Mikulski v. Mikulski

California Court of Appeal Dec 23, 1969 No. Civ. 34402Published

Before: Lillie

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Holding. A plaintiff who initiates a divorce action and requests child support orders submits himself to the court's in personam jurisdiction, granting the court the power to enter a personal judgment against him for child support regardless of the defendant's location.

Issues

Whether a court has in personam jurisdiction to order a plaintiff husband to pay child support when he initiated the divorce action and requested such support in his pleadings.

Disposition. reversed

Quotations verified verbatim against the opinion

“By the very act of commencing his action plaintiff submitted himself to the jurisdiction of the court and the court thereafter had the power to enter an effective judgment for or against him in personam.”

“Plaintiff cannot question the jurisdiction which by his own act he conferred.”

“It is readily apparent that jurisdiction to make the order depended not on any personal jurisdiction over defendant wife but on the court’s jurisdiction over plaintiff husband.”

Opinion

LILLIE, J.

Plaintiff husband sued defendant for divorce alleging that their two minor children reside with defendant in Michigan and that $30 per week is a reasonable sum to pay for child support,

and praying for a divorce, award of child custody to defendant and for an order that he continue making child support payments of $15 per week for each child. Plaintiff obtained an order for publication of summons and complaint, and filed affidavit of service by mail on defendant and declaration of publication of summons. Defendant did not appear and her default was entered; plaintiff personally appeared at the hearing and an interlocutory decree of divorce was entered March 22, 1965. The judgment in part provides for an award of child custody to defendant and an order requiring plaintiff to pay $15 per week per child. The final decree incorporating the provisions of the interlocutory judgment was entered February 28, 1966.

On June 24, 1968, defendant filed application for issuance of writ of execution setting up plaintiff’s default of $3,060 in child support payments since July 5, 1966. Plaintiff moved to quash writ of execution and restrain further levy on the ground the court had no jurisdiction to make the child support order and the only effective order in the judgment was that granting

[1049]

the divorce. The motion was granted on the sole finding “that judgment for child support was made without in personam jurisdiction.” Defendant wife appeals from the order.

Appellant’s sole claim is that the superior court had

in personam

jurisdiction over plaintiff and the power to render a personal judgment against him. Apropos is the court’s statement in

Maloney

Maloney,

67 Cal.App. 2d 278 [154 P.2d 426]: “In other words, plaintiff invokes the jurisdiction of the superior court of this state to adjudicate his grievance and to determine the question of the custody of his children and then denies that the same court has jurisdiction to make an order upon the subject presented by his own pleading. In this he is altogether out of line with the traditional concept of justice, of the powers of courts whose aid he seeks and of the rights of his adversary whom he has charged as unfaithful to her obligations. . . .

Mikulski v. Mikulski

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LILLIE, J.

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