Clark v. Clark

JEFFERSON, J.

This is an appeal by defendant, the former husband of plaintiff, from an order made in a proceeding under the Uniform Reciprocal Enforcement of Support Act (Code Civ. Proc., §§ 1650-1690), commanding defendant to make monthly payments to plaintiff for the support of the parties’ three minor children. No dispute exists as to the facts presented, the record consisting of an agreed statement on appeal.

Proceedings under the reciprocal support act were initiated by plaintiff on November 29, 1961, in a court in the State of New Jersey, upon her filing of a complaint against defendant and declaration seeking support for herself and their minor children.

1

The matter was certified to the Superior Court of Los Angeles County, which issued a citation commanding defendant to appear and show cause why he should not be ordered to pay the support requested. After two unsuccessful attempts, a citation was served upon defendant and, after initially failing to appear as ordered on November 20, 1962, he appeared on December 17, 1962. At that time defendant presented evidence that he had been previously awarded an interlocutory judgment of divorce from plaintiff (on November 21,1962) in the Los Angeles Superior Court, in a proceeding in which plaintiff made a general appearance, and that the decree gave him custody of the minor children. For this reason

[621]

the court dismissed the aforementioned order to show cause, without prejudice.

2

On September 20, 1963, the reciprocal support action was reactivated with the issuance of another citation by the superior court ordering defendant to again appear. A hearing was held thereon on November 12, 1963, and, after the submission of additional points and authorities, on January 24, 1964, the court made its order that defendant contribute the sum of $125 per month for the support of his three minor children commencing on November 25, 1963, the sum to be increased to $150 per month commencing on June 10, 1964. It is from this order that defendant appeals.

Defendant contends that inasmuch as, prior to the support order, he was granted a divorce from plaintiff which awarded him the custody of the children in a proceeding in which plaintiff appeared generally and thus submitted herself to the jurisdiction of the court, that the issue of support was res judicata from the time of the judgment in the divorce action. It is also argued that the order appealed from is improper since it discourages adherence to the award of custody previously made and encourages plaintiff to flout that order and to continue her disregard of judicial procedure.