In Re Marriage of Tusinger

Opinion

GILBERT, J.

Appellant Gary Tusinger appeals from an order of the superior court denying his motion to quash service of summons and set aside a default judgment.

We affirm the order of the trial court which found that appellant had been properly served.

Facts

Respondent Rebecca Tusinger filed a petition in California to dissolve her marriage to appellant on May 6, 1977. She mailed the summons and petition to appellant’s address in Arkansas, and requested a return receipt in accordance with Code of Civil Procedure section 415.40 which provides in pertinent part: “A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt.”

The summons was filed with the court on June 28, 1977, together with the return receipt, signed by appellant’s mother, Margaret Tusinger. Respondent ultimately obtained a default judgment, awarding her custody of

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the minor children, with the issue of support reserved. On November 23, 1977, a final judgment was entered.

Meanwhile, back in Arkansas appellant filed divorce proceedings, effecting service of process by publication. In June of 1978, respondent filed an order to show cause re child and spousal support, and personally served appellant in California when he was visiting the children. Appellant did not appear, and the court granted the relief prayed for by modifying the interlocutory judgment so that respondent was awarded, among other things, child support in the amount of $200 per month per child.

When the district attorney sought to collect child support arrearages in the amount of $23,250, appellant filed his motion to quash service of summons, which was heard on February 10, 1984. The trial court found the service to be proper and denied the motion.

Discussion

Appellant contends that service of the summons and petition was improper because he was not personally served. Although Code of Civil Procedure section 415.40 allows out of state service by mail, he argues, Code of Civil Procedure section 417.20 requires actual delivery to the person to be served.