PAUL W. SAMPSELL, JR., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, 32 Cal. 2d 763

TRAYNOR, J. Petitioner, plaintiff in a divorce action pending in respondent court, seeks a writ of mandamus to compel respondent to hear his application for an order pendente lite awarding him custody of the minor child of plaintiff and defendant. The parties to the divorce action were married in 1941 and have one child, born on September 13, 1944. The child lived with both parents in this state in the county of Los Angeles until June 3, 1946, when the parents separated.

The child continued to live in California with defendant, his mother, until October 25, 1946, when she left California taking the child with her. Thereafter they lived in Nevada until June 7,1947. Since that date they have lived in Utah. Plaintiff filed a complaint against defendant in respondent court on January 2, 1947, seeking a divorce, custody of the minor child, and a division of the community property.

The substance of plaintiff’s complaint is as follows: Defendant took the child out of the state without plaintiff’s knowledge or consent and established a temporary abode for herself and the child in a motor court in Las Vegas, Nevada. On December 11, 1946, defendant filed an action for divorce in Nevada, fraudulently claiming to be domiciled within that state, although in fact she intended to remain there only long enough to obtain a divorce and then to marry William Holt, a resident of Utah. Plaintiff was not personally served with process in the Nevada action.

Plaintiff claims that he is a fit person to have custody of the child and that defendant is not. Defendant was not personally served in California in the California divorce action; but on April 4, 1947, she appeared through her attorney and filed an answer. In her answer she alleged that on February 4, 1947, she obtained a Nevada decree of divorce and was also awarded custody of the child. She also alleged that she is entitled to all of the community property of the parties and requested the court to award this property to her.

On July 8, 1947, plaintiff applied to respondent court for an order pendente lite awarding him custody of the child pending trial of the California action. Plaintiff’s affidavit states that plaintiff and defendant were residents of the county of Los Angeles, State of California, when defendant took the child out of the county of Los Angeles on October 25, 1946, without plaintiff’s knowledge and consent; that defendant informed him before she left that she intended to obtain a Nevada divorce and then to marry William Holt, a resident of Utah.

Before defendant had obtained a Nevada divorce, plaintiff, on January 2, 1947, brought an action for divorce and custody of the minor child of the parties. At that time, under the provisions of Government Code,

section 244, all three persons, plaintiff, defendant, and the minor child, were domiciled in California. Subsequently on February 4th, 1947, defendant obtained an allegedly invalid Nevada divorce. On June 7, 1947, she married William Holt, and since that time she and the child have been living in Utah. Plaintiff filed the application for an order pendente lite in respondent court on July 7th, 1947, alleging the foregoing facts and that neither defendant nor William Holt are fit persons to have the custody of the child and that he has in effect been denied even the right to see his child.

An order to show cause why the order requested should not be issued, or, in the alternative why plaintiff should not have reasonable visitation rights, was served on defendant’s attorneys, who had made a general appearance in the principal action. On the date on which the order to show cause was returnable defendant appeared through her attorney and made a motion to dismiss the proceeding with respect to the custody of the child, on the ground that the court has no jurisdiction.

Defendant contended that respondent court lacks jurisdiction because the child was not in the State of California at the time of the hearing and has not been here at any time since the plaintiff filed his divorce complaint on January 2, 1947. The court granted defendant’s motion and dismissed the order to show cause “for lack of jurisdiction.” Plaintiff thereupon filed a petition for a writ of mandamus to compel respondent court to proceed with the hearing.

Respondent court and defendant, as real party in interest, jointly filed points and authorities in opposition to the petition for writ of mandamus, stating that, “The respondent court refused to proceed with the hearing of the application to determine custody of the child on the sole ground that it had no jurisdiction to do so, based upon the affirmative facts set forth in the affidavit of petitioner in support of the order to show cause, which affidavit of the petitioner showed on its face that defendant and the minor child were physically outside of the State of California before the commencement of the action, and at all times subsequent to the commencement of the action. . . . “The attorney for the defendant, Martin S.

Ryan, appeared at the date set for the hearing on the order to show cause re custody, and at said time made a motion on behalf of the defendant to dismiss the order to show cause for lack of jurisdiction. This motion was granted because it appeared that the court did not have jurisdiction, for the reasons hereinabove set forth and by reason of the law pertaining to the factual situation, as hereinafter cited. “Petitioner states that the issuance of a writ of mandate is proper wherever the court refuses to exercise jurisdiction in a proceeding over which it has jurisdiction.

