FAMILY LAW CASE STUDIES – VOLUME 11, NUMBER 2, February 2013

Published and Unpublished Appellate Court Opinions for February 2013

Family Law News is the official publication of the State Bar of California Family Law Section, and is sent automatically to Section members.

Published as a service to the Family Law Bar Association. [Re-posted from California Bar Association’s Family LAw Bar Web Site; http://familylaw.calbar.ca.gov/

Compiled by the Hon. E. J. Burke, 1035 Palm Street, Room 355, San Luis Obispo, CA 93408,jeffrey.burke@slo.courts.ca.gov.

Published and unpublished slip opinions can be secured from www.courts.ca.gov/opinions.htm.

*Unpublished opinions may not be cited and are being provided just for your information.

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Irmo P. (2013) ___ Cal.App.4th ___ (CA 2/5 – Opinion filed February 13, 2013)

Father’s mental disability warranted termination of his parental rights.

Mother and Father married and adopted S.P. (the minor child).  Prior to the marriage, Father suffered from mental illness but took medication that allowed him to function normally.  Shortly after the adoption, Father stopped taking his medication and his mental condition deteriorated to the point where it seriously impacted his relationship with Mother and the minor. Restraining orders were issued.

On one occasion, Father appeared unannounced at Mother’s home and tried to force her and the minor into his vehicle; in the resulting struggle, the minor fell from Mother’s arms and fractured his skull.  Mother ultimately filed a petition for dissolution of the marriage and was awarded sole custody of the minor.  According to Mother, after she and the minor moved out of state, Father suffered a criminal conviction for the attempted murder of his mother.

Mother filed a petition to terminate Father’s parental rights pursuant to FC § 7827.  A psychologist and a psychiatrist were appointed to examine Father and to prepare reports with their diagnoses and prognoses.  Nevertheless, Mother later agreed with Father to dismiss her petition to terminate Father’s parental rights in exchange for Father’s agreement to undergo treatment and take medication for his mental illness.  Mother then allowed Father to reestablish a relationship with the minor.

Shortly after entering into the stipulation, Father again refused to take his medication and his mental condition again deteriorated, leading Mother to reinstate her petition to terminate Father’s parental rights.  Mother explained that the persons who agreed to act as guardians for the minor in the event she passed away refused to do so if Father continued to have parental rights.  The guardians were concerned that any money Mother would leave for the minor’s care after her death would be depleted by litigation over Father’s parental rights to the minor.  Mother also said she believed that Father could hurt the minor.  She was concerned about the minor’s safety because of Father’s mental illness and his unpredictable behavior toward the minor.

A psychologist and two psychiatrists were appointed to evaluate Father’s mental condition.  The experts unanimously reported that Father was mentally disabled within the meaning of FC § 7827 and said that if he continued to refuse to comply with medical treatment recommendations he would remain disabled for the foreseeable future.

After hearing argument, the trial court noted that the appointed experts characterized Father as a charming individual and also said the court found him to be so when he takes his medication.  “He is a very intelligent and likeable person.  [¶]  But as Dr. Ward has said, he is clearly chronically, severely, mentally disabled, such as he could not, and should not be entrusted with the independent care and control and custody of a child. … [H]is lengthy very troubled and problematic history contradict that and his prognosis remains quite poor.”

The trial court concluded the best interest of the minor would be served by terminating Father’s parental rights.  Father appealed. AFFIRMED

“The right of parents to raise their own children is so fundamental that termination of that right by the courts must be viewed as a drastic remedy to be applied only in extreme cases.  Accordingly, there must be clear and convincing evidence of the facts necessary to declare minors free from the custody and control of their parents under Civil Code section 232.”  (In re Victoria M., supra, 207 Cal.App.3d at p. 1326.)

It Was Not Reversible Error to Fail to Order an Investigation Under FC §§ 7850 and 7851.

FC §§ 7850 and 7851 require the trial court to order a licensed clinical social worker to conduct an investigation and prepare a report for the trial court’s consideration.  The trial court failed to do so and Father argued this made the trial court’s orders “reversible per se.”  The CA rejected the argument.
The CA pointed out that the Supreme Court in Irmo Goddard (2004) 33 Cal.4th 49, 56 noted that most procedural errors are not jurisdictional.   “Once a court has established its power to hear a case, it may make errors with respect to areas of procedure, pleading, evidence, and substantive law.”  The CA said the investigation and report under sections 7850 and 7851 are procedural and evidentiary requirements, much like the evidentiary statute at issue in Goddard.

Here, “the trial court ordered examinations by and considered reports from two psychiatrists and a psychologist.  It also appointed separate counsel for the minor and Father, as well as a guardian ad litem for Father.  At no point, however, did Father’s counsel suggest or imply that an additional investigation and a report from a licensed clinical social worker be ordered, much less suggest that such an investigation and a report were mandatory under sections 7850 and 7851.  Because Father failed to afford the trial court and Mother’s counsel that opportunity, he forfeited any issue under sections 7850 and 7851 on appeal.”

In any event, the CA concluded that even if Father had not forfeited his argument sections 7850 and 7851 required an investigation, these sections do not apply to Mother’s petition that was premised on FC § 7827 that permits a trial court to terminate parental rights when the parent’s mental disability renders a parent unable to care for and control his or her child and the disability is likely to remain so in the foreseeable future.  The CA said section 7827 is the only provision that specifies that a trial court must take expert evidence from two psychiatrists or psychologists and that the trial courtmay, in its sound discretion, take testimony from, inter alia, a licensed clinical social worker.

Finally, the CA said Father failed to demonstrate how the absence of a licensed clinical social worker’s investigation and report prejudiced him in this case.   “[T]he presumption in the California Constitution is that the ‘improper admission or rejection of evidence . . .  or . . .  any error as to any matter of procedure,’ is subject to harmless error analysis and must have resulted in a ‘miscarriage of justice’ in order for the judgment to be set aside.  (Cal.Const., art. VI, § 13.)  Thus, for a non-jurisdictional error to result in reversal, there must be a reasonable probability of a different result had the error not occurred.  (Rutheford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983; Soule v. General Motors Corp.(1994) 8 Cal.4th 548, 570.)  Here, there was no reasonable probability that Father would have obtained a different result if the trial court had also considered a licensed clinical social worker’s investigation and report.

No Accompanying Adoption Proceedings

The CA also rejected Father’s policy-based argument that termination of parental rights generally must be accompanied by an adoption proceeding.  Parental rights can be terminated when an adoption is not contemplated in exceptional circumstances.

The CA approved the trial court’s findings that the minor child’s best interests would be served by the termination of Father’s parental rights because Father’s mental health issues were a threat to the well being of the child.  “It seems axiomatic that if Father is mentally disabled so that he is unable to care for or control the child and that this disability would persist for the foreseeable future, the continuation of his parental rights would not be in the child’s best interests.

