Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of San Diego County, No. DF177327, Adam Wertheimer, Commissioner.
McDonald, J.
William S. Brown, aka Tad Brown (Husband), appeals an order of the trial court denying his motion to vacate its registration of an Ontario, Canada, court order requiring him to pay monthly child and spousal support to his former wife Gayle Brown (Wife). On appeal, he contends the trial court erred by denying his motion to vacate registration of the Ontario court order because: (1) the Ontario court order is too uncertain to enforce; (2) the province of Ontario, Canada, is not a "state" within the meaning of the Uniform Interstate Family Support Act, as enacted by the California Legislature (Fam. Code, § 4900 et seq.) (UIFSA), because Ontario's procedures for issuance and enforcement of support orders are not substantially similar to California's procedures; (3) the Ontario court order was obtained without affording him due process of law; (4) the Ontario court order was obtained through extrinsic mistake; and (5) he made full or partial support payments for which the trial court did not give him credit.
All statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In 1990, Husband and Wife married. In or about April 2001, they separated while residing in Ontario, Canada. Their three minor children continued to reside with Wife. In November 2002, in Wife's divorce proceeding against Husband, the Ontario court ordered Husband to pay Wife interim monthly child support of $5,653 and interim monthly spousal support of $3,500, commencing August 1, 2002.
All dollar amounts set forth in this opinion are in Canadian dollars.
On April 14, 2003, the Ontario court entered a judgment adopting the terms of the parties' marital settlement agreement and ordering Husband to pay to Wife monthly child support of $3,891 and monthly spousal support of $3,500, commencing January 1, 2003, based on Husband's 2003 projected income of $270,000. The judgment provided that those support amounts were to be adjusted annually, beginning January 1, 2004, based on Husband's actual income for the prior year. The judgment also provided that its support provisions were to be enforced by Ontario's Family Responsibility Office (FRO) and Husband was to pay support amounts owing to FRO, which would then pay those amounts to the person to whom they were owed.
On June 19, 2003, the Ontario court issued an order awarding Wife spousal support of $82,012 and child support of $7,000 for the period April 1, 2001, through August 1, 2002. On November 11, Wife entered into a settlement agreement with Christa Keyser resolving Wife's fraudulent conveyance action against Keyser and Husband regarding the transfer of Husband's Toronto residence to Keyser, which she (Keyser) subsequently sold. Pursuant to the settlement agreement, Keyser paid Wife about $130,000.
As of March 12, 2004, FRO calculated the total amount of support unpaid by Husband was $88,392.95. On April 26, the San Diego County Department of Child Support Services (County) filed a notice of registration of Ontario's 2003 support orders.
On December 28, 2009, County filed a motion to augment the appellate record with documents that were part of the trial court's file, but were omitted from the clerk's transcript. Husband did not oppose that motion. We now grant that motion and consider those documents, together with the remainder of the appellate record, in deciding this appeal.
In September 2006, Husband filed a motion to vacate the registration of the Ontario support orders and to dismiss County's related contempt action against him. Husband argued the support orders lacked certainty because the support amounts had not been adjusted annually. On May 1, 2007, the trial court issued a written order denying Husband's request to vacate registration of the Ontario 2003 support orders, but finding there was no enforceable support order. The court stated:
"1. [Husband's] motion to vacate the registration is denied as it is untimely filed.
"2. The court finds that there is not an enforceable support order. There is only a formula to determine support. The only order that is certain is for the year 2003. There is nothing determined thereafter. The Canadian Court has jurisdiction over this issue as the California Court only has jurisdiction to enforce. The order registered by the [County] is too uncertain to enforce. Therefore, all enforcement is stayed until a determination of the support amount is made by the Canadian Court. [¶]... [¶]
"4. Before any further enforcement in this case can occur, including enforcement for any time when an order was in place, a motion must be filed with the court...."
Apparently later that month, Wife filed a motion in the Ontario court seeking its order declaring that: "[E]ffective January 1, 2004, the payment of support contained in paragraphs 2.1 and 3.1 of the Order... dated April 14, 2003[,] shall continue at the amounts provided in said paragraphs unless and until changed by Order of this Court." She further sought the court's order declaring that: "[T]he provisions of paragraphs 2.3 (last sentence) and paragraphs 2.4 and 3.2 of the Order... dated April 14, 2003[,] requiring a review of spousal and child support are not mandatory." A case conference was set for September 12, 2007, and the hearing on her motion was set for September 19.