There seems to be no question but what this is the law, but it does not apply in this case for the reason that it is the contention of the respondents that respondent court at no time had jurisdiction to make any order regarding the custody of the minor child. . . . “The court not having jurisdiction originally in the case at bar nor jurisdiction at the time of the hearing of the order to show cause, the respondent court rightfully granted the motion of respondent Gladys J.

Sampsell because the respondent court could not assume jurisdiction as appeared in the pleadings when they showed to the contrary.” (Italics added.) This court granted the alternative writ in order to determine whether the respondent court has jurisdiction to continue with the proceeding. Respondent court and defendant, as real party in interest, have jointly filed a demurrer to the alternative writ on the ground that the superior court does not have jurisdiction to make a custody award of a minor child when that child has not been within the state during the pendency of the action.

The question has arisen whether mandamus is the proper remedy by which plaintiff may test the correctness of the trial court’s ruling that it has no jurisdiction over the custody of the child. It has been suggested that the rule laid down in Lincoln v. Superior Court, 22 Cal.2d 304 [139 P.2d 13], is controlling on this question and that mandamus is not available.

In the Lincoln case the question of the availability of mandamus depended on “two controverted issues of fact which are to be determined upon the sufficiency of the evidence (the record of the proceedings in the trial court) to establish the allegations of the petition. The dispute is not as to the substance, but only as to the effect of such evidence.

Such issues are: (!)• The petition alleges (and the answer in proper form denied all the averments) ‘That said superior court refused to hear or consider, and has not heard or considered said motion ... or said order to show cause, and has held that it has no jurisdiction to hear or determine said motion or determine whether said plaintiff is entitled to relief thereby sought and will not do so unless required by order and mandate of this Court; (2) the petition alleges (and the answer in proper form denies the averments) ‘That petitioner has no plain, speedy or adequate remedy at law. . . .’ We find the record insufficient to sustain petitioner in either of the controverted issues.” (Lincoln v.

Superior Court, supra, at 306-307.) In the present case we have no controverted issues of fact.

The plaintiff has alleged, and the respondent court and defendant have conceded, that the trial court did not give a hearing on the merits but “refused to proceed with the hearing on the application to determine custody of the child on the sole ground that it had no jurisdiction to do so, based on the affirmative facts set forth in the affidavit of petitioner in support of the order to show cause, which affidavit of petitioner showed on its face that the defendant and the minor child were physically outside of the State of California before the commencement of the action, and at all times subsequent to the commencement of the action. ...” (Respondent’s Points and Authorities, pp. 1-2.) This court in the Lincoln case determined that petitioner had been given a hearing on the merits.

In that case the petitioner had commenced an action against her husband for separate maintenance in a California superior court, and that court issued an order to show cause with reference to temporary support. The defendant appeared on the date set for hearing and filed an affidavit, supported by the exemplified records of a Virginia court, showing that petitioner had submitted himself to the jurisdiction of the Virginia court in an action for divorce and that an order for her support made by the Virginia court in that action was being complied with by defendant.

The defendant thereupon filed a motion, based on these facts, to vacate and set aside the order to show cause on two grounds:

(1) Lack of jurisdiction to proceed because of the pendency of the Virginia action; (2) the Virginia proceeding was res judicata. This court held that “Neither of such grounds raises a jurisdictional point. . . . The fact that the plaintiff was then receiving support from the defendant pursuant to a court order was, however, material evidence upon the hearing. (See Smith v.

Smith (1905), 147 Cal. 143 [81 P. 411].) The order to show cause came on for hearing upon the complaint and plaintiff’s affidavit upon which the order had been issued, and upon defendant’s showing in opposition as heretofore set forth. “After receiving the evidence of the parties, as above related, the superior court made an order which is reflected in its minutes as follows: ‘ Order to Show Cause re Alimony Pendente Lite, Costs, Attorney’s Pees and Restraining Order comes on for hearing; . . .

Defendant’s motion to quash and Dismiss is granted.’ (Italics added.) Petitioner now contends that the trial court, by the action above related, refused to exercise its jurisdiction to hear and determine the order to show cause, and seeks the mandate of this court to compel the superior court ‘at a specified time and place, to set said order to show cause . . . for immediate hearing and to determine said matter on its merits.’ The answer to petitioner’s demand is that the superior court has exercised its jurisdiction and has conducted a hearing on the merits.

Whether its order was erroneous is not now before us.” (Ibid, at 308, italics by the court.) “In the case out of which this proceeding arose, the defendant’s motion to dismiss and the evidence which he presented to the trial court did not constitute a mere objection to the jurisdiction of such court. On the contrary, such procedure was a challenge on the merits to the plaintiff’s application and called for an affirmative exercise of jurisdiction by the court. . . . “As shown by the record, the trial court conducted a hearing on the mooted order to show cause.