Less Drastic Alternatives

Father’s final contention was that the trial court was required to consider and specifically rule out less drastic alternatives to the termination of his parental rights.  (In re Cody W. (1994) 31 Cal.App.4th 221, 228-229 and In re David B. (1979) 91 Cal.App.3d 184, 196. “‘[T]he judge must carefully explore all reasonable alternatives to severing the parent relationship such as child protective services and temporary foster home care pending efforts to rehabilitate the parent.  These alternatives should be employed unless they would result in serious psychological harm to the child.  However, if the court determines that available medical and social resources are inadequate to rehabilitate the parent to a level where he or she will be able to assume responsibility for the child, then it becomes inimical to the child’s welfare to delay efforts to seek permanent adoptive placement.'”]  (Cody W. at p. 229.)

Here, Father suggested that the trial court should have considered preserving the status quo based on the speculative hope that Father might someday comply with his required treatment and medication regimens and thereafter demonstrate his ability to reunify with the minor at some unspecified level.  The CA rejected the argument, concluding substantial evidence supported the trial court’s conclusion it was “extremely likely” that Father would continue to be mentally disabled and therefore the implicit finding that less drastic alternatives to termination of parental rights were not available.

Moore v. Bedard (DCSS) (2013) ___ Cal.App.4th ___ (CA 4/2 – Opinion ordered published February 15, 2013)

The trial court’s jurisdiction to make child support orders survives the dissolution of A temporary restraining order.

In 2006, Wife requested domestic violence restraining orders to protect her from Husband who is the father of their three children.  Her request for DVPO’s also asked for child custody, visitation and child support orders that would modify orders entered in 2002.  A TRO was issued but was never served.  When the matter came on for hearing the parties stipulated to orders that dissolved the temporary restraining order.  The stipulation also resolved child support and other monetary issues.

In 2009, the Riverside County DCSS filed a substitution of payee form designating it as the payee of child support.  In 2010 and early 2011, various enforcement actions including a bank levy, were undertaken and several hearings were held.

In 2011, Husband filed a request for a hearing to modify child support.  At the hearing, the trial court found there were no restraining orders in place and declared, “this case [has been] dismissed.”  As to child support, the court referred the parties to DCSS and ordered, “Entire action is dismissed.”

DCSS then moved to vacate the order dismissing the action, noting Husband had taken the position that there was no valid support order because the entire action had been dismissed.  At the hearing, the trial court concluded that it lost jurisdiction in 2006 when the requested restraining order was not issued.  The trial court “voided” the parties’ stipulation and the orders entered in 2010.  The trial court specifically ruled that it lost jurisdiction to make a child support order because it did not issue a restraining order.

Nevertheless, the trial court set aside the order of dismissal made in 2011 on the ground that DCSS was not represented at the hearing.  DCSS appealed.  REVERSED

FC §§ 200 and 290 provide the superior court with jurisdiction to make and enforce orders that “the court in its discretion determines from time to time to be necessary.”  Domestic violence restraining orders are authorized by the DVPA (§§ 6200 et seq.) and FC § 6340 (a) specifically provides that “If the court makes any order for custody, visitation or support, that order shall survive the termination of any protective order.”  This provision is dispositive.

The trial court signed and filed a temporary restraining order that included child custody and visitation orders.  Although the TRO was never served and was terminated by the parties’ 2006 stipulation, the order for support survived termination of the protective order.  (FC § 1740 (a).)  The CA noted that § 6341 (a) provides for the issuance of child support orders when a protective order is issued.  “Thus, the action of the court in ordering child support as stipulated was entirely proper.”

It was error to dismiss the action for lack of jurisdiction.  The court had jurisdiction to make child support orders, and such jurisdiction survived the “dissolution” of the temporary restraining order.  (§§ 200, 290, 6340 (a).)

Unpublished Opinions

Please note: The following digests of unpublished opinions of the California Courts of Appeal are presented as case studies to illustrate how commonly recurring family law disputes were resolved in trial and appellate courts.

Caution: Rule 8.1115 (a), California Rules of Court, prohibits courts and parties from citing or relying on any unpublished opinion in any action or proceeding, except in the limited circumstances specified by rule 8.1115 (b).


Irmo Perry – Unpublished opinion of Division 5 (Filed February 1, 2013)

  1. The failure to exchange final declarations of disclosure is not a ‘get-a-new-trial-free’ card. There must be a showing of a miscarriage of justice.
  2. Sanctions against a party and counsel can be based upon “poor lawyering.”

Husband and Wife married in 1979.  Wife filed an action to dissolve the marriage in 2005 and in 2007 was given the right to operate the family business.  In 2008, a status-only judgment of dissolution was entered.

In 2010, the parties resolved their disputes about reserved issues and put their agreement on the record.  Personal and real property was awarded to each party, a residence atBassLakewas to be sold and the family business was awarded to Wife who was ordered to pay Husband $550,000 in installments as an equalizing payment.  Spousal support was set at zero although the trial court reserved jurisdiction to award support to either party.

Not long after the stipulation was put on the record, Husband changed lawyers and filed a motion seeking spousal support of $7,500 per month and certain other relief.  Husband argued the parties’ agreement did not waive spousal support and that he had a need for it in order to meet the expenses required to live at a level consistent with the standard of living established during the marriage.  Later, Husband filed a motion to set aside the orders that incorporated the parties’ agreement.

The trial court denied Husband’s motion to set aside the orders based upon alleged procedural errors that were earlier corrected by the trial court.  As to Husband’s request for spousal support, the trial court ruled the stipulated order was a final judgment on the issue of spousal support and denied Husband’s request to modify it because he failed to show a change of financial circumstances warranting modification of the  $0 spousal support order.  The requests of both Husband and Wife for attorney fees were denied.

Husband and Wife both appealed.  AFFIRMED

The Stipulation Produced Orders That Are a Final Judgment

The CA agreed with the trial court that the orders based upon the parties’ stipulation was a final judgment because the terms of their stipulation resolved all issues between the parties and included a waiver of the right to request a new trial or to appeal.  Because it left nothing for judicial resolution other than enforcement, the CA said, “The order is a final judgment for purposes of the Code of Civil Procedure.”

Disclosure Does Not Require the Judgment to be Set Aside

Husband argued that his general waiver of the right to seek a new trial was not specific enough to bar his right to seek a new trial under the Family Code.  He asserted FC § 2105 requires either a final declaration of financial disclosure or an express waiver that complies with § 2105 (d).  Husband pointed out that § 2106 forbids the entry of a judgment if the parties have not complied with section 2105 and § 2107 (d) requires any judgment to be set aside.

The CA rejected Husband’s contention pointing out that Irmo Steiner & Hosseini (2004) 117 Cal.App.4th 519 dealt with a similar argument and held that the failure to exchange final declarations of disclosure “does not constitute a ‘get-a-new-trial-free’ card, giving either one of them the automatic right to a new trial or reversal on appeal when there is no showing of a miscarriage of justice.  (Cal. Const, art. VI, § 13.)”  (Id. at p. 522.)   Moreover, the CA pointed out that Husband waived all claims against Wife and waived the right to a new trial on all issues.

