Rosenstock v. Rosenstock

Opinion

KINGSLEY, J. This is an appeal from an order of the superior court granting defendant’s motion to quash the service of summons on him.

On February 20, 1970, defendant (husband) was granted a decree of divorce by a New York court, which decree is silent as to custody or support. On March 12, 1970, plaintiff (wife) was granted a decree by a California court (entered nunc pro tunc as of February 28, 1970) granting her petition for dissolution of her marriage to defendant. The decree, inter alia, gave her custody of the two minor children of the parties and made provision for her support and for support of the children. Thereafter, as a result of a continuing dispute over child custody, the parties executed, in New York, on April 16, 1970, an agreement which granted child custody to the wife, made provision for her support and for support of the children, and which, as defendant construes it, immunized defendant against service of process on him, in California, in any action involving the respective [849]decrees or the marital dispute, but permitted plaintiff to seek, in New York, a decree determining which, if either, of the divorce decrees was valid.1

On July 29, 1970, plaintiff filed the instant action, in California, seeking, among other relief, an adjudication of the validity of her earlier California decree of dissolution. On the same day, defendant was served, personally, in California, with the summons and complaint in that action. He countered with a notice of motion captioned as follows:

“Special Appearance

“Notice of Motion to Quash Service of Summons and Complaint, for Attorney’s Fees, Transportation Expenses and Costs, Points and Authorities, Declaration of Mark E. Rosenstock, Jr., and Affidavit of Michael F. Erdheim”

and reading as follows:

“Please Take Notice that on September 8, 197(1, at 9:00 a.m., or as soon thereafter as counsel can be heard, in Department 66 of the above entitled Court, defendant, Mark E. Rosenstock, Jr., appearing specially in the above entitled action for the sole purpose of this motion, will move the Court for its order quashing and setting aside the service of the summons [850]