It had before it and received the proofs both of plaintiff and of defendant. It considered such proofs, gave to them what it thought was their proper legal effect, and made its order dismissing the proceeding. This was, jurisdictionally, a complete trial of such proceeding.” (Ibid, at 314, italics added.) In the present case the defendant presented no evidence or counteraffidavits.

Her motion was not a challenge on the merits; it was based on the sole ground that the court lacked jurisdiction because the child was not physically present within the State of California at the time the action was commenced or at any time during the pendency of the action. The trial court heard no evidence and refused to consider the merits of the case before it; it looked at the affidavit of petitioner solely to determine its own jurisdiction.

If we were to hold that the dismissal for lack of jurisdiction based on the facts stated in petitioner’s affidavit is a determination on the merits precluding the issuance of mandamus, the following cases among others would have to be overruled: Temple v. Superior Court, 70 Cal. 211 [11 P. 699]; Hennessy v. Superior Court, 194 Cal. 368 [228 P. 862]; Times Mirror Co. v. Superior Court, 3 Cal.2d 309, 312 [44 P.2d 547]; Cahill v. Superior Court, 145 Cal. 42, 44-45 [78 P. 467]; Miller v. Municipal Court, 22 Cal.2d 818, 852 [142 P.2d 297]; Levy v.

Superior Court, 15 Cal.2d 692 [104 P.2d 770, 129 A.L.R. 956]; Katenkamp v. Superior Court, 16 Cal.2d 696, 697 [108 P.2d 1]; Balconades Ballroom v. Superior Court, 109 Cal.App. 612 [293 P. 631]; Smith v. Superior Court, 21 Cal.App.2d 160 [69 P.2d 176]; Archer v. Superior Court, 81 Cal.App. 742 [254 P. 939]; MacPherson v. Superior Court, 22 Cal.App.2d 425, 432 [71 P.2d 91]; see also Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 477 [114 P. 978]; cases in other jurisdictions collected in 4 A.L.R. 582; 82 A.L.R. 1163; Ferris, Extraordinary Legal Remedies, § 300. In the early case of Temple v.

Superior Court, 70 Cal. 211 [11 P. 699], this court held that mandamus should issue to compel a trial court to hear and determine a proceeding to have a person adjudged guilty of contempt, although the trial court had dismissed the proceeding “on the ground of want of jurisdiction” because the case came within Code of Civil Procedure

section 336. The court stated in that case that “We have examined the record, and are of the opinion that the matter is within the jurisdiction of the court. The facts stated bring the ease clearly within

section 1210 of the Code of Civil Procedure, and under such circumstances the court cannot, by holding without reason that it has no jurisdiction of the proceeding, divest itself of jurisdiction, and evade the duty of hearing and determining it.” (70 Cal. 211-212.) That case has been followed in innumerable cases including Hennessy v. Superior Court, 194 Cal. 368 [228 P. 862], where this court granted mandamus to hear a motion to tax costs, when the trial court denied the motion for lack of jurisdiction.

The court considered the question of the availability of mandamus at length and quoted the following language from Cahill v. Superior Court, 145 Cal. 42, at 46 [78 P. 467], “The code provides that the writ of mandate may be issued to compel the performance of

an act which the law specially enjoins, as a duty resulting from an office. (Code Civ. Proc. sec. 1085.) The law specially enjoins upon the superior court, and upon the judge thereof, the duty of hearing and' determining all matters which are within its jurisdiction and which come properly before it. The motion under consideration did come properly before that court, but the judge decided, as a matter of law . . . that the court had no power in any case to make orders of the kind there applied for, and upon that ground only refused to proceed to the merits of the application.

If the person holding office could thus decide what were the duties pertaining thereto which the law specially enjoins him to perform, the writ of mandate would be practically useless. The decision refusing to act which gives occasion for the writ would also furnish sufficient cause for denying it.” Nor is the opinion of the District Court of Appeal in Brock v. Superior Court, 119 Cal.App. 5, 6 [5 P.2d 659], inconsistent with these principles. In the Brock case, the trial court hd entered an order denying an application for attorney fees, costs, and temporary support of a minor child.