The CA also rejected Husband’s argument that he established “adequate prejudice” because Wife failed to disclose that she had not paid all of the taxes she had been ordered to pay in a 2007 order.  The CA said that although “the record is not clear that Husband knew at the time of the stipulation that Wife had not paid the required taxes, Husband has made no showing this would have affected the issue of spousal support.  A party who obtains an order setting aside a dissolution judgment because the opposing spouse has failed to make disclosures is only entitled to set aside ‘those portions of the judgment materially affected by the nondisclosure.'”  (§ 2105 (c).)

Spousal Support

As to Husband’s claim for spousal support, the CA pointed out that the parties’ marriage was statutorily “long-term” (FC § 4336(b).)  In such cases, unless there is a “written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely ….”  (§ 4336 (a).)  That retained jurisdiction includes jurisdiction to award spousal support, whether permanent spousal support is awarded in the final judgment or not.  (Irmo Ostrander (1997) 53 Cal.App.4th 63, 65-66.)”

Thus the order on reserved issues is a final judgment that set permanent spousal support to each party at “$0.00.”  The CA affirmed the trial court’s conclusion the stipulated order established a permanent spousal support award that required changed financial circumstances to modify.  Husband was not entitled to a “ground up” initial hearing on spousal support.

In any event the three-day hearing afforded by the trial court resulted in findings relevant to a request for change inpermanent spousal support.  (See Irmo Hoffmeister (1987) 191 Cal.App.3d 351, 363 [to qualify for an increase in spousal support, the supported spouse must demonstrate (1) that material circumstances have significantly changed since the time of the last prior award and (2) that the reasonable present needs of the supported spouse are not being satisfied].)

Here, the trial court was entitled to infer from the parties’ stipulation setting spousal support at $0.00 that the order met their needs at the time of the judgment.  Although the evidence established a negative change in circumstances for Wife, Husband failed to show his needs had increased or that any of his financial circumstances were any different than they were a few months before when the judgment was entered.

Wife’s Cross Appeal for a Hearing on Her Request for Attorney Fees

The CA found support in the record for the trial court’s conclusion that all issues concerning attorney fees had been decided at previous hearings and that Wife was not denied a hearing on these requests.  The CA also denied Wife’s request for a finding Husband’s appeal was frivolous and that he should be sanctioned.

Wife’s Request for Sanctions Based Upon “Poor Lawyering”

Wife requested sanctions based, in effect, on poor lawyering by Husband’s last attorney in the trial court and current appellate counsel.  She relied on Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151 in support of her request for sanctions: “In Evans, the plaintiffs’ briefs were ‘cornucopias’ of rules violations, and the ‘violations continued in the reply brief even after defendants had highlighted them in the motion for sanctions.’  (Id. at p. 166.)  In addition, the appeal was from a non-appealable arbitration award and plaintiffs’ ‘crude attempts’ to characterize the issues as appealable was merely ‘an artifice.’  (Id. at p. 167.)  Monetary sanctions were awarded against the plaintiffs and their counsel jointly.  (Id. at p. 168.)”

In this case however, the CA said, “It is clear that the record in this case was assembled, presented, and cited in briefing by Husband’s counsel in a manner that burdened opposing counsel and the court.   Many of Husband’s arguments … were patently without merit or were directly contradicted by the record.  Nevertheless, one issue, namely, the trial court’s exercise of discretion in denying the motion to increase the spousal support based on changed circumstances, presented colorable legal issues.  Other issues, while meritless, were apparently presented in subjective good faith.”

Irmo Keith & Holly R. – Unpublished opinion of District 4, Division 3 (Filed February 5, 2013)

Father proved that even though his daughter lived with her mother for a lengthy period of time, her interests would be best served by awarding custody to him.

Wife and Husband married in 2004 and separated in 2006 when Wife moved with their daughter toArizonawithout Husband’s knowledge or consent.  Once there, Wife obtained domestic violence restraining orders.  ACaliforniacourt required Wife to return their daughter toCaliforniaand to dismiss theArizonarestraining order.  Once here, Wife relocated to La Quinta without notice to Husband.

Husband’s petition and Wife’s response sought orders for sole physical custody of their daughter.  They accused one another of actions detrimental to their daughter’s well being.  In 2006 and again in 2008, Wife applied for protective orders based on Husband’s alleged abusive behavior.  A status-only judgment of dissolution was entered in 2008.

In 2008, Wife’s request for a restraining order against Husband was granted and she was awarded sole legal and physical custody of their daughter with monitored visitation reserved for Husband.  Husband completed a 52-week batterer’s intervention program and all reports of Husband’s monitored visits were positive.  The court periodically increased Husband’s parenting time and ultimately dropped the order for monitored visitation.

In 2009, the trial court awarded Wife sole legal and physical custody of their daughter.  The ruling was reversed because the trial court used the wrong legal standard in assessing the custody and visitation issues.  (See Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1050-1051.)

At the retrial of the issue of custody in 2010, Wife requested an order for joint legal custody and sole physical custody of their daughter.  Husband requested sole legal and physical custody based upon his contention Wife relentlessly attempted to destroy their daughter’s relationship with him and his family.  He pointed to Wife’s decision to flee the state in 2006 and to the fact she hid the child from him by surreptitiously moving again to La Quinta after she was restrained from moving toArizona.  He also alleged Wife made false accusations of child sexual abuse to law enforcement personnel, made false allegations to the Medical Board of California.

A child custody evaluation produced a recommendation for joint legal custody.  The evaluator suggested that Wife should have primary physical custody with liberal visitation reserved to Husband.  The evaluator also recommended however that, “Wife’s request to relocate with [their daughter] toArizonabe denied [and that if she does, the child should be in] Husband’s physical custody because he is more likely than her mother to support her relationship with her nonresidential parent.”

In 2011, the trial court awarded Wife and Husband joint legal custody of their daughter but awarded primary physical custody to Husband with visitation for Wife.  The trial court found the presumption created by FC § 3044(a) [an award of sole or joint physical or legal custody to Husband is presumed to be detrimental to the best interest of the child] was rebutted by the facts.  The trial court said Wife’s testimony was untruthful and concluded the best interest of the minor child was not a priority for Wife and that her self-interest came first.  “This is evidenced by [Wife] moving to Arizona, causing a complete cutoff of the minor child from [Husband], and by [Wife] moving to La Quinta, resulting in the minor child having to travel two to three hours in a car to go from one parent to another.”

Wife appealed.  AFFIRMED

The trial court’s determination of custody is ultimately determined by considering the best interest of the child.  (FC § 3011.)  The court may consider any relevant factors in making that determination (Irmo Burgess (1996) 13 Cal.4th 25, 31-32), but it must consider the health, safety, and welfare of the child, and any history of abuse by one parent of the other.  (FC § 3011 (a), (b).)

Pursuant to FC § 3044, the restraining order protecting Wife from Husband’s abuse creates a rebuttable presumption that it would be detrimental to the child’s best interest to award him physical or legal custody to Husband.  In determining whether the presumption has been rebutted the trial court was required to consider the seven factors listed in FC § 3044(b).  It was also required to consider two overriding public policies; viz., that custodial arrangements (1) assure the health, safety, and welfare of the child, and (2) assure that the child has frequent and continuing contact with both parents.  (FC § 3020 (a), (b).)  The CA said substantial evidence supported the trial court’s findings and orders.

