CONFLICT OF LAWS-JURISDICTIONAL BASIS FOR AWARDING CUSTODY OF MINOR CHILD

Plaintiff and his wife, domiciliaries of California, separated June 3, 1946. On Oct. 25, 1946, the wife took the minor child of the marriage to Nevada where she commenced proceedings to obtain a divorce. On Feb.

4, 1947, a final decree awarded her a divorce and custody of the child. She remarried and moved to Utah where she and the child have lived ever since. On Jan. 2, 1947, the plaintiff filed a petition in California asking for a divorce and custody of the child.

On July 8, 1947, plaintiff applied for an order pendente lite to award him custody pending trial in the California action. The wife answered the petition through an attorney and moved to dismiss the application, claiming that the court had no jurisdiction as the child was not in California and had not been in the state at the time the petition was filed. The motion to dismiss was granted. Plaintiff sought a writ of mandamus to compel a hearing on the order.

Held, mandamus granted. The wife's demurrer to the alternative writ for mandamus constituted an admission of the allegation in plaintiff's petition that the child was domiciled in California. This, along with the state's interest in the welfare of the child, was sufficient to give the California court jurisdiction in the matter of custody. Sampsell v. Superior Court, (Cal.

1948) 197 P. (2d) 739.