The District Court of Appeal stated that “Petitioner claims that the court has refused to exercise its jurisdiction in the matter, but the facts stated in the petition show the contrary. When the order to show cause came before the court the matter was submitted upon a stipulation of facts. Thereupon the court entered an order denying the requested relief, ‘on account of this Court not having jurisdiction to award temporary attorney fees, costs or support on two grounds: that the child is not within the jurisdiction of this Court, also that provisions in

Section 137 Civ. Code., in re Attorney’s fees, costs and support money do not apply in this case. ’ ” (119 Cal.App. 5, 6.) The trial court did not dismiss the proceeding but evidently gave a full hearing on the stipulated facts. It denied the relief requested by the applicant on the ground that it lacked authority to give the relief under the circumstances of the case. Since the petitioner was afforded the same hearing that he would have been entitled to had the trial court entertained a different theory as to its jurisdiction, he was not entitled to mandamus to compel a new hearing.

Mandamus is available to compel the court to give a full hearing in the case before it, although it is not available to inform the trial court as to how it should rule with respect to the merits of the ease. (Hilmer v. Superior Court, 220 Cal. 71, 73 [29 P.2d 175].) It follows that if the trial court has given the petitioner the full hearing to which he is entitled, mandamus will not ordinarily lie merely to correct the decision reached by the court, whether its decision be based on an erroneous conception of its own jurisdiction or an error of law.

In thé present case, however, the respondent court has conceded that it did not give plaintiff a full hearing on his application, but dismissed the proceeding and refused to proceed with the hearing. This court should therefore issue the writ unless there is “a plain, speedy, and adequate remedy in the ordinary course of law.” (Code Civ. Proc. § 1086.) Nor does the fact that plaintiff might have appealed from the order of dismissal necessarily preclude his resort to mandamus. “The remedy by appeal, conceding that there is such, is not always an answer to a petition for mandamus.

This writ must be issued when ‘there is not a plain, speedy, and adequate remedy in the ordinary course of law’ (sec. 1086, Code Civ. Proc.); that the right of appeal is not always a speedy or adequate remedy is well settled.” (Christ v. Superior Court, 211 Cal. 593, 595 [296 P. 612]; Lloyd v. Superior Court, 208 Cal. 622, 631 [283 P. 931].) Thus, in Hennessy v. Superior Court, supra, 194 Cal. 368, 374, this court held that “Conceding the order refusing to tax costs to be an appealable order, that alternative would not of itself be a sufficient reason for holding that remedy exclusive.” (See also Archer v.

Superior Court, 81 Cal.App. 742, 745 [254 P. 939], Other cases where the dismissal was appealable include Times-Mirror Co. v. Superior Court, 3 Cal.2d 309, 312 [44 P.2d 547]; Balconades Ballroom v.

Superior Court, 109 Cal.App. 612 [293 P. 631].) Plaintiff alleges that an appeal would not be an adequate remedy in this case because of the pendency of the. principal action for custody and divorce and because such an appeal would take at least a year, during which time' he would not only be deprived of the custody of his child but would be unable even to see the child, while the child would lose all recollection of his father.

It is unquestioned that in the principal action the trial court refused to grant petitioner a hearing with respect to the custody of the child regardless of the relative fitness of himself or the defendant and regardless of the interests of the child. This court has issued the alternative writ on the concessions of respondent that it was available if the court had jurisdiction. To deny the writ now on the grounds that plaintiff might appeal would require plaintiff to await the outcome of the principal action before perfecting his appeal.

Meanwhile, he would be deprived of the custody of his child and the right to see it without a hearing as to the propriety of a custody order or of the merits of his claim that defendant is unfit to have the care of the child. It therefore follows that the remedy of mandamus is available to plaintiff if respondent court had jurisdiction to determine the question of the custody of the child. The trial court unquestionably had jurisdiction over the parties, for by answering plaintiff’s complaint on the merits defendant waived any claim of lack of jurisdiction over her. (Code Civ. Proc. § 1014; Jardine v.

Superior Court, 213 Cal. 301, 304 [2 P.2d 756, 79 A.L.R. 291].) This appearance, however, did not confer jurisdiction on the court over the subject matter of the action, for such jurisdiction may not be waived by a party or conferred on the court by consent. (Taylor v. Taylor, 192 Cal. 71, 78 [218 P. 756, 51 A.L.R. 1074]; Harrington v. Superior Court, 194 Cal. 185, 191 [228 P. 15].) The question before this court, therefore, is whether respondent court has jurisdiction over the subject matter of the custody proceeding. (Dorman v. Friendly, 146 Fla. 732, 737 [1 So.2d 734]; Titcomb v.