Although the CA said, “this case … would vex Solomon himself” it also observed that, “the evidence showed that Husband was the parent who would be more supportive of their daughter’s relationship with her mother.  Wife moved toArizonawithout notice to Husband, completely cutting off contact between Daughter and Husband, which was not in Daughter’s best interest.  Wife later moved to La Quinta, again without notice to Husband ….  Wife enrolled Daughter in preschool in La Quinta without prior notice to Husband ….  Wife filed police reports, in which she might have identified Husband as a suspect in various disturbances at her home …. Wife also accused Husband of sexually abusing Daughter, and reported him to the California Medical Board.  Wife refused to let Husband have unmonitored visits with Daughter, despite the terms of the court’s order permitting such visitation.”

The CA rejected Wife’s argument that a parent with custody of a minor child has a presumptive right to change his or her residence, citing Burgess.  There, the Supreme Court held:  “[I]n a matter involving immediate or eventual relocation by one or both parents, the trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare.”  (Burgess at p. 32.)  The CA said it was uncontradicted that Wife’s move to La Quinta was not in their daughter’s best interest and that her contemplated move toArizona was also contrary to the child’s best interest.

The CA also rejected Wife’s argument that Husband was required to show that awarding primary custody to her in La Quinta would be detrimental to their daughter.  “No such burden exists before a final custody award is issued, no matter how long the child has been in the primary care of one parent. … ‘[W]hile the child’s interest in continuity and stability is a factor that weighs heavily in the equation, it does not change the fact that if there was no existing final determination of what custody arrangement was in the child’s best interest, the noncustodial parent does not have a burden to show that an existing arrangement is detrimental.  In this case, that means that father had the burden of proving that even considering the length of time [the child] had lived with mother, [the child]’s interest would be best served by awarding custody to him.”  (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 999.)

The CA also rejected various other quarrels Wife had with the trial court’s findings, noting the various ways they were supported by the evidence.  For example, the CA rejected Wife’s contention that it was error to conclude the presumption created by FC § 3044 was rebutted citing the evidence that Husband completed a BTP program, the fact there was no evidence of recent abuse and the substantial evidence that primary custody with Husband was in the child’s best interest.

The CA rejected Wife’s argument that it was error to consider the many police reports she filed, because those reports were hearsay.  “The court did not admit the police reports into evidence.  Husband’s counsel was properly allowed to question Wife about what she had told the police when making her reports, as that was relevant to the issue of Wife’s alleged interference with Husband’s custody and visitation.  Wife’s statements to the police as to whom she suspected of breaking into her home and stalking her were not inadmissible hearsay, both because they were not offered for their truth, but to establish Wife’s enmity toward Husband and attempts to interfere with his custody and visitation, and because they constituted admissions by a party.  (Evid. Code, §§ 1200 (a), 1220.)”

DCSS v. Powell – Unpublished opinion of District 2, Division 6 (Filed February 7, 2013)

A motion to set aside a default and default judgment 17 years after they were entered is untimely. The faiure of a process server to certify the age of the person “sub-served” does not require the service to be quashed.

Husband and Wife married in 1987 and separated in 1992.  They have two children.  At Wife’s request, the L.A. County DCSS filed a civil action for support for the minor children against Husband.  The petition was sub-served by a registered process server who left a copy of the summons and complaint with an adult at a residence in Sherman Oaks who told the server that Husband did not live there, but that he received his mail there.  Husband did not answer the complaint.  His default was entered and a judgment establishing Husband’s monthly child support obligation was entered in 1993.

In 1997, Wife filed for dissolution of the marriage inVenturaCountyand Husband was personally served.  When he did not answer, a default judgment was entered against him.  TheLos AngelesCountychild support case was registered inVenturaCountyin 1999 and was consolidated with the dissolution action.

In 1999, theVenturaCountyDA”instituted a wage assignment against Husband’s wages withCaliforniaLutheranUniversity.  In 2010, Husband filed a motion to quash service and to set aside the 1993 default and default judgment.  He declared he first learned about the child support judgment in 2010, and he claimed the substituted service was invalid.

DCSS opposed Husband’s motion, noting he had numerous contacts with the child support enforcement agencies regarding the judgment in 1999, 2000 and 2001 and even made payments on the judgment in 1994.  Wife declared that in 1995 Husband called to report that he was “upset he had been pulled over for speeding and they confiscated his Drivers License for ‘back support.'”

The trial court found Husband’s assertions were not credible, his motions were untimely and said he was aware of the proceedings in 1999 or earlier.  The trial court ruled the substituted service was valid and denied Husbands’ motions.  Husband appealed.  AFFIRMED

Husband’s Motion Was Untimely

FC § 3691 (c)(1) provides that a party against whom a default judgment has been entered may move to set aside the default but the motion must “be served and filed within a reasonable time, but in no event later than six months after the party obtains or reasonably should have obtained  notice . . . of the support order.”  Here there was a 17-year delay between the entry of the judgment in 1993 and the motion to vacate in 2010.

The CA rejected Husband’s claim he did not discover a judgment was entered against him until July 2010.  He made payments on the judgment in 1994; he contacted the Ventura County DCSS in 1999 stating “there was a Los Angeles County order,” asking about a release of his driver’s license, disputing the balance due and asking how to get credit for direct payments he had made.  In 2000, Husband said he wanted a support modified and requested a continuance to hire a lawyer.  Husband had numerous contacts with theVenturaCountychild support division between 1997 and 1999.  In 1999, it received “paperwork” he signed with an “attached paystub.”

On this record, Husband did not act with reasonable diligence in moving to set aside the default judgment and was at least 10 years beyond the statutory deadline.

Husband Was Not Entitled to Equitable Relief

Where “‘a motion to vacate a default judgment is made’ beyond the statutory deadline for relief, it is “‘directed to the court’s inherent equity power.'”  (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.)

A party seeking equitable relief “must satisfy three elements:  ‘First, the defaulted party must demonstrate that [he or she] has a meritorious case.  Secondly, the party . . . must articulate a satisfactory excuse for not presenting a defense to the original action.  Lastly, the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.'”  (Gibble v. Car-Lene Research, Inc.supra, 67 Cal.App.4th at p. 315.)  The CA said the trial court properly determined Husband was ineligible for relief because he did not act with due diligence and did not testify or present admissible evidence at the hearing to show he had a meritorious defense or to demonstrate why laches did not bar equitable relief.  (Irmo Park (1980) 27 Cal.3d 337, 345.)

There are specific time limits for equitable relief involving motions to set aside support orders.  Irmo Zimmerman (2010) 183 Cal.App.4th 900, 910, holds the “‘traditional “equitable” set-aside relief is statutorily preempted with regard tosupport orders.’   [FC §] 3691 is the exclusive set-aside remedy.”  Consequently, based on the trial court’s findings, Husband’s motion was filed well beyond that statute’s six-month limitations period from the date of discovery.  (FC § 3691 (c)(1).)

