Lummis v. Lummis

California Court of Appeal Aug 30, 1956 No. Civ. 5432Published

Before: Barnard

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Holding. The court held that under the 1955 amendments to the Code of Civil Procedure, a defendant in a divorce action no longer has an absolute right to a change of venue to their county of residence, and the trial court has discretion to deny such a motion if the ends of justice are not promoted by the change.

Issues

Whether the 1955 amendments to sections 395 and 397 of the Code of Civil Procedure removed a defendant's absolute right to a change of venue in a divorce action.
Whether the trial court abused its discretion in denying the defendant's motion for a change of venue.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under these statutes as amended the appellant did not have an absolute right to a change of venue and, under the showing made, the order denying her motion may not be disturbed.”

“Whether the ends of justice would be promoted by a change of venue must necessarily rest largely in the discretion of the trial court, to be determined upon the facts which are there made to appear.”

BARNARD, P. J.

The plaintiff brought this action for divorce on February 7,1956, alleging in his complaint that he

[256]

is and for more than one year last past has been a resident of this state, and for more than three months a resident of the county of San Diego. The defendant filed a demurrer and moved for a change of venue, alleging that at the time of the commencement of the action she was and still is a resident of the county of Los Angeles. Her affidavit in support of the motion alleged that she is a permanent resident of Los Angeles County; that she has adopted that location as her permanent

residence;

and that she did not reside in San Diego County at the time the action was filed. Nothing is alleged as to how long she had been a resident of Los Angeles County.

The plaintiff filed an affidavit in opposition to the motion alleging that he is a medical doctor, with the rank of captain in the United States Navy and stationed at the United States Naval Hospital at San

Diego;

that in his capacity as a medical doctor he has a strict schedule to fulfill and is under orders at such establishment; that he is unable to be away from the hospital for any extensive periods of time; and that several of the witnesses necessary to the presentation of his case are also members of the United States Navy, under orders, and unable to be away from their duties for any extensive periods of time.

After a hearing, the court entered an order denying the defendant’s motion for change of venue. The defendant has appealed from that order contending that since it was undisputed that her residence was in Los Angeles County at the time this action was filed, the order denying a change of venue is erroneous. She cites a number of older eases supporting that contention, including

Bybee

Fairchild,

75 Cal.App.2d 35 [170 P.2d 54], where it is said “It is also well settled that the normal right of the defendant is to have the action tried in the county of his residence. Por the cause to be triable elsewhere the plaintiff must bring himself clearly within the terms of some statutory exception.”

Lummis v. Lummis

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BARNARD, P. J.

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