Superior Court, 220 Cal. 34, 40 [29 P.2d 206].) It must be assumed that the child was domiciled in this state at the time of the commencement of the proceeding in the trial court whether the domicile of the child is based on that of the mother or that of the father. Defendant contends that the child was domiciled in Nevada on the grounds that defendant acquired a Nevada domicile and that the domicile of the child was that of the mother. Under the allegations of the petition, however, the mother was still domiciled in Los Angeles County, California, at the time the California proceeding was commenced.

Since defendant has demurred to the alternative writ, the allegations of plaintiff’s petition must be regarded as true. Moreover, plaintiff’s complaint and his affidavit in support of the application for an order pendente lite contained similar allegations, and respondent court has refused to take jurisdiction to determine the correctness of these allegations. Defendant, relying on De La Montanya v. De La Montanya, 112 Cal. 101 [44 P. 345, 53 Am.St.Rep. 165, 32 L.R.A. 82]; In re Chandler, 36 Cal.App.2d 583 [97 P.2d 1048]; and Maloney v.

Maloney, 67 Cal.App.2d 278 [154 P.2d 426], contends that regardless of the child’s domicile a court of this state has no jurisdiction of a child custody proceeding if the child is not physically present within the state at some time during the pendency of the action. Although there is language in the De La Montanya case, supra at 110-111, that is critical of the theory that the domicile of the child alone provides a satisfactory basis for jurisdiction of the subject matter since the child might be domiciled in this state without ever having lived here (cf. Titcomb v.

Superior Court, supra 220 Cal. at 42), the actual holding of that case relates to the question of personal jurisdiction over the parties. It was held that the question of custody is not solely one of status and cannot be decided by a court unless it has personal jurisdiction over both parents. It was further held that under the Fourteenth Amendment to the United States Constitution as construed in Pennoyer v.

Neff, 95 U.S. 714 [24 L.Ed. 565], constructive service was insufficient to give the court personal jurisdiction over a parent who was not present within the state although domiciled in California at the time of the commencement of the action. (Cf. Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357]; cases collected 126 A.L.R. 1474; Rest. Judgments § 16.) It is unnecessary to reexamine the holding of the De La Montanya ease with respect to the problem of personal jurisdiction, for the defendant in this case submitted herself to the jurisdiction of respondent court.

Defendant also relies on In re Chandler, supra, 36 Cal.App.2d 583, 585, for the proposition that jurisdiction over the subject matter of the custody of children in divorce actions depends on the physical presence of the children in the state. According to the opinion in that ease, however, the children were not only absent from the state but had become domiciled in Texas before the action was commenced. Defendant, although appearing in the divorce action, refused to obey an order of the court that he bring the children to California.

He was held in contempt by the trial court, but on petition for habeas corpus the district court of appeal ordered him discharged from custody on the ground that the order was void. The trial court lacked jurisdiction of the subject matter of the custody of the children, for they were domiciled and present in another state during the pendency of the action.

In the course of its opinion the court stated that “Respondent concedes that it is well settled that our courts have no authority to award custody of children not within their territorial jurisdiction ...” (In re Chandler, supra at p. 585.) Not only was reference to this concession unnecessary to the decision, but a similar statement in Warren v. Warren, 127 Cal.App. 231, 240 [15 P.2d 556] was disapproved by this court in Foster v. Foster, 8 Cal.2d 719, 729 [68 P.2d 719]. Both parties have relied on Maloney v.

Maloney, 67 Cal.App.2d 278, 280 [154 P.2d 426], In that case both parents and the child were domiciled in California and were actually living within this state until, during the course of a divorce action, the plaintiff left the state taking the children with him. It was held that the removal of the children did not deprive the trial court of jurisdiction to determine their custody.

Nor did the plaintiff, by leaving the state, deprive the court of personal jurisdiction over him. “The court thereafter had the power to enter an effective judgment for him or against him, in personam, relative to any substantial allegation of the pleadings. . . . Plaintiff cannot question the jurisdiction which by his own act he conferred. Although the children are beyond the territorial limits of California, they are still under the jurisdiction of the court below (Hersey v. Hersey, 271 Mass. 545 [171 N.E. 815, 818, 70 A.L.R. 518]), which attached at the time the suit was filed. ’ ’ (Maloney v.

Maloney, supra at 280.) Insofar as the foregoing statement from the Maloney case shows a submission to the personal jurisdiction of the court by the plaintiff it cannot be questioned. Defendant contends that the court also held that plaintiff submitted the subject matter of the children’s custody to the jurisdiction of the trial court. A party, however, cannot confer upon a court jurisdiction over the subject matter that it does not already have (Taylor v. Taylor, supra, 192 Cal. 71, 78; Harrington v. Superior Court, 194 Cal. 185, 191 [228 P. 15]).

