32 Cal. 2d 763, 197 P.2d 739 (1948)
The parties to the divorce action were married in 1941 and have one child born on September 13, 1944.1 The child lived with both parents in Los Angeles County, California, until June 3, 1946, when the parents separated.2 The child continued to live in California with the defendant mother until October 25, 1946, when she left the state taking the child with her.3 Thereafter they lived in Nevada until June 7, 1947, and since that date they have lived in Utah.4
Plaintiff filed a complaint for divorce, custody of the minor child, and division of community property in respondent superior court on January 2, 1947.5 Defendant was not personally served in California but appeared through her attorney on April 4, 1947, and filed an answer alleging that she had obtained a Nevada divorce decree on February 4, 1947, awarding her custody of the child.6 On July 8, 1947, plaintiff applied for an order pendente lite awarding him custody of the child pending trial.7
Plaintiff's affidavit in support of the application stated that defendant had taken the child out of California without his knowledge or consent with the intention of obtaining a Nevada divorce and marrying William Holt in Utah.8 The order to show cause was served on defendant's attorneys.9 Defendant appeared and moved to dismiss the proceeding on the ground that the court lacked jurisdiction because the child was not in California at any time since the complaint was filed.10 The court granted the motion and dismissed the order to show cause for lack of jurisdiction.11
Plaintiff petitioned the Supreme Court of California for a writ of mandamus to compel respondent court to hear the application.12 Respondent court and defendant jointly opposed the petition, asserting that the court had no jurisdiction because the child was physically outside the state before and after commencement of the action.13 This court granted the alternative writ to determine whether the respondent court has jurisdiction to continue with the proceeding.14
Whether mandamus is available to compel the trial court to hear the application for an order pendente lite awarding custody of the minor child?15
Mandamus is available to compel a trial court to hear and determine a proceeding when the court refuses to exercise its jurisdiction on the ground that it lacks jurisdiction, provided there is no plain, speedy, and adequate remedy at law such as appeal.16
Yes. The respondent court refused to proceed with the hearing on the application to determine custody of the child.17 It acted on the sole ground that it had no jurisdiction to do so.18 This was based on the affirmative facts set forth in the affidavit of petitioner.19 Those facts showed 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.20
The established facts show that the trial court granted defendant's motion to dismiss the order to show cause for lack of jurisdiction without considering the merits of the custody application or the relative fitness of the parties.21 Because the trial court possesses jurisdiction over the subject matter as shown in the second issue, mandamus properly issues to compel the hearing rather than requiring plaintiff to await the outcome of the principal action.22
Mandamus is available to compel the trial court to hear the application for an order pendente lite awarding custody of the minor child.23
Related opinions on this issue
Joined by Shenk, J., And Carter, J.
Justice Schauer dissented.24 He maintained that the trial court exercised its jurisdiction by issuing the order to show cause.25 The court conducted a hearing on the evidence and entered an order of dismissal that finally disposed of the proceeding.26
He argued that the majority improperly used mandamus to reverse an order that was an exercise of jurisdiction rather than a refusal to act.27 The holding was inconsistent with Lincoln v. Superior Court and Brock v. Superior Court.28 Those cases denied mandamus where the trial court had considered evidence and dismissed after determining it lacked authority to grant the requested relief.29
Whether the superior court has jurisdiction over the subject matter of the custody of a minor child who was domiciled in California at the commencement of the divorce action, but was physically absent from the state during the pendency of the action?30
A California superior court has jurisdiction over the custody of a minor child in a divorce action if the child was domiciled in California at the time the action was commenced. This holds even though the child is not physically present in the state during the pendency of the action. The state of domicile has a substantial interest in the child's welfare.31
Yes. The child was domiciled in California at the commencement of the proceeding on January 2, 1947. The parties were married in 1941. The child was born in 1944. The child lived with both parents in Los Angeles County until the separation on June 3, 1946. The child continued to live in California with the defendant until October 25, 1946.32
The established facts show that the defendant had not acquired a new domicile outside California at the time the complaint was filed. She intended only a temporary stay in Nevada to obtain a divorce before moving to Utah.33 The trial court therefore acquired jurisdiction over the subject matter of custody based on the child's domicile at the commencement of the action. Subsequent physical absence of the child did not divest that jurisdiction.34
The superior court has jurisdiction over the subject matter of the custody of the minor child.35