The opinion
Batjer, J.,
dissenting:
I feel obligated to follow the rulings of the United States Supreme Court in Halvey v. Halvey, 330 U.S. 610 (1947), and May v. Anderson, 345 U.S. 528 (1953), and I therefore dissent from the majority opinion.
The question presented in May v. Anderson, supra, was whether, in a habeas corpus proceeding attacking the right of a mother to retain possession of her minor children, an Ohio court must give full faith and credit 1 to a Wisconsin decree awarding custody of the children to their father when that decree is obtained by the father in an ex parte divorce action in a Wisconsin court having no personal jurisdiction over the mother.
The United States Supreme Court held that the part of the Wisconsin decree awarding custody of the children to their father was not entitled to full faith and credit.
In the May case the only service of process upon the mother consisted of the delivery to her personally, in Ohio, of a copy of the Wisconsin summons and petition. The court found that, “Such service is authorized by a Wisconsin statute for use in *276 an action for a divorce but that statute makes no mention of its availability in a proceeding for custody of children.” 2
In arriving at its decision the court said: “In the instant case, we recognize that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.
“We find it unnecessary to determine the children’s legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.”
In Estin v. Estin, 334 U.S. 541 (1948), the court said: “The fact that the requirements of full faith and credit, so far as judgments are concerned, are exacting, if not inexorable (Sherrer v. Sherrer, 334 U.S. 343 (1948)), does not mean, however, that the State of the domicile of one spouse may, through the use of constructive service, enter a decree that changes every legal incidence of the marriage relationship.”
In Halvey v. Halvey, supra, the court said: “If the court of the State which rendered the judgment had no jurisdiction over the person or the subject matter, the jurisdictional infirmity is not saved by the Full Faith and Credit Clause. See Thompson v. Whitman, 18 Wall. 457 ; Griffin v. Griffin, 327 U.S. 220 . And if the amount payable under a decree — as in the case of a judgment for alimony — is discretionary with the court which rendered it, full faith and credit does not protect the judgment. Sistare v. Sistare, 218 U.S. 1, 17 . Whatever may be the authority of a State to undermine a judgment of a sister *277 State on grounds not cognizable in the State where the judgment was rendered (Cf. Williams v. North Carolina, 325 U.S. 226, 230 ), it is clear that the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.”
In May v. Anderson, supra, Mr. Justice Frankfurter in his concurring opinion, observed: “There are, of course, adjudications other than those pertaining to children, as for instance decrees of alimony, which may not be definitive even in the decreeing State, let alone binding under the Full Faith and Credit Clause.”
Mr. Justice Frankfurter in his concurring opinion in Halvey v. Halvey, supra, wrote: “Conflicts arising out of family relations raise problems and involve considerations very different from controversies to which debtor-creditor relations give rise. Such cardinal differences in life are properly reflected in law. And so, the use of the same legal words and phrases in enforcing full faith and credit for judgments involving the two types of relations ought not to obliterate the great difference between the interests affected by them, and should not lead to an irrelevant identity in result.”
Mr. Justice Rutledge in his concurring opinion in the Halvey case said: “But our function here is limited to application of the full faith and credit clause. I agree that technical notions of finality applied generally to other types of judgment for such purposes have no proper strict application to these decrees. But, even so, full faith and credit is concerned with finality and only with finality when the question arises in relation to the binding effects of judgments. And the law is clearly settled that while generally the clause requires other states to give judgments as much effect as they have where rendered, it does not require them to give more.
“Accordingly, if the state rendering the judgment gives it no final effect to prevent its alteration, I am unable to see how others having jurisdiction of the parties and the subject matter may be required to give it finality in this respect by virtue of the provision for full faith and credit.”
In the case before us, the trial court has given full faith and credit to a default judgment entered in the State of California based on personal service of the complaint and summons on the appellant in Reno, Nevada. The service is alleged to be authorized by a California statute allowing personal service beyond the boundaries of the State of California when the “cause of action arose,” while the appellant was domiciled in that state. The statute makes no mention of its availability in *278 a proceeding for divorce or annulment of marriage, and much less in an action where alimony is to be awarded to the plaintiff.
Although May v. Anderson, supra, concerns itself with child custody and the question of the court’s jurisdiction to enter an in personam judgment based on personal service of process outside the state, it is sufficiently clear that the case is controlling in all in personam matters arising out of the marriage relationship.
May is an extremely strong case. It is not merely a situation where the United States Supreme Court is ratifying one state court’s failure to give full faith and credit to an in personam judgment of another state, but instead, it precludes Ohio from giving full faith and credit to the Wisconsin judgment.
Although the Wisconsin judgment was based on personal service in Ohio pursuant to a Wisconsin statute specifically authorizing such service in divorce and annulment of marriage actions, the court in May v. Anderson, supra, said that the Wisconsin long arm statute was insufficient to give Wisconsin jurisdiction to enter an in personam judgment for child custody against the mother who had moved to Ohio. The case before us presents a weaker position.
A certain line of cases, relied upon by my brothers in the majority opinion, have subjected defendants, found beyond the territory of the forum, to the personal jurisdiction of that state on the grounds that they had certain minimum contacts with the forum, and the traditional notions of fair play and substantial justice were not offended. International Shoe Co. v. Washington, 326 U.S. 310 (1945); Travelers Health Ass’n v. Virginia, 339 U.S. 643 (1950); Perkins v. Benguet Mining Co, 342 U.S. 437 (1952); McGee v. International Life Ins. Co, 355 U.S. 220 (1957); Hanson v. Denckla, 357 U.S. 235 (1958).
While the prerequisite of “minimum contact” may be found in domestic relations cases to bridge the gap of extraterritorial service of process, the resulting judgments and decrees are not in the same category as those in cases arising out of contract, tort, or the other divisions of the legal field. The “minimum contact” doctrine cannot be properly applied to confer in personam jurisdiction to the domestic relations field.
The minimum contact theory of in personam jurisdiction cannot be reasonably applied to an alimony judgment because that type of judgment contains an element of inherent uncertainty. A change of circumstances in the status of either party, subsequent to the entry of judgment is, within the court’s discretion, grounds for modification.
In light of May v. Anderson, supra, and Halvey v. Halvey,
*279 supra, this court should not rely on Soule v. Soule, 14 Cal.Rptr., 417 , (Cal.App. 1961), and should refuse to give full faith and credit to the case of Ruth E. Mizner v. Willis O. Mizner, No. 101 297, in the Superior Court of the State of California, in and for the County of Contra Costa.
Art. IV, Sec. 1 of the Constitution of the United States provides: “Full faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
Wisconsin Statutes 1949: “262.12. Publication or service outside state, when permitted. When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases:
# * * * *
“(5) When the action is for a divorce or for annulment of marriage.
$ ‡ ‡ $
“262.13. Publication or service outside state; * * * mode of service.
❖ 4: :',i *
“(4) In the cases specified in Rule 262.12 the plaintiff may, at his option and in lieu of service by publication, cause to be delivered to any defendant personnally without the state a copy of the summons and a verified complaint or notice of object of action as the case may require, which delivery shall have the same effect as a completed publication and mailing * *