The trial court in the Maloney case had jurisdiction over the subject matter because the children were domiciled and living in California at the time the action was commenced, and the mere physical absence of the children from the state during a part of the trial did not deprive the court of jurisdiction. In the present case the child was domiciled in this state at the time the action was commenced but was not living here.

Thus, neither the Maloney case nor the Chandler case are determinative of the question whether the domicile of the child in this case presents a sufficient basis for jurisdiction over the child's custody. Several theories have been advanced with respect to the correct basis for jurisdiction over the subject matter of a child custody proceeding. According to one theory jurisdiction over children’s custody is based on in personam, jurisdiction over the children’s parents. (Anderson v.

Anderson, 74 W.Va. 124, 126 [81 S.E. 706].) Another theory regards the question of custody as simply one of status and as such subject to the control of the courts of the state where the child is domiciled. (Rest. Conflicts, 117, 148; see Goodrich, Custody of Children, 7 Corn L.Q. 1, 2; 2 Beale, Conflict of Laws, p. 717; Dorman v.

Friendly, 146 Fla. 732, 740 [1 So.2d 734].) A third theory requires the child to be physically present within the state, on the ground that the basic problem before the court is to determine what the best interest of the child is, and the court most qualified to do so is the one having access to the child. (See Stumberg, Children and Conflict of Laws, 8 Univ.Chic. L.Rev. 42, 55-56; Stumberg, Conflict of Laws, p. 299; Sheehy v.

Sheehy, 88 N.H. 223, 225 [186 A. 1, 107 A.L.R. 635].) There is, of course, no question that the courts of a particular state have jurisdiction to determine the child’s custody if the court has jurisdiction in personam over both parents, and the child is both physically present and domiciled within the state. The court then has a substantial basis for determining not only the rights of the parents but what the best interest of the child is. All the basic elements in each of the foregoing theories are present. Difficulties have been encountered, however, when one or more of these elements are lacking.

It is apparent' that each of the foregoing theories, if regarded as exclusive tests of jurisdiction, ignores important considerations underlying the other theories. It would, however, be no solution of the problem to require all these elements to be present before a court could acquire jurisdiction. Unfortunately cases will arise where one or two elements are lacking, and some court must have jurisdiction in the interest of the child to make proper provision for its custody.

The principal difficulty with each of the theories as exclusive tests of jurisdiction is the difficulty inherent in any attempt to apply hard and fast rules of res judicata and conflict of laws to. the problem of child custody. The principal cases and most, of the secondary authorities have been concerned less with the question whether a court has jurisdiction than with the question whether the courts of other states are bound by the particular decision, when that jurisdiction has been exercised.

The respective.theories are based on the assumption that in order to achieve finality in this matter one court at one given time must have an exclusive right to determine the issue. “From a standpoint of expediency and of achieving socially desirable ends, there seems to be only one argument in favor of confining jurisdiction to a single state; that it will produce stability and discourage the crossing of state lines to avoid the effect of unpalatable custody decrees.” (Stansbury, Custody and Maintenance Law Across State Lines, 10 Law and Contemp.

Prob. 819, 830.) It is doubtful, however, whether the best interest of the child, the paramount consideration in custody proceedings, is served thereby. There is authority for the proposition that courts of two or more, states may have concurrent jurisdiction over the custody of a child. (Finlay v. Finlay, 240 N.Y. 429, 431 [148 N.E. 624, 40 A.L.R. 937]; Goldsmith v. Salkey, 131 Tex. 139, 145-147 [112 S.W.2d 165, 116 A.L.R. 1293]; Stafford v.

Stafford, 287 Ky. 804, 806 [155 S.W.2d 220].) In the interest of the child, there is no reason why the state where the child is actually living may not have jurisdiction to act to protect the child’s welfare, and there is likewise no reason why other states should not also have jurisdiction. As stated by Justice Cardozo in Finlay v. Finlay, 240 N.Y. 429, 431 [148 N.E. 624, 40 A.L.R. 937], “The jurisdiction of a State to regulate the custody of infants found within its territory does not depend upon the domicile of the parents.

It has its origin in the protection that is due to the incompetent or helpless. (Woodworth v. Spring, 4 Allen (Mass.) 321, 323; White v. White, 77 N.H. 26 [86 A. 353]; Hanrahan v. Sears, 72 N.H. 71, 72 [54 A. 702]; Matter of Hubbard, 82 N.Y. 90, 93.) For this, the residence of the child suffices though the domicile be elsewhere. (Matter of Hubbard, supra.) But the limits of the jurisdiction are suggested by its origin.

