Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. DR 25775, E. Jeffrey Burke, Judge
Christine C. Lyden for Defendant and Appellant.
J. Terrence O'Farrell for Plaintiff and Respondent.
COFFEE, J.
Kenneth James Shaw appeals from an order granting Lea Anne Shaw's motion to set aside a post-judgment enforcement order. The court set aside the order for lack of personal service. (Fam. Code, § 215 formerly (Civ. Code, §§ 147 & 4809).) Ken argues that Lea waived the service defect when she and her attorney appeared to contest the matter on the merits. We disagree and affirm.
We will refer to the parties by first name for clarity and mean no disrespect.
All statutory references are to the Family Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Ken and Lea were married in 1991. They divorced in 1997. The judgment of dissolution divided their assets according to a marital settlement agreement. One of the assets was a 43.98 percent interest in a partnership which operates an office building. Lea had owned the partnership interest before marriage. The judgment of dissolution awarded Ken and Lea each "[a]n undivided 21.9991 [percent] interest in the Partnership interest (capital and income accounts)..." as their separate property.
Ten years later, without Ken's consent, Lea sold a 43.9819 percent interest in the partnership to a third party. Ken and Lea were, at the time, engaged in civil litigation in an unrelated matter in Los Angeles. Ken learned of the sale and demanded half of the sale proceeds. Lea refused.
Ken filed an application for an order to show cause (OSC). He requested half of the sale proceeds and an accounting. On March 3, 2008, the court issued an OSC and set the hearing for April 1.
Ken did not personally serve Lea with the OSC papers. His attorney, Christine Lyden, served Lea's former dissolution counsel, Glen Lewis. Lewis was still Lea's attorney of record, but the dissolution case had been dormant for 10 years. Lewis had not talked to Lea for two years and he did know how to locate her. Lewis called Lyden and told her this. Lyden responded that Lewis was "not to worry because she had served [Lea's] current attorney, who was handling a separate civil case pending in Los Angeles, [Kenneth McKesson]." Lewis took no action because he thought McKesson would handle the matter.
Lyden had mailed the papers to McKesson, but she referred to them in her cover letter as "courtesy copies" and she expressly acknowledged that McKesson was not attorney of record in the dissolution case. McKesson took no action because he assumed dissolution counsel would handle the matter.
"While you are not counsel of record for Ms. Shaw in the Family Law proceeding, I am providing you with courtesy copies of the documents which are being served today...."
About a week after Lewis was served, he left a telephone message for McKesson but it was not returned. Almost three weeks after service, on March 25, Lewis sent a fax to McKesson asking him to call "ASAP to advise if [Lewis was] to do anything relative to the motion scheduled for April 1...." McKesson did not respond, but he "scrambled" that day to prepare and file a response to the OSC.
McKesson declares that he was not authorized to respond to the OSC on Lea's behalf and that he is unfamiliar with family law. The document he filed is a list of damages in the Los Angeles action. It is totally unresponsive to the OSC, as McKesson concedes. It was served and filed late and did not include the exhibits to which it referred. McKesson declares that he was not aware whether there was any defense to the OSC and he hoped the parties could resolve the matter in the pending civil litigation. He did not have authority to represent Lea in the dissolution case and he did not file a substitution of attorneys.
The response was due nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).)
On Friday, March 28, three days after McKesson filed the response, he called Lea and told her about the OSC. She declares this was her first knowledge of it. McKesson told Lea to call a telephone number on April 1 to appear telephonically at the hearing.
Lea appeared telephonically at the hearing and McKesson and Lyden appeared in person. The hearing was not transcribed and there is no settled statement. Lea declares that after counsel spoke, the court asked her if she had anything to say. She declares that she had not seen the moving papers and "all [she] could do was to try and repeat what Mr. McKesson had stated." The court ordered Lea to either pay half the sale proceeds to Ken or to transfer the full sale proceeds to Ken's attorney to hold in trust.
Lea retained new counsel in the dissolution case. She moved to set aside the order because she had not been personally served with prior notice of the OSC as required by section 215 and, alternatively, because the order was entered as the result of McKesson's admitted neglect. (Code Civ. Proc., § 473, subd. (b).) Lea declared that if she had a meaningful opportunity to respond to the OSC, she could have demonstrated that Ken was not entitled to half of the sale proceeds because he was never awarded any interest in the partnership building, was only awarded a share of the "capital and income accounts," and he never paid partnership expenses. Lea demonstrated that Lyden knew Lea's current address when she served Lewis. One week earlier, Lyden had served Lea directly with a substitution of attorneys.
The trial court granted the motion and set the order aside. It did not state its reasons.
