Whittlesey v. Bellah

• Court: California Court of Appeals
• Writing for the Court: DRAPEAU; WHITE, P. J., and DORAN
• Citation: Whittlesey v. Bellah, 130 Cal.App.2d 182, 278 P.2d 511 (Cal. App. 1955)
• Decision Date: 11 January 1955
• Parties: Ruth Power-O'Malley WHITTLESEY, Mother on behalf of Ann De La Poer Bellah, Plaintiff and Appellant, v. James Warner BELLAH, Defendant and Respondent. Civ. 20362.

Page 511

278 P.2d 511

130 Cal.App.2d 182

Ruth Power-O'Malley WHITTLESEY, Mother on behalf of Ann De La Poer Bellah, Plaintiff and Appellant, v. James Warner BELLAH, Defendant and Respondent.

Civ. 20362.

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

Jan. 11, 1955.

Hearing Denied March 9, 1955.

Loeb & Loeb and Herman F. Selvin, Los Angeles, for appellant.

Fox, Goldman & Kagon, Beverly Hills, for respondent.

DRAPEAU, Justice.

James Warner Bellah, respondent in this case, was married to petitioner in Alexandria, Virginia, in 1937. One child was born of this marriage,--Ann De La Poer Bellah.

In 1940 petitioner, Mrs. Bellah, secured a decree of judicial separation from Mr. Bellah, and custody of the child, in the State of New York. In 1942 she was awarded a decree of absolute divorce from Mr. Bellah in the State of Nevada. She has since remarried. Her name now is Ruth Power-O'Malley Whittlesey.

By agreement of Mr. and Mrs. Bellah, then husband and wife, the Nevada decree incorporated a provision requiring Mr. Bellah to pay the child $25 a month for her support until her eighth birthday; $35 a month until her thirteenth birthday; and $50 a month until her twenty-first birthday or until her marriage or self-sustaining employment.

So far as may be determined from the sketchy record in this case, Mr. Bellah has always made these payments.

In June of 1953 the mother, on behalf of the child, petitioned the courts of New York, under the uniform reciprocal enforcement of support laws of New York and California, Code Civ.Proc. §§ 1650-1690; McK.Unconsol.Laws N.Y. § 2111 et seq.; and see In re Susman, 116 Cal.App.2d 698, 254 P.2d 161, for an order requiring Mr. Bellah to increase his payments for the child to $250 a month.

As the law provides, the Domestic Relations Court of the City of New York heard the petition in the first instance. That court ordered that the papers and testimony be forwarded to the proper court in California, and the judge made a motation on the papers that 'the sum of $250 per month for the support of the one child is recommended.'

Mr. Bellah was then served with California process, the case came on duly for hearing in the Superior Court here, and was ordered dismissed. The mother, on behalf of the child, appeals from the order.

The most serious question on appeal is Mr. Bellah's defense that he had no notice of the New York proceeding until he was served in the California proceeding; and that consequently he had no opportunity to test the testimony of the child's mother by cross-examination.

It appears from the docket of the New York court that the petition was heard on an affidavit of non-service and the verified petition and testimony of the mother. The affidavit of non-service is by a police officer of the City of New York, 'that he cannot with due diligence locate or serve the respondent designated in the said process within the City of New York.' And it may fairly be said that the former Mrs. Bellah knew Mr. Bellah's address in California at all times.

Mr. Bellah argues that before a citizen of this state may be subjected to the application of the reciprocal enforcement of support laws, if he can be found with reasonable diligence, he is entitled to such notice of the proceeding in the initiating sister state as will enable him to appear and defend there. And that in this case he has been deprived of the right to appear in the court of first instance, to be represented by counsel in that court, to cross-examine witnesses adverse to him, and to test the legal sufficiency of that proceeding.

In the law of substituted service it is elementary that fair play requires that a defendant be given notice sufficient to apprise him of what is going on and an opportunity to defend. Anything less than that is a denial of due process of law. People v. One 1941 Chrysler 6 Touring Sedan, 81 Cal.App.2d 18, 183 P.2d 368. In this case it would have been a...