The residence of the child may not be used as a pretence for the adjudication of the status of parents whose domicile is elsewhere, nor for the definition of parental rights dependent upon status. (Cf. Kline v. Kline, 57 Iowa 386 [10 N. 825, 42 Am.Rep. 47]; Griffin v. Griffin, 95 Ore. 78 [187 P. 598]; Lanning v. Gregory, 100 Tex. 310 [99 S.W. 542, 123 Am.St. Rep. 809, 10 L.R.A. N.S. 690]; Blackinton v. Blackinton, 141 Mass. 432, 436 [5 N.E. 830, 55 Am.Rep. 484]; Matter of Standish, 197 App.Div. 176 [188 N.Y.S. 900].) Parents so situated must settle their controversies at home.

Our courts will hold aloof when intervention is unnecessary for the welfare of the child.” Thus, if the child is living in one state but is domiciled in another, the courts of both states may have jurisdiction over the question of its custody. It does not follow, however, that the courts of both states will exercise that jurisdiction and reach conflicting results. The courts of one state may determine that the other state has a more substantial interest in the child and leave the matter to be settled there.

On the other hand, if the jurisdiction of one state has been exercised over the child, there is no reason why, if the welfare of the particular child is a matter of real concern to the courts of another state, those courts may not also have jurisdiction, which might be exercised in the interest of the child “with respectful consideration to the prior determination of other courts similarly situated.” (Stansbury, 10 Law and Contemp. Problems, supra, at pp. 830-831. See Foster v. Foster, 8 Cal. 2d 719, 726 [68 P.2d 719]; Titcomb v.

Superior Court, supra, 220 Cal. 34, 39.) In any event, there is no reason why courts of one state should not be able to “assume with confidence that the courts of the other jurisdiction will act with wisdom and sincerity in all matters pertaining to the welfare of this child.” (Miller v. Schneider, (Tex.Civ.App.) 170 S.W.2d 301, 303.) The problem is not one of rendering custody decrees for the courts of other states to regard as final and conclusive determinations. Indeed such decrees are not given conclusive effect in our own courts, for under Civil Code,

section 138, the court granting the decree “may at any time modify or vacate the same.” In order to avoid interminable and vexatious litigation it is generally required that before modification or vacation of such a decree “there must be a change of circumstances arising after the original decree is entered, or at least a showing that facts were unknown to the party urging them at the time of the prior order . . .” (Olson v. Olson, 95 Cal.App. 594, 597 [272 P. 1113], quoted with approval in Foster v.

Foster, supra, 8 Cal.2d 719, 726.) Whatever proof may be required for a modification or vacation of a custody decree, it is not a final judgment. (Cooney v. Cooney, 25 Cal.2d 202, 208 [153 P.2d 334].) As a matter of comity the courts of this state treat valid, custody decrees of the courts of sister states with the same respect as custody decrees of California courts. (Foster v. Foster, supra at 728-729; Titcomb v. Superior Court, 220 Cal. 34, 39 [29 P.2d 206].) No more or less respect for California decrees is expected from the courts of other states.

If the decrees of California courts with respect to child custody are subject to modification or annulment in this state, they are likewise subject to modification or annulment in any state having jurisdiction.over the subject matter, for such a decree “has no constitutional claim to more conclusive or final effect in the State of the forum that it has in the State 'where rendered.” (New York v. Halvey, 330 U.S. 610 [67 S.Ct. 903, 91 L.Ed. 1133, 1136]; see Harper, Conflict of Laws, 47 Col.L.

Rev. 883, 907-909.) Since the courts of this state do not finally and conclusively determine custody in a divorce proceeding, there is no reason to attempt to arrive at some basis for jurisdiction that should be accepted as final and conclusive in all states. It is a sufficient basis for jurisdiction that the state “has a substantial interest in the welfare of the child or in the preservation of the family unit of which he is a part . . . and this jurisdiction may exist in two or more states at the same time.” (Stansbury, 10 Law and Contemp.

Prob. supra at 831.) Since this is a proceeding in mandamus to determine only the question of whether the respondent court has jurisdiction over the subject matter of the custody proceeding, we are not concerned at this time with the question of how the jurisdiction of the respondent court should be exercised or whether under the facts of this case, as they may be determined by the trial court, it would be proper for the trial court to refuse to determine the custody of the minor child in the pending proceeding.

