BROOKEE KUBON, Appellant, v. WALTER KUBON, Respondent, 51 Cal. 2d 229

McCOMB, J. Plaintiff appeals from a judgment denying her recovery on a Nevada money judgment which was based on orders in a divorce decree requiring defendant to pay support for their two minor children. The appeal is on the judgment roll and certain exhibits of a documentary nature that were requested in the notice of appeal as provided in rule 5a of the Rules on Appeal (36 Cal.2d 5). The record discloses the following: i. March 27, 1952, the parties were divorced in the District Court of Clark County, Nevada, which court had personal jurisdiction of the parties.

Pursuant to an agreement between them, their property rights were settled and legal custody of the two minor children was given to both, physical custody being awarded to plaintiff. Defendant was ordered to pay $100 per month for child support. The court reserved “jurisdiction to make such other and further Orders with respect to the care, custody, support and maintenance of the said minor children as from time to time may seem meet and proper. ’ ’ ii.

August 27, 1953, on a motion to change the custody of the children, the Nevada court made an order allowing defendant their physical custody during the summer vacation. iii. August 3, 1954, defendant filed a petition in the Superior Court of the State of California, in and for the County of Marin, seeking appointment as guardian of the children. At the time this petition was filed the children were residing with him in his San Rafael residence under his lawful custody pursuant to a Nevada custody order.

Upon the filing of this petition, the Superior Court of Marin County issued its temporary restraining order restraining plaintiff from taking the minor children from defendant’s custody or from defendant’s San Rafael home pending the hearing on the petition. This restraining order was duly served upon plaintiff on August 5, 1954. iv. In October 1954 the Nevada court again modified the order for custody, taking away from defendant the right to the summer custody of the children and awarding their full custody to plaintiff, with the right of reasonable visitation in Nevada to defendant. v.

Support payments for September 1954 to June 1955 were not made by defendant. Pursuant to

chapter 128 of the Statutes of Nevada, plaintiff thereafter made a motion to reduce the delinquent support payments to a formal judgment. The court ordered service of the notice of motion on defendant by registered mail, return receipt requested. Defendant made no personal appearance, and judgment was entered against him for $1,000, plus $250 attorney’s fees and $10 costs. vi. September 18, 1955, plaintiff filed a complaint in Marin County, California, to establish the Nevada judgment as a judgment of this state. vii.

October 17, 1955, defendant filed an answer in which he admitted submitting himself to the jurisdiction of the Nevada court in all proceedings except the last one and admitted the nonpayment of, and his ability to pay, the support during the 10-month period involved in the judgment.

Defendant set up, among others, the affirmative defense that it would be against public policy to enforce the judgment in California because plaintiff did not come into court with clean hands.” He alleged that she was in contempt of the very court whose aid she was seeking, in that she had violated the temporary custody and restraining order issued in the guardianship proceeding which was filed in Marin County in August 1954 and was still pending; that she had kidnaped the children from his San Eafael home on August 20, 1954, and taken them into Nevada, where they had been concealed in an abandoned mine in the desert; that as a direct result of her wrongful conduct the Nevada court made the child support order and the judgment based thereon which she was endeavoring to enforce in the instant action; and, further, that she had never appeared nor purged herself of contempt in such proceeding and should not be permitted to profit from her own wrongdoing. viii.

October 21, 1955, plaintiff filed a motion to strike the foregoing affirmative defense, which motion was denied by the trial judge. ix. After trial, the judge found that the allegations set forth above in defendant’s affirmative defense were true and denied plaintiff recovery on the Nevada judgment. Questions: First. Did the trial court err in denying plaintiff’s motion to strike defendant’s affirmative defense set forth above? No.

It is contended that there was no personal service of the restraining order on plaintiff and no hearing thereon was held within 10 days, as a result of which the restraining order was void, and that the action of the trial court in denying plaintiff’s motion to strike defendant’s affirmative defense set forth above was therefore error. However, findings of fact made by the trial court refute these arguments. Since the present appeal is upon the judgment roll and does not contain the evidence before the trial court, it will be conclusively presumed that the evidence sustained the findings. (Hunt v.

Plavsa, 103 Cal.App. 2d 222, 224 [229 P.2d 482] ; Estate of Larson, 92 Cal.App. 2d 267, 268 [1] [206 P.2d 852] ; cf. Reid v. Valley Restaurants, Inc., 48 Cal.2d 606, 609 [2] [311 P.2d 473].) Accordingly, in the instant case, the finding of the trial court that “said restraining order was duly served upon” plaintiff on August 5, 1954, is presumed to be supported by competent evidence.

Likewise, there is nothing in the record to show that a hearing was not held within 10 days after the issuance of the order, and the trial court’s finding that all the allegations of the answer were true (one of the allegations being that said order was “still pending in the Marin County Superior Court”) is presumed to be supported by the evidence. Second. Did the trial court err in denying plaintiff’s motion for a commission to examine witnesses in Nevada? No. There is a total absence of any evidence in the record to show that plaintiff complied with sections 2024, 2025 or 2025% of the Code of Civil Procedure.

Therefore, there is no affirmative showing of error upon the part of the trial court. Third. Did the trial cotirt err in not hearing defendant’s affirmative defense, which constituted a plea in abatement, prior to trying the case? No.

Section 597 of the Code of Civil Procedure provides only that if the answer raises a plea in abatement “the court may, upon the motion of either party, proceed to the trial of such special defense . . . before the trial of any other issue in the case. ...” (Italics added.) It is clear that a plea in abatement may be heard either before the trial of other issues or along with the trial of other issues and that if the latter procedure is followed, the trial court may, after the trial, grant the plea in abatement.

There is no rule of law to the effect that a defendant waives his plea in abatement by not insisting that it be tried separately and prior to the issues on the merits. The judgment is affirmed. Shenk, J., Sehauer, J., and Spence, J., concurred.