## Facts

- Daniel Gorham Whealton and Hazel Lorraine Whealton married in Bel Air, Maryland, on June 15, 1964.
- Daniel was a U.S. Navy petty officer on active duty and was stationed on the East Coast during the early period of the marriage.
- The couple cohabited only about six or seven weeks on the East Coast.
- Daniel was later assigned to the U.S.S. *Repose* at the San Francisco Naval Shipyard and arrived in California on July 14, 1965.
- On September 3, 1965, Daniel filed an annulment action in California alleging fraud and obtained an order for service by publication.
- Publication was completed as ordered; Hazel, living in Maryland, received a mailed copy of the summons on September 7, 1965.
- Hazel wrote the court on September 11, 1965, stating she was having difficulty obtaining counsel but intended to contest the action.
- On October 11, 1965, the trial court entered Hazel’s default, took testimony, and entered a default judgment annulling the marriage.
- On October 19, 1965, Hazel moved to set aside the default and default judgment and to file responsive pleadings; the trial court denied the motion on November 9, 1965.
- Hazel appealed from the default judgment and the order denying relief.

## Issues

1. Whether the default and default judgment were prematurely entered before Hazel’s time to appear and answer expired after service by publication.
2. Whether the trial court lacked subject-matter jurisdiction to annul the marriage because neither party was shown by pleading or proof to be domiciled in California.

## Decision

- The California Supreme Court reversed the default judgment of annulment.
- The court held the default judgment was premature because Hazel was not yet in default when default was entered under the statutory timing rules for service by publication.
- The court further held that, independent of the default defect, the judgment had to be reversed because the pleadings and evidence did not establish that either spouse was domiciled in California, a prerequisite to adjudicating marital status.

## Legal Principles

- When service is by publication and there is no out-of-state personal service, a defendant is not in default until 30 days after service is deemed complete under the governing service-by-publication provisions; a default judgment entered earlier is reversible.
- A court’s power to grant an annulment (a marital status adjudication) requires that at least one spouse be a bona fide domiciliary of the forum state; lack of domicile is a subject-matter jurisdiction defect.
- A servicemember’s physical presence in California under military orders does not, by itself, establish California domicile without evidence of intent to make California a permanent home and to abandon the prior domicile.
- In marital status actions, the party invoking the forum’s authority must allege and prove facts establishing domicile sufficient to support jurisdiction.

## Conclusion

The annulment obtained by default was reversed because the default was entered before the statutory response period expired and because the record failed to establish California domicile for either spouse, depriving the court of jurisdiction to determine marital status.


Whealton v. Whealton, 67 Cal. 2d 656 (Cal. 1967)