The CA dismissed Husband’s reliance on County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215 where the Court of Appeal said the trial court has inherent power to set aside a judgment obtained based on a false return of serviceeven when the statutory period has run. (Id. at p. 1229.)  But Gorham also says equitable relief from a default judgment or order is available only in exceptional circumstances” as was the case there because the process server committed perjury by falsely claiming he served Gorham at one address at a time when Gorham was in jail.  Nothing like that was the case here.

The Motion to Quash the Substituted Service

CCP § 415.20 (b) provides that a summons may be served by leaving a copy of the summons and complaint at the usual mailing address in the presence of an adult apparently in charge of the address.  The person served must be informed of the contents of the documents served and a copy of the summons and complaint must thereafter be mailed to the same address.

The CA rejected Husband’s claims the process server did not act reasonably because he did not have valid address information, and did not attempt attempts to personally serve him at his office.  “[T]he trial court [was entitled to] find that Sloan acted reasonably.  It noted that he obtained the address information from a governmental source the court found to be reliable – the District Attorney’s Child Support Division records.”  Moreover, the adult who accepted the summons and complaint confirmed that the mailing address information in the L.A.County DCSS records was correct.

Husband also claimed the service was invalid because the process server’s declaration did not confirm the age of the person with whom the summons and complaint was left.  The CA pointed out that the portion of CCP § 417.10 describing what the “affidavit shall recite” does not require a reference to the person’s age.  It requires only the person’s name “and, if appropriate, his or her title.”  In any event, even if the service affidavit were arguably incomplete, the omission or irregularity does not automatically render the service void. [Citations]  “Where a reasonable attempt has been made to comply with a statute in good faith, and there was no attempt to mislead or conceal, the doctrine of substantial compliance holds that the statute may be deemed satisfied.”  (Davis v. Allstate Ins. Co.supra, 217 Cal.App.3d 1229, 1232.)

Finally, it was Husband’s burden to show the person served was not the proper age. Here Husband presented no evidence about the age of the person served and never claimed that person was under 18.  “The trial court could reasonably rely on the rebuttable presumption that official duty is regularly performed and that the [process server], as an agent of the district attorney and a registered process server, would not be expected to serve a minor.  (Evid. Code, §§ 647, 664.)

County of Santa Clara v. Edwards – Unpublished opinion of District 6 (Filed February 21, 2013

The State’s system of automatic payment of child support arrears allows levies without a court order – after notice by the financial institution – on the support obligors’ bank accounts.

In 1995 at the request of the DCSS, the trial court ordered Edwards to pay monthly child support of $347, set his child support arrearage at $3,470 and ordered him to reduce the arrearage at the rate of $100 per month.

In 2010, Edwards filed an OSC to modify his child support obligation.  He asserted he had overpaid child support for more than ten years because he made support payments to Californiaand Nebraskathat covered the same period of time.  Following a series of hearings, the trial court adopted the DCSS audit of Edwards’ payments and found that he owed back child support of $169.50.  Edwards appealed.  AFFIRMED

The Alleged Overpayment

After noting “serious procedural deficiencies” in Edwards’ brief, the CA said his central challenge to the trial court’s findings and order was that he was entitled to reimbursement of substantial funds he claims were overpaid.  Edwards’ argument was that that DCSS’s claim that $6,300 in child support had accrued before February 1995 was wrong.  He said this sum had been determined not to be owed in proceedings inNebraskaand therefore could not be included in the Department’s accounting.

The trial court rejected his arguments and the CA said substantial evidence supported its conclusion.  “The trial court received into evidence the accounting of the Department, along with a supporting payment history which was represented as corroborating that all payments received by the state ofNebraskawere properly credited in the Department’s accounting.  The court also considered evidence from the Department, including two declarations.  Both declarants indicated that the Department properly credited in its accounting all payments made to the state ofNebraska.”

The Allegedly Improper Bank Account Levy 

Edwards argued that levies in 2010 of $8,973 were taken from an account that held a retroactive payment of social security disability payments.  He claimed under both federal law (15 U.S.C. § 1673) andCalifornialaw (§ 5246) any levy should not have exceeded five percent of his total monthly disability payment.  The CA rejected the argument.

The CA explained that the levies followed the statutory procedure outlined by the court in Irmo LaMoure (2011) 198 Cal.App.4th 807, 815:  “Under the Financial Institution Data Match (FIDM) system, the State DCSS provides financial institutions with the State DCSS’s files of delinquent support obligors.  The financial institutions are required to determine if there is a match with their own account-holders.  Upon receiving a notice or order to withhold issued by the State DCSS, financial institutions are required to notify the obligor of the notice or order, and withhold from the obligor’s accounts the amount of support arrears stated in the notice or order.  ¶ Before the funds are transmitted to the State DCSS, the obligor may file with the local DCSS a claim of exemption based on financial hardship.”

As the LaMoure court emphasized, it is the depository institution not the State DCSS that provides the written notice of levy to the obligor.  (LaMoure, at pp. 816-817.)  “A court order authorizing such a levy is not required.  The levy is founded on an existing support order, overdue support, and the existence of an order by operation of law requiring payment of support arrears.”  (Id. at p. 819.)  Subdivision (j)(3) of section 17453 permits an obligor whose property is the subject of a levy to submit an application for a claim of exemption.  The claim must be made within 10 days after the date the notice of levy was served on the judgment debtor. If an exemption is not claimed, it is waived. (CCP § 703.030 (a).)

Here, Bank of America gave Edwards and his wife written notice that it intended to remit $7,209 from his bank accounts.  There is no evidence that Edwards submitted a written claim of exemption to the levy, either within 10 days of the written notice or at any time thereafter.  Thus, his claim of exemption was waived.  (CCP §§ 703.030 (a); 703.520 (a).)

The CA also rejected Edwards’ claim the levy should have been limited to no more than five percent of his gross monthly Social Security Disability payment under section 5246.  “The levy of which Edwards complains was not a notice of assignment served upon ‘an employer.’  Rather, the levy was upon a banking institution with which Edwards maintained bank accounts.  Therefore, any limitations imposed under section 5246 had no application to the challenged levy.”

Irmo Golka – Unpublished opinion of District 4, Division 3 (Filed February 21, 2013)

  1. Husband’s failure to disclose financial data warranted sanctions.
  2. Well-timed financial reversals and doom are the sheet music of family law.
  3. Expressing frustration is not evidence of judicial bias.

Husband and Wife stipulated to a judgment that dissolved their marriage and resolved all issues except one; viz., how attorney fees and costs should be allocated and whether sanctions should be assessed.

Following a trial of the reserved issues, the trial court colorfully expressed doubt about Husband’s credibility.  CitingIrmo Feldman [(2007) 153 Cal.App.4th 1470, the trial court ordered Husband to pay $15,000 to Wife’s accountant and $30,000 to her attorney.  The sanctions were to be paid by the escrow company from Husband’s share of the proceeds from the sale of the family residence.

Husband objected to the proposed judgment on reserved issues and filed a notice of intent to move for new trial.  He claimed the neglect of his counsel in not providing the Court with facts that would permit the Court to “make a reasonable and fair ruling regarding sanctions” was excusable and a surprise.

