44 Cal. 2d 465, 283 P.2d 19 (1955)
Ruth M. Worthley and Edward J. Worthley were married in New Jersey in March 1943 and separated in November 1946.1 In an action for separate maintenance in which the defendant appeared personally and by counsel, the New Jersey Court of Chancery entered a decree on May 19, 1947, ordering the defendant to pay nine dollars a week for the plaintiff's support.2
About ten months after the decree was entered, the defendant left New Jersey for Nevada.3 In March 1948 he commenced an action for divorce in that state.4 Although the plaintiff was served in New Jersey with summons and a copy of the complaint in the Nevada action, she did not appear therein.5 On July 7, 1948, the Nevada Second Judicial District Court granted the defendant a divorce.6 The Nevada decree contained no provision for alimony.7 The defendant had paid all of the sums due under the New Jersey decree at the time the divorce was granted but made no further payments thereafter.8
On November 16, 1951, the plaintiff commenced this action in the Superior Court of Los Angeles County, the county of the defendant's present residence.9 She alleged that the New Jersey decree had become final and had never been vacated, modified, or set aside and that the defendant was delinquent in his payments thereunder in the amount of one thousand eighty-nine dollars.10 She sought a judgment for the accrued arrearages and asked that the New Jersey decree be established as a California decree requiring the defendant to pay her nine dollars a week until further order of the court.11 The defendant answered the complaint by a general denial and by alleging as an affirmative defense that the Nevada divorce decree had terminated his obligations under the earlier New Jersey separate maintenance decree.12
On the defendant's motion, the affirmative defense was tried first under the procedure established by section 597 of the Code of Civil Procedure.13 The trial court concluded that the Nevada decree dissolved the marriage and was therefore a bar to the maintenance of an action to enforce the defendant's obligations under the New Jersey decree.14 The plaintiff appeals from the judgment barring further prosecution of this action.15
Whether the dissolution of the marriage by the Nevada divorce decree terminated the defendant's obligations under the New Jersey separate maintenance decree?16
The effect of the dissolution of the marriage on defendant's preexisting obligations under the New Jersey maintenance decree must be determined by the law of New Jersey.17 Under New Jersey law, a decree for maintenance is not superseded by a judgment of a foreign state where jurisdiction has only been obtained by publication.18 The judgment must be entered in an ex parte proceeding in which in personam jurisdiction over the wife to whom the maintenance decree runs was not obtained.19
No. The Nevada divorce decree was granted after service on plaintiff in New Jersey without her appearance, so personal jurisdiction over plaintiff was not obtained.20 Applied to the facts of the New Jersey decree entered after defendant's personal appearance, the rule from Isserman v. Isserman establishes that the obligations were not terminated by the dissolution effected by the Nevada court.21
The dissolution of the marriage by the Nevada divorce decree did not terminate the defendant's obligations under the New Jersey separate maintenance decree.22
Whether and to what extent the obligations under the New Jersey decree are enforceable in California?23
Foreign-created alimony and support obligations that are prospectively and retroactively modifiable are enforceable in this state.24 In an action to enforce a modifiable support obligation, either party may tender and litigate any plea for modification that could be presented to the courts of the state where the decree was originally rendered.25
Yes. The New Jersey decree is both prospectively and retroactively modifiable under N.J.S. 2A:34-23, and the defendant resides in Los Angeles County where the action was commenced on November 16, 1951.26 With both parties before the court, the California courts must enforce the obligations while affording the defendant an opportunity to litigate modification on the merits, consistent with the policy of the Uniform Reciprocal Enforcement of Support Act.27
The obligations under the New Jersey decree are enforceable in California, with either party permitted to litigate modification.28
Related opinions on this issue
Joined by Shenk, J., And Schauer, J.
Justice Spence dissents because prior to this decision California had never sanctioned modification by its courts of any decree of a sister state for the support of a wife.29 He would adhere to the established law of the state and avoid the confusion that would result from disapproving prior cases.30 Furthermore, the New Jersey judgment is modifiable retroactively as well as prospectively under the law of New Jersey.31
Enforcement and modification by California courts would result in confusion worse confounded because the courts of each of several states might be called upon to modify the same decree.32 The New Jersey decree should be made final in that state before the courts of this state should be compelled to attempt its enforcement or modification.33