Opinion
Rehearing Denied May 20, 1927.
Hearing Granted by Supreme Court June 18, 1927.
Application by William H. Moore for certiorari to review an order of the Superior Court in and for City and County of San Francisco, John J. Van Nostrand, Judge, modifying final decree of divorce. Order affirmed.
COUNSEL
Stanislaus A. Riley, of San Francisco, for petitioner.
Leo A. Murasky and R. F. Mogan, both of San Francisco, for respondents.
OPINION
TYLER, P. J.
Petition for a writ of review. It appears therefrom: That on the 8th day of April, 1914, the superior court in and for the city and county of San Francisco made and entered an interlocutory judgment and decree of divorce in favor of plaintiff and against defendant in an action entitled Alyce Moore, Plaintiff, v. William H. Moore, Defendant. That in and by said decree the care, custody, and control of the two minor children, the issue of the marriage, was awarded to plaintiff, with permission to defendant to visit them at reasonable times. The community property of the parties was awarded to plaintiff, and defendant was ordered to pay to her the sum of $30 per month for the support and maintenance of the children, and the further sum of $12.50 at stated intervals for necessary clothing. Thereafter, on April 12, 1915, a final decree was entered dissolving the marriage and restoring the parties to the status of single persons. This decree reiterated the provisions as to the custody of the children, and the payments to be made by defendant for their support and maintenance. Petitioner herein was represented by E. G. Ryker, Esq., in the action referred to, up to and until after the entry of the final decree, at which time he ceased to represent petitioner. That on September 8, 1926, said Ryker was served with a notice of motion reciting that plaintiff would, on September 24, 1926, move the court for an order amending the final decree of divorce by directing defendant to pay plaintiff the sum of $60 per month for the support and maintenance of the minor children, and the further sum of $50 at stated intervals to assist in the purchase of their clothing. That on November 5, 1926, said Alyce Moore, in person and by counsel, appeared before the superior court, whereupon the following proceedings were had: A notice of special appearance was served upon plaintiff by counsel representing petitioner and filed with the clerk. The special appearance recited that it was made for the limited purpose of moving the court to quash the attempted service of the notice of motion, upon the ground that it had not been legally made, and the court had therefore acquired no jurisdiction to entertain it or make any order in the premises. In support of said objection counsel representing petitioner read and filed an affidavit of E. G. Ryker, petitioner’s former attorney, in which it was recited that his employment as attorney for petitioner had ceased at the time of the entry of the final decree, and that he was not the attorney for petitioner at the time of the service of the notice of motion. Thereupon the plaintiff in the action offered in evidence an affidavit of service of said motion upon petitioner herein. This affidavit recited that a copy of the notice of motion had been mailed to petitioner at his residence in Portland, Or., in which state petitioner has resided since the year 1917. Thereupon the court overruled the objection to its jurisdiction, and proceeded to hear and determine the motion. It appeared in evidence that one of the children, a son, had reached his majority at the time of the hearing. Thereafter, in November, 1926, the court made and entered its order modifying the final decree by allowing the plaintiff $50 for the maintenance and support of the daughter, a minor. It is under these facts that it is claimed that in hearing the motion for modification of the terms of the final decree the court exceeded its jurisdiction. It is argued that no proper service of the notice of motion was made upon petitioner, for the reason that at no time since a period long antedating the 8th day of September, 1926, had he been within the state of California, or within the territorial jurisdiction of the court, and that the only service alleged or relied upon so far as petitioner is concerned was the service by mail addressed to him at the city of Portland, state of Oregon, a place beyond the jurisdiction of the court. That no service was effected or acquired by leaving a copy of the notice of motion at the office of his former attorney, for the reason that he had no authority to represent him at any time subsequent to the entry of the final decree. With reference to the attempted service by the mailing of the copy of the notice of motion to petitioner in the foreign state, we are cited to such cases as Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; De La Montanya v. De La Montanya, 112 Cal. 101, 44 P. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165, to the effect that as a decree in alimony being in the nature of a judgment in personam, a court must acquire jurisdiction of the person by a personal service of process, and that such process cannot be served beyond the confines of the state to a sister state, so as to justify a personal judgment based upon such service. See, also, Johnson v. Superior Court, 63 Cal. 578; Hobbs v. Tom Reed Mining Co., 164 Cal. 497, 129 P. 781, 43 L. R. A. (N. S.) 1112. Counsel for respondent has not favored us with a brief upon the subject.
It is well established, however, that a decree for maintenance is allowed the wife in recognition of the husband’s liability to support his children, an obligation which is personal, and, since a decree of this character is strictly one in personam, it must follow that such a decree against a nonresident is void, unless he has appeared in person or by attorney, or has been personally served with process within the territorial jurisdiction of the court. A discussion of this question, however, or of the question of the powers of a court over the res within the jurisdiction, when the proceeding becomes one quasi in rem, are questions that we do not think are in any manner involved in the instant proceeding. In divorce actions the statute expressly provides that a decree for the custody and maintenance of minors may be modified or vacated at any time as may seem necessary or proper, Civ. Code, § 138. The propriety of modification in this particular, as well as the extent thereof, because of a change in the circumstances of the parties, rests largely in the discretion of the trial court. A decree need not reserve this right of modification. In such cases it is not final as a matter of law because it does not purport to be final and conclusive as a matter of fact. This reservation by reason of the statute constitutes the order an unfinished determination of the judicial mind; that is, the court has not completely disposed of the case. The power of the court not having been exhausted, it has the right and power to exercise such unexhausted portion of its power in such manner as changed conditions and circumstances of the case may require or indicate, to be just. This being so, no new service of process is necessary to confer jurisdiction. In such a case the court does not undertake to confer power upon itself. It merely exercises the unexhausted portion of the jurisdiction it already has. The decree is a continuing one, and the jurisdiction of both the parties and the subject-matter remains so long as there is a minor child whose welfare and maintenance are provided for in the decree. Ruge v. Ruge, 97 Wash. 68, 165 P. 1063, L. R. A. 1917F, 721. And this retention of the power of modification exists, notwithstanding that either of the parties may, after the entry of the decree, and before the modification, has become a resident of another state. The decree being under the control of the court, and jurisdiction not having been lost, a modification thereof is binding upon the parties wherever they may be. Andrews v. Andrews, 15 Iowa, 425. Once a judicial proceeding is commenced with jurisdiction over the person of the party concerned, it is within the power of the court to bind him by every subsequent order which the court retains jurisdiction to make (McSherry v. McSherry, 113 Md. 395, 77 A. 653, 140 Am. St. Rep. 428), and this notwithstanding the order is made after the removal from the state of the party affected by the supplemental order (Laing v. Rigney, 160 U.S. 531, 16 S.Ct. 366, 40 L.Ed. 525). Nor is there any merit in the further contention that the order is void for want of proper notice. Petitioner was fully advised as to the pendency of the motion, and appeared for the purpose of questioning the jurisdiction of the court to hear the application. Evidence was taken upon the hearing, and he had full opportunity to be heard. As above indicated, the court was not attempting to acquire jurisdiction over the person of the defendant under the notice, for it already had jurisdiction, and petitioner was given all the notice possible that the court intended to exercise its jurisdiction. Any other conclusion would be to say that, the court having jurisdiction, it was without power to exercise the same. Moreover, section 1015, Code of Civil Procedure, provides that, when a plaintiff or defendant, who has appeared, resides out of the state, and has no attorney in the action or proceeding, service may be made on the clerk for him. The notice of motion was filed with the clerk. For the reasons given, the order is affirmed.
We concur: KNIGHT, J.; CASHIN, J.