Husband also referenced “irregularity in the proceedings of the Court and the adverse party and abuse of discretion which prevented a fair trial” and asserted the court’s sanctions order was excessive, arbitrary and capricious and had no support in the evidence.  Husband also asserted his former attorney told him the judge was a personal friend and “assured him of a favorable outcome.”

Finally, Husband claimed the trial judge evidenced his bias against him in his remarks about the family law processes and litigants.

The trial court denied the motion for a new trial.  Husband appealed.  AFFIRMED

Sanctions

FC § 271 authorizes an award of attorney fees and costs as a sanction for uncooperative conduct that frustrates settlement and increases litigation costs.”  (Irmo Fong (2011) 193 Cal.App.4th 278, 290; see Feldman [sanctions of $250,000 and attorney fees of $140,000 approved for the husband’s failure to disclose financial information to the wife];Irmo Sorge (2012) 202 Cal.App.4th 626, 652 [ §§ 271 and 2107 authorized sanctions and fees for breach of a party’s fiduciary duty of disclosure].).)

The CA rejected Husband’s argument that the evidence did not support the trial court’s finding he engaged in sanctionable conduct and that the sanction did not impose an unreasonable financial burden on him.  “Wife’s expert forensic accountant testified that certain bank statements regarding Husband’s business had to be subpoenaed because Husband failed to produce them pursuant to discovery orders.  The accountant testified … his fees in this case were ‘very, very high’ because ‘we had to reconstruct the activity in the bank accounts because [Husband]’s business bookkeeping was not being maintained in a proper manner ….'”

The CA cited the trial court’s observation that if business was as bad as Husband claimed, then “Why not open the books?” and said the trial court’s skepticism about Husband’s financial claims was reasonable.  The CA also noted the trial court’s observation that bank statements and other financial materials that had been withheld before trial “if by magic appeared … right around the time his feet [were] in the fire going to trial [even though] he had a fiduciary duty … to produce this stuff without any request at all, period.”  The CA said substantial evidence supported the trial court’s finding that “the cost of this litigation was doubled by Husband’s] conduct.”

The CA also rejected Husband’s contention the amount of the sanctions imposed an unreasonable financial burden on him in violation of section 271.  “The record shows the trial court considered Husband’s financial situation in determining the amount of the sanctions award.”  Wife’s expert forensic accountant testified that Husband’s monthly controllable cash flow was $7,860.  “Significantly, the court knew Husband could pay the amount of sanctions it had ordered from the proceeds of the sale of the family residence; therefore, the court did not order sanctions in an amount Husband was unable to pay.”

The CA also rejected Husband’s argument the trial court’s rulings prevented him from presenting evidence in support of his theory of the case because he failed to offer any analysis or citation to legal authority explaining why any given evidentiary ruling constituted error or how he was prejudiced by it.

Judicial Bias

The CA rejected Husband’s contention the trial court evidenced judicial bias based on four separate instances when the court expressed frustration with the parties and their counsel.

“First, in response to Husband’s counsel’s argument that Husband was out of money and a sanctions award would impose an unreasonable financial burden on him, the trial judge expressed frustration with the trend he had observed in family law cases where the parties spend all their money litigating and then complain about being sanctioned because they would not have a lot of money left.  The judge stated, “my response to that is:  You guys should have thought about that in the first place when you both decided you want to go forward to do battle and that goes for both sides.”  The trial judge’s comment, which was equally directed to both Husband and Wife, does not reflect any form of bias against Husband.

“Second, Husband argues the judge demonstrated bias against Husband and his counsel and prejudgment of the case, by informing Husband’s counsel, after what the judge considered to be inefficient direct examination at the trial to determine sanctions, that “[i]f this litigation is any example of what went on before, your client better bring a checkbook.”  But, expressions of understandable frustration do not establish bias.  (Roitz v. Coldwell Banker Residential Brokerage Co.supra, 62 Cal.App.4th at p. 725.)  Furthermore, the judge’s isolated statement in the middle of trial does not disclose the judge’s prejudgment of any issue in the case.  In any event, the expression of such a view on a legal or factual issue in a proceeding is not grounds for disqualification under Code of Civil Procedure section 170.2, subdivision (b).

“Third, Husband’s counsel argued at the trial on the reserved issue that he had been ‘completely vindicated’ as to Wife’s allegations that Husband had engaged in domestic violence.  The trial judge corrected Husband [and explained the basis for his earlier ruling.]  The judge’s comments clarifying the legal significance of the denial of the preliminary injunction do not reflect bias.

“Finally, Husband contends the judge demonstrated bias against him personally and against self-employed husbands by the following comments:  [T]he question that I have is all along [Husband] has said, ‘my business is in the tank.  I’m in building related, construction related industry and it’s going down hill and it’s going counter clockwise down the sink and I’m broke basically.’  I can’t tell you over the last nine years as a judge and 30 some odd years as a lawyer how many times I’ve heard that same song.  [¶] They ought to have sheet music for it in divorces.  Murphy’s Law of divorce is that right around the time the petition was filed there’s no overtime down at the plant.  The government grants just ran out.  Business is lousy and nobody is paying anything as if by magic right around the time the divorce decree is inked . . . all of a sudden now I’m a participating equity partner down at the plant.  The government is now granting business by some miracle it’s gotten a whole lot better.  [¶] But to some extent I believe it because in the construction related business and home improvement business, business may be bad.’  The trial judge’s comments reflect his experience with parties who are not forthright about their income in family law cases, not about self-employed husbands or Husband in particular.  In fact, the judge expressly stated that he believed business had been bad for Husband.”

Irmo Bischler – Unpublished opinion of District 4, Division 1 (Filed February 26, 2013)

Failing grades and mother’s alleged social instability were not changed circumstances that warranted a change of custody.

Father and Mother separated in 2000 and were divorced in 2003.  In a final custody order, Mother was given physical custody of their three children and Father was given visitation.  The children resided primarily with Mother inCaliforniaand stayed with Father in his home inIllinoisduring school breaks.

In 2011, Father asked the court to award him physical custody of the two remaining minor children and to install a parenting plan that provides they will live with him inIllinois.  Father alleged that the children were suffering emotionally and academically.  He said that since 2008 Mother and the children have lived with their maternal grandparents but that more recently Mother has lived elsewhere with her boyfriend.  Father said the children’s emotional distress and neglect was reflected by their failing grades and misbehavior in school.  Others submitted testimonials as to Father’s parenting.

Mother denied moving out of her parents’ home but acknowledged she spent some weekends with the children at her boyfriend’s home.  Mother added that she and her boyfriend had now purchased a home and lived there with the children and her boyfriend’s children.  Mother acknowledged the children’s difficulty in school but stated their academic performance was improving.  Mother alleged their son has a processing deficit that has been addressed through an IEP.  Mother claimed she and her boyfriend provide a stable, enjoyable home environment for the children.  Finally, Mother testified that Father is a long haul truck driver and is away from home three to four or more nights per week.