It is sufficient that the respondent court has jurisdiction to hear petitioner’s application for a custody award. It is likewise immaterial to the determination of this case whether defendant has been awarded custody of the child by a Nevada court. It may be assumed for the purposes of this decision that the temporary presence of the child in Nevada provided a sufficient basis for a custody award and that the decree of the Nevada court was valid to the extent that it determined the child’s custody. (Finlay v. Finlay, supra, 240 N.Y. 429, 431; cf. Rest.

Conflicts, § 118.) Such á decree does not deprive the California courts of jurisdiction over the child (see Titcomb v. Superior Court, supra, 220 Cal. 34, 39) for the state of domicile, where the child has lived most of its life, clearly has as substantial an interest in the child’s welfare as a state in which the child’s presence was merely temporary. The fact that the child is now living in Utah, where it was taken by defendant sometime after the commencement of the present action, likewise does not deprive the respondent court of jurisdiction over the child’s custody.

The respondent court acquired jurisdiction over the subject matter of the custody of the child while the child was clearly domiciled within this state. Any subsequent change in the child’s abode is relevant only to the determination of how the court’s jurisdiction should be exercised with due regard for the welfare and best interest of the child. That question cannot be decided on the basis of the meager facts now before this court, even if it were proper in a mandamus proceeding to determine how the trial court should exercise its jurisdiction.

The trial court therefore has jurisdiction of the subject matter of the custody proceeding and of the parties thereto and must proceed with the hearing on the order to show cause why an order pendente lite should not be granted. Let the peremptory writ issue as prayed. Gibson, C. J., Edmonds, J., and Spence, J., concurred. The parties have argued the question whether in California the domicile of child after the separation of the parents remains that of the child's father or is that of the parent with which it lives. Plaintiff contends that Government Code,

section 244(d), providing that “The residence of the father during his life ... is the residence of the unmarried minor child" applies until the custody of the child has been determined by a court of competent jurisdiction. On the other hand, defendant, relying on Civil Code, sections 197, 198, and 213, contends that Government Code,

section 244(d), applies only to the residence or domicile of a child whose parents have not separated.

These sections provide that the father and mother of a legitimate child are equally entitled to its custody ($ 197); that after separation of the parents, the “father, as such, has no rights superior to those of the wife and mother, in regard to the care, custody, education and control of the children of the marriage while such husband and wife live separate and apart from each other” ($198); and that the parent entitled to the child’s custody has a right to change the child’s domicile. ($ 213.) There is authority in support of plaintiff’s contention in Luck v.

Luck, 92 Cal. 653, 655 [28 P. 787], but that ease was decided before

section 197 was amended to its present form (Stats. 1913, p. 52), and the opinion does not mention sections 198 and 213. (Cf. Cole v. Superior Court, 28 Cal.App. 1, 5-6 [151 P. 169], which also does not mention these sections.) Similar statutes have been interpreted to mean that, after separation, the child takes the domicile of the parent with whom it lives. (See 1 Beale, Conflict of Laws, $ 32.2; Stumberg, Conflict of Laws, p. 43; 5 Vernier, American Family Laws, p. 227.) This

interpretation would be in accord with the rule applicable to the determination of the residence of the child under provisions of the Welfare and Institutions Code. ($ 17.1(a) (b).) Her domicile in California continued until she acquired a new one, even though she may have left California intending eventually to go to Utah and not to return to this state. A new domicile cannot be acquired •until a person actually lives in a new state with the intention of remaining there. (Gov. Code, $ 244; Rhodes v. Rhodes, 80 Cal.App.2d 723, 726 [182 P.2d 275]; County of Los Angeles v.

Superior Court, 128 Cal.App. 522, 528 [18 P.2d 112]; additional eases collected 9 Cal.Jur. 834-835; cases in other jurisdictions collected, Kennan, ¡Residence and Domicile, $$ 92, 93, 100, 118-122; 1 Beale, Conflict of Laws, 133; 5 A.L.B. 296; 17 Am.Jur. 609-610; 28 C.J.S. 30.) Therefore, defendant did not acquire a Nevada domicile simply because she intended to reside in Utah. She could not have acquired a Utah domicile at the time the complaint in the divorce action was filed or at the time of her appearance in that action, for she had not then gone to Utah to live.

Whether defendant may now be domiciled in Utah is immaterial to the question of jurisdiction, for if the trial court had jurisdiction at the time of the commencement of the action, such jurisdiction could not be lost by any subsequent change of residence or domicile. Jurisdiction once acquired is not defeated by subsequent action of the parties. (Maloney v. Maloney, 67 Cal.App.2d 278, 280 [154 P.2d 426]; Roberts v. Roberts, 300 Ky. 454 [189 S.W.2d 691]; additional eases collected 171 A.L.R., 1405.)