a general rather than a special appearance. In considering these contentions we first observe that although petitioner seeks to quash service of the summons he has not moved to quash the service of such process. His motion to quash was directed to and restricted solely to the service of the order to show cause. We are, therefore, only concerned with the propriety of the trial court's order denying petitioner's motion to quash service of the order to show cause.

Adverting to the respective contentions, we perceive that there is a distinction between the power to exercise judicial jurisdiction to determine the custody of children and the exercise of judicial jurisdiction to provide for the support of children. The former deals essentially with judicial jurisdiction over status while the latter is governed primarily by the principles applicable to jurisdiction over persons. In each, judicial jurisdiction may not be exercised, however, unless a reasonable method is employed to give the defendant or the person whose interests are affected notice of the proceedings and unless he is afforded a reasonable opportunity to be heard. (Rest.2d Conflict of Laws, § 25, p. 109; § 69, p. 214.)

Turning to the question of custody, we note that 'It is a sufficient basis for jurisdiction that the state 'has a substantial interest in the welfare of the child or in the preservation of the family unit of which he is a part . . . and this jurisdiction may exist in two or more states at the same time.' (Citation.)' (Sampsell v. Superior Court, 32 Cal.2d 763, 780, 197 P.2d 739, 750; see Allen v. Superior Court, 194 Cal.App.2d 720, 726, 15 Cal.Rptr. 286.) Accordingly, in custody matters there are three different bases of jurisdiction. As recognized in Sampsell, and as stated in the Restatement, 'A state has power to exercise judicial jurisdiction to determine the custody, or to appoint a guardian, of the person of a child . . . (a) who is domiciled in the state, or (b) who is present in the state, or (c) who is neither domiciled nor present in the state, if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.' ² (Rest.2d Conflict of Laws, § 79, pp. 237--240; see Sampsell v. Superior Court, supra, 32 Cal.2d at pp. 777--779, 197 P.2d 739.)

The rationale of Sampsell and the Restatement is that custody is a question of status and hence is subject to the control of the state where the child is domiciled or physically present. The state of a child's domicile is usually 'the one most deeply concerned with his welfare,' and the state where the child is physically present 'has the most immediate concern with him.' (Rest.2d Conflict of Laws, § 79; comment, p. 237; Sampsell v. Superior Court, supra, 32 Cal.2d 763, 778--779, 197 P.2d 739.) The Restatement, speaking of the basis of the child's physical presence in the state, observes that the courts of that state 'have direct access to the child and may be most qualified to decide what will best redound to his welfare.' (Rest., supra; see In re Kosh, 105 Cal.App.2d 418, 421--423, 233 P.2d 598.)

In view of the foregoing principles, jurisdiction to determine the custody of the children in the instant case does not depend on whether petitioner is personally subject to the jurisdiction of California. Personal jurisdiction would be vital only if the children were neither domiciled nor present in the State of California. In the present case the children were physically present within the boundaries of this state at the time the instant proceedings were instituted. This circumstance sufficed to give the California courts jurisdiction to entertain proceedings touching the custody of the children.

We apprehend, however, that the California court has the authority to refuse to exercise judicial jurisdiction if the basis of that jurisdiction, i.e., the physical presence of the children in this state, has been obtained by fraud or unlawful force. (Rest.2d Conflict of Laws, § 82, p. 247.) The rationale behind this principle is that a person should not be permitted to profit from his use of fraud or unlawful force. (Rest., supra.) In the present case there is no contention that the physical presence of the children in this state was procured by unlawful force since it is clear that they were voluntarily sent to California by petitioner pursuant...