The parties’ son testified that he had a good relationship with his father and said he preferred to live with Father although he said he would miss his sisters if they stayed inCalifornia.  Regarding his grades, the son testified that during his most recent school year he failed all of his classes but explained that he changed schools and his grades were improving.  The FCS counselor recommended no change in the custody order.

Following an evidentiary hearing, the trial court denied Father’s request for a change of custody and adopted the FCS counselor’s recommendations.  The court commented that Mother had addressed the children’s academic problems and noted that Father had not presented any evidence about what school the children would attend or what resources would be available inIllinoissaid nothing about whether he was “going to be around.”  The court rejected the parties’ son’s expressed preference because if he were sent toIllinoisthe siblings would be separated.

Father appealed.  AFFIRMED

Although the CA and Father characterized Father’s motion as a “move-away request,” the relief he sought was simply to modify a long-standing existing custodial order and parenting plan.  Neither Father nor Mother had announced an intention to relocate when Father asked the court to change the custodial arrangements.  Father’s change of custody request was based upon what he perceived to be the children’s emotional distress as evidence by their failures academically and misbehavior.

Father’s appeal alleged he was entitled to reversal because the trial court did not address such matters as the instability reflected by the children’s academic performance and by his contention Mother had abandoned them to their grandparents.  He also criticized FCS counselor’s failure to interview the children and Mother’s failure to inform Father about the son’s IEP.   The CA rejected each of his arguments.

First, Father waived his argument about the trial court’s alleged failure to address certain facts because he did not request a statement of decision on these issues.  (FC § 3022.3; Irmo Hebbring (1989) 207 Cal.App.3d 1260, 1274;Irmo Ditto (1988) 206 Cal.App.3d 643, 647.)  “Absent a request for specific findings, it will be presumed on appeal that the trial court found all facts necessary to support the judgment.  (Irmo LaMusga (2004) 32 Cal.4th 1072, 1093;Hebbring at p. 1274.)

Second, Father’s challenge attacked the court’s finding that if his “move-away request” were granted the siblings would be split up.  He suggested the trial court thus misunderstood his motion because he intended it to apply to all three children.  “Contrary to Father’s assertion, the record shows the court understood the move-away request was for all the children. … ¶ Further, absent a showing that the other two children would or should go to live with Father, the trial court could properly consider that an order granting Son’s preference would separate the siblings. …  When a noncustodial parent seeks to change a permanent physical custody order, ‘the noncustodial parent has a substantial burden to show that ‘some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.’  (LaMusga at p. 1088; Irmo Brown & Yana (2006) 37 Cal.4th 947, 956.)  Absent such a showing, the court ‘should preserve the established mode of custody” so as to ‘protect stable custody arrangements.’  (LaMusga, supra, at p. 1088.)”

Father’s complaints about Mother’s living arrangements and the children’s failing grades were explained by Mother and the CA said the court was entitled to credit this information and to reject Father’s assertion that it was in the children’s best interests to change the long-standing physical custody arrangement.  “Father was seeking to significantly alter the custodial arrangement that had been in place for almost 12 years, and he bore a substantial burden to justify this change.  We will not upset the trial court’s discretionary ruling on this issue unless ‘there is no reasonable basis upon which the trial court could conclude that its decision advanced the best interests of the child.’  (Irmo Melville (2004) 122 Cal.App.4th 601, 610.)”

Irmo Lim & Carrasco – Unpublished opinion of District 6 (Filed February 26, 2013)

A work schedule reduced by 20% is a reasonable work regimen that is in the best interests of the children. Basing support on wife’s reduced earnings is not a deviation from guideline support.

Wife and Husband married in 2003 and separated in 2011.  They have two children.  Husband is a college professor with average monthly earnings of $9,156.  Until 2011, Wife was a partner in a law firm where her monthly earnings averaged $27,237.

In 2011, Husband filed an OSC seeking orders for custody, visitation, child support and temporary spousal support.  Husband alleged his work schedule was flexible and allowed him to be primarily responsible for the children’s care.  He also claimed that although Wife was able occasionally to work from home, her job required her to work long hours.

Wife’s response agreed to pay Husband guideline temporary child support of $1,612 per month.  Wife also said that following a medical leave of absence she intended to return to work at 80% of full-time employment to care for the children.  The reduction in her work schedule reduced her monthly earnings from $27,500 to $22,000 and made her ineligible for a bonus.  She resisted Husband’s request for temporary spousal support citing his acts of domestic violence against her and the children that led to the medical leave of absence from her firm.

At the hearing, Husband and Wife announced a settlement of all issues other than the issue of whether temporary child and spousal support should be based on Wife’s full-time salary or her reduced salary based upon an 80% work schedule.  Wife testified reducing her time with the law firm was in the children’s best interests because it allowed her to care for them at their tender of ages of 3 and 4.  She explained that to meet a partner’s goal of billing 2,000 hours per year she would have to work 80 hours per week.

Husband’s attorney simply argued both parents were required to work full-time.

The trial court found that “full time work” in a big firm is not a 40-hour workweek but is instead measured by a certain number of billable hours per year that a partner is required to meet however many hours per day that consumed.  The trial court also found that even an 80% schedule will require a substantial commitment of time by Wife and concluded that it is in the best interests of the children for her to maintain the reduced 80% schedule.  Guideline support was based on her actual income at $22,000 a month.  The court set child support at $1,568.00 per month and temporary spousal at $2,705.00 per month.

Husband appealed.  AFFIRMED

 Earning Capacity

A parent’s earning capacity may be considered in determining spousal and child support.  ” ‘[F]or purposes of determining support, “earning capacity” represents the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.’ ” (Irmo Cheriton (2001) 92 Cal.App.4th 269, 301; § 4058 (b).)  “But no authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children.’ (§ 4058 (b).)”  (Id. at p. 301.)

Irmo Simpson (1992) 4 Cal.4th 225, 234 addresses the issue of whether earning capacity should “properly be measured by the work regimen engaged in by the supporting spouse during the marriage even if such regimen was extraordinary, requiring excessive hours or an onerous work schedule.”  There, the Supreme Court concluded it should not, “but instead [should generally be based] upon an objectively reasonable work regimen as it would exist at the time the determination of support is made.”  (Id. at pp. 234-235.)   “A regimen requiring excessive hours or continuous, substantial overtime, however, generally should be considered extraordinary.”  (Id. at pp. 235-236.)

In the present case, the CA said the trial court properly declined to impute income to Wife based on her earning capacity as a full-time law firm partner.  As a full-time law firm partner Wife had to work excessive hours and on an 80% schedule she would still have to work at least 40 hours per week to meet a partner’s billable hours requirement.  The CA approved the trial court’s determination that a reduced schedule was in the children’s best interest and that the court properly calculated guideline support on the basis of Wife’s reduced income.

