Maloney v. Maloney

MOORE, P. J.

The question for decision is whether the superior court in an action for divorce filed by the husband may make an order against him relative to the custody of the minor children, after he had departed from the state with the children.

On January 6, 1944, plaintiff filed his complaint for divorce and requested that custody of the two minor children be , granted to himself and defendant jointly and that the court .make “an order directing the plaintiff to pay a reasonable amount for the support and maintenance of said minor children.” The cross-complaint was filed on January 25th. Defendant alleged the extreme cruelty of her husband and prayed . for divorce, for the sole, custody of the children and for an order compelling plaintiff to pay for their support.

The last time defendant saw her children was on February 19, 1944. After that time plaintiff took the children to the State of Nevada and there instituted action for divorce and caused notice thereof to he served upon his wife in the city of Los Angeles. Plaintiff absented himself from the trial in the court below. Findings were filed in accordance with the alle,gatipns ;of the,, cross-complaint .awarding the custody of the minor children to the defendant and ordering plaintiff to pay defendant $80 per month for their support.

The appeal is grounded upon the sole proposition that “a court has no jurisdiction to award the custody of . children when the children are not physically present within the state” at the time the decree is entered. 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

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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. This fallacious contention is based upon an erroneous interpretation of those decisions which have clearly defined the powers of a court over persons within, as contradistinguished from its powers over persons without, its jurisdiction, or who have had notice of the action only by substituted service.