DISCUSSION
Section 215 provides that after entry of judgment of dissolution, no subsequent order in the proceedings is valid unless prior notice is served upon the party. "[S]ervice upon the attorney of record is not sufficient." (Ibid.) Failure to comply with section 215 is "the equivalent of failure to serve summons and complaint, which renders a judgment void on its face and subject to collateral attack at any time." (In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033, 1039-1040.) The question of whether an order is void on its face is a question of law that is reviewed de novo. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.) Here, the order is void on its face because Ken did not personally serve Lea with the OSC papers.
Ken concedes that he did not comply with section 215, but argues that Lea waived the defect when she and her counsel appeared for the hearing on the order to show cause. A party may waive their right to personal service pursuant to section 215 by personally appearing after an authorized attorney has accepted service on their behalf. (Ruszovan v. Ruszovan (1969) 268 Cal.App.2d 902, 906; In re Marriage of Askren (1984) 157 Cal.App.3d 205, 211.) Whether a party has waived personal service is a question of fact, the resolution of which we review for abuse of discretion. (In re Marriage of Roden (1987) 193 Cal.App.3d 939, 942-943.)
The trial court was within its discretion to find no waiver here. Lea appeared but no authorized attorney had accepted service on her behalf. The lack of personal service created the very problem that section 215 and its predecessor were designed to cure. (In re Marriage of Askren, supra, 157 Cal.App.3d at p. 211.)
Our courts decline to recognize exceptions to section 215 that would "open the door to factual disputes over oral communications between counsel and often hostile parties." (In re Marriage of Roden, supra, 193 Cal.App.3d at p. 945.) In Roden,a finding of waiver was reversed even though the client told opposing counsel to serve his attorney of record with the post-dissolution motion. As in this case, the attorney of record reported that he no longer represented the client. In Marriage of Kreiss, a finding of waiver was also reversed when husband served an attorney who said he represented the wife. He was not wife's attorney of record, there was no convincing evidence that the wife had actual notice of the hearing, and neither she nor her attorney appeared at the hearing.
Appellant relies on Ruszovan v. Ruszovan, supra, 268 Cal.App.2d 902 and In re Marriage of Askren, supra, 157 Cal.App.3d 205, the two published cases in which waivers of section 215 (or its predecessors, Civ. Code, §§ 147 & 4809) have been found. In both cases, post-judgment dissolution proceedings were ongoing and an authorized attorney, who was in touch with the client, accepted service on the client's behalf. In Ruszovan, a former husband tried to personally serve his former wife at her workplace. Her employer, who had become her attorney and her new husband, intervened and told the process server that he was authorized to accept service. He had been representing her in ongoing visitation matters. He obtained a stipulation to continue the hearing and appeared to contest it. Nothing in the record refuted his statement that he was authorized to accept service. The court wrote that the statute "might well have read" that "service upon the attorney of record shall not be sufficient unless such attorney makes it clear that he continues to be the attorney of record." (Roszovan, at p. 907.) The facts of Ruszovan are "unique" (Gortner v. Gortner (1976) 60 Cal.App.3d 996, 1000) and "rather unusual." (In re Marriage of Roden, supra, 193 Cal.App.3d at p. 943.)
In In re Marriage of Askren, supra, 157 Cal.App.3d 205, the court affirmed an order against husband for fees and costs notwithstanding lack of personal service. Husband had just launched an unsuccessful attack on the judgment through the same attorney, who waived the defect when he accepted service and appeared and contested the request. "A defense to such attack, whether by denial or counterattack, is made on the very person who is not only currently in touch with the client, but the person best able to deal with the counterattack." (Id. at 211.) Here, the dissolution case had been inactive for 10 years. Neither Lewis nor McKesson had appeared in it recently on Lea's behalf and Lyden knew that neither was authorized to accept service for her.
The purpose of section 215 and its predecessor was to cure the problems that arose years after dissolutions were final, when parties served requests for modification or enforcement on attorneys of record who had long since lost track of their clients. (In re Marriage of Askren, supra, 157 Cal.App.3d at p. 211.) "The attorney then had to make a perfunctory and often ineffective challenge with no help from the former client and with no recent information with which to defend the client's interest." (In re Marriage of Kreiss, supra, 224 Cal.App.3d at p. 1037.) The same problem arose here. Ten years after the dissolution was final, Lyden served the attorney of record, Lewis, who had lost contact with Lea. Lyden assured Lewis that another attorney would handle the matter. Lewis filed no response and had no way of contacting Lea. The other attorney, McKesson, did eventually respond, but the response was untimely, ineffective, and prepared without help from the Lea.
Ken argues that Lea waived service because neither she nor her counsel objected at the hearing to the lack of personal service. The hearing was not transcribed and there is no settled statement. It is the appellant's burden to demonstrate error with an adequate record on appeal. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Lea did appear at the hearing, but there is nothing in the record to demonstrate that she or her attorney unambiguously waived the requirement of section 215.
DISPOSITION
The judgment is affirmed. Counsel for respondent is awarded costs on appeal.
We concur:YEGAN, Acting P.J. PERREN, J.