“The evidence showed that Wife’s income remained high, at $22,076.00 per month, even working an 80% schedule as a law firm partner.  There was nothing to suggest that Wife had divested herself of her earning capacity at the expense of Husband or their children.  (See, e.g., Irmo Hinman (1997) 55 Cal.App.4th 988, 999.)  Further, Wife’s evidence … was that a reduced work schedule would allow her more time to care for her young children.  The trial court did not err in finding that Wife’s reduced work schedule was in the best interest of the children, since “sometimes ‘the best interests of the children’ are promoted when parents [reduce their work hours] so as to be able to spend more time with their children.’ ”  (Irmo Mosley (165 Cal.App.4th 1375, 1390; see also Irmo Bardzik (2008) 165 Cal.App.4th 1291, 1312-1313 [§ 4058 does not require “squeeze-the-last-drop workaholism” from either parent].)”

Finally, the CA rejected Husband’s argument that the trial court’s order was a deviation from guideline that required specific findings.  Wife’s actual income from her 80% work schedule was $22,000 per month and basing guideline child support on these earnings was not a deviation fromCalifornia’s formula for support.

Irmo Weiss & Eastman – Unpublished opinion of District 4, Division 3 (Filed February 28, 2013)

When a couple obtains a confidential marriage license without paying the statutory fee, and later solemnize their marriage with a qualified officiant who signs the license, they are legally married.

Wife and Husband obtained a confidential marriage license from the county clerk in  1994.  The license was signed by both parties, as well as by a deputy clerk and its date of issue was “5/12/1994.”  Two days later, Wife and Husband’s marriage was solemnized and certified by an Episcopal priest.

Wife’s petition to dissolve the marriage was filed in February 2005.  Husband’s response claimed the parties were never legally married but after a contested trial, the court found in Wife’s favor.  A bifurcated “status only” judgment of dissolution was entered in October 2009.  A judgment resolving reserved financial issues was entered in January 2011.

In March 2012, Husband moved to vacate the judgment on reserved financial issues pursuant to FC § 2120 et seq.  He alleged Wife committed fraud and perjury by claiming they obtained a marriage license when in fact, he said, they both agreed not to be married.  Husband explained that they “filled out the application” and signed it along with the clerk who told them to go into the adjoining room to pay the $67.25 to actually obtain the license.  Husband said he wrote the check but before submitting the payment, he claimed               Wife stated she was unsure about going through with the marriage.  Husband said they then left the courthouse with the license but without paying the required fee.

Two days later, Wife and Husband went ahead with the wedding ceremony because, according to Husband, many of their friends and family were set to attend.

The priest who performed the service signed the license document, but did not retain it for registration because, he claimed, Wife told him she would take care of it.  Husband alleged he and Wife agreed not to pay for the license or to register their marriage, and always understood they were not legally married.  He claimed the parties “never obtained the marriage license,” and that Wife had misrepresented to the court they were legally married.

Wife testified that she believed Husband gave a check to the clerk for the license fee when they were at the courthouse and denied saying anything to him about not wanting to go through with the marriage or not wanting to obtain a valid license.  She stated unequivocally that she considered the parties to have been married for nearly 11 years.

The trial court denied Husband’s motion to vacate the judgment.  The trial court specifically found Wife’s testimony to be “truthful” while Husband’s testimony was “evasive” and less credible.  The court noted that FC  §§ 350 and 351 say nothing about license fees and found that a marriage license was issued.  The trial court ruled that even if the fee was not paid it did not affect the validity of the license.
Husband appealed.  AFFIRMED

FC § 2120

First, the CA said Husband’s motion said nothing that entitled him to relief under FC §§ 2120 and 2121.  “[T]he remedy is limited to situations where a party is claiming the division of marital property or award of child or spousal support was inequitable.” (Section 2121 (a).)

Here, Husband’s motion to vacate did not challenge the court’s adjudication of support or its division of marital property.  What he was challenging was the court’s judgment dissolving the parties’ marital status that was entered in 2009.  But Section 2121 does not empower a court to relieve a party from the portion of the judgment adjudicating marital status.”

Moreover, the CA said Husband failed to prove any grounds for vacating the dissolution judgment under the statutory scheme. Wife’s alleged perjury regarding the circumstances surrounding the parties’ marriage was not related to “the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement,” as specified in § 2122 (b).  This statute provides that it governs both “[t]he grounds and time limits for a motion to set aside a judgment,” and the designation of “perjury” as a ground for relief is followed immediately a sentence specifying a time limit only for “[a]n action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement . . . .”

Lack of Jurisdiction

Husband’s focus on appeal was the trial court’s specific finding that the fee for the marriage license was “probably not paid.”  He argued from this finding that the failure to pay the fee invalidated the license “as a matter of law” and that the court acted in excess of its jurisdiction when it ruled the parties’ marriage was valid.

The CA began this discussion by noting claims that a court acted in excess of its jurisdiction cannot be asserted in the first instance after a judgment has become final.  “[A] final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties.  (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725; Irmo Murray, supra, 101 Cal.App.4th at p. 599.)”

The CA also rejected Husband’s jurisdictional argument on the merits.  Husband relied on FC § 501 that governs the issuance of confidential marriage licenses.  The CA said § 501 provides that the county clerk shall issue the confidential marriage license “upon the personal appearance together of the parties to be married and their payment of the fees required . . . .”  The CA said a long line of cases holds that even if the clerk is required to collect mandatory fees, its failure to do so does not render the service a nullity.  (Tregambo v. Comanche M. and M. Co. (1881) 57 Cal. 501, 506; Foley v. Foley (1956) 147 Cal.App.2d 76, 78.)  “The clerk’s authority to perform a service is not dependent on his or her collection of the required fee. … If the clerk issues the license without fulfilling that obligation, or otherwise commits an error in the issuance of the license, that failure cannot be relied upon as a basis to invalidate the marriage.”

The CA agreed with the trial court’s determination that “[Husband’s] claim that he never obtained a license . . . because the fees were not paid, . . . is incorrect.  [¶] The license was issued.  The ceremony took place and both of these people stood up before each other and others and announced that they were, through this ceremony, man and Wife, Husband and Wife.  They were married.”

 

?WIetPD??.?m: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; background-color: rgb(255, 255, 255);”>The CA also rejected Husband’s jurisdictional argument on the merits.  Husband relied on FC § 501 that governs the issuance of confidential marriage licenses.  The CA said § 501 provides that the county clerk shall issue the confidential marriage license “upon the personal appearance together of the parties to be married and their payment of the fees required . . . .”  The CA said a long line of cases holds that even if the clerk is required to collect mandatory fees, its failure to do so does not render the service a nullity.  (Tregambo v. Comanche M. and M. Co. (1881) 57 Cal. 501, 506; Foley v. Foley (1956) 147 Cal.App.2d 76, 78.)  “The clerk’s authority to perform a service is not dependent on his or her collection of the required fee. … If the clerk issues the license without fulfilling that obligation, or otherwise commits an error in the issuance of the license, that failure cannot be relied upon as a basis to invalidate the marriage.”

The CA agreed with the trial court’s determination that “[Husband’s] claim that he never obtained a license . . . because the fees were not paid, . . . is incorrect.  [¶] The license was issued.  The ceremony took place and both of these people stood up before each other and others and announced that they were, through this ceremony, man and Wife, Husband and Wife.  They were married.”

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