On August 1, Husband was personally served with notice of the motion. On or about September 7, Husband retained Canadian counsel to represent him in opposing the motion. On September 12, Husband's counsel appeared at the case conference and requested a continuance (or an "adjournment") of the conference. The Ontario court denied his request for a continuance.
On September 19, Husband's counsel, Wife's counsel, and Wife appeared at the scheduled hearing on the motion. Husband's counsel requested a continuance of the hearing. Over Wife's objection, the Ontario court granted a one-week continuance (i.e., until September 26), on the condition that Husband "shall forthwith pay to [FRO] the sum of $50,000 on account of arrears."
On September 26, Wife appeared at the continued hearing with her counsel. However, neither Husband nor his counsel appeared at the continued hearing. After finding Husband had been served with the motion materials on August 1, the Ontario court issued an order declaring: "[E]ffective January 1, 2004, the payment of support contained in paragraphs 2.1 and 3.1 of the Order... dated April 14, 2003[,] shall continue at the amounts provided in said paragraphs unless and until changed by Order of this Court." The court also ordered Husband to pay Wife's costs. The court stated that its order was to be enforced by FRO. The court further ordered: "[U]ntil such time as [Husband] pays the $50,000.00 on account of arrears to [FRO]... and further pays to [Wife] the full amount of the costs today ordered by me plus any accumulated interest thereon, [Husband] shall not be entitled to apply to this Court to seek any relief in respect of this action, whatsoever."
On April 18, 2008, County filed a motion in the trial court for an order determining the amount of support and arrears owed by Husband based on the Ontario court's September 26, 2007, order. Husband filed papers opposing the motion. On September 12, 2008, County filed a notice of registration of the Ontario court's 2007 support order. Husband filed a request for a hearing regarding registration of that support order. He requested that the court vacate registration of the 2007 support order, arguing the amount of arrears stated in the notice of registration was incorrect and the 2007 order of the Ontario court did not "fall within the parameters of Family Code section 4900." Husband argued: "[T]he [Ontario] court barred my participation in the proceedings unless I could pay the sum of $50,000. Because I could not, the court would not consider any documents from me and barred me from seeking a downward modification of the support, although the court NEVER looked at any of my evidence. The court... took an even more drastic step by ordering that I could not even in the future petition for relief unless and until I have paid the sum of $50,000. This is completely unjust and contrary to the laws the United States was founded on-equal protection under the law." Husband, Wife, and County submitted documents and other papers in support of their respective positions.
On February 24, 2009, after hearing the parties' arguments and considering their submissions, the trial court denied Husband's request to vacate the registration of the 2007 Ontario court order and allowed County to enforce against Husband that order's support arrears amounts. The court stated:
"The way that I interpreted the Canadian orders... was to continue the orders at the original amount, that being, the $3,500 spousal support and [$]3,891 in child support, and continuing those amounts forward.
"I do believe that the due process requirements were met. And, therefore, I will deny [Husband's] motion to vacate the registration and allow the registration and enforcement to go forward."
Husband timely filed a notice of appeal.
DISCUSSION
I
Certainty of the Ontario Court Order
Husband contends the 2007 Ontario court order cannot be enforced against him because it is based on the 2003 Ontario judgment, which remains too uncertain to enforce.
A
The April 14, 2003, judgment of the Ontario court provided:
"2. THIS COURT ORDERS AND ADJUDGES UNDER THE DIVORCE ACT that [Husband] shall pay spousal support in accordance with paragraph 2 of the Minutes of Settlement between the parties made April [14], 2003[,] and which provides more particularly as follows:
" [']2. Spousal Support
" [']2.1 [Husband] shall pay to [Wife] as and for her support the monthly sum of $3,500.00 commencing on the first day of January, 2003[, ] and payable on the first day of each and every month thereafter. The payment shall be a periodic payment of support and treated accordingly for tax purposes.
" [']2.2 The quantum of spousal support shall be subject to variation by reason of a change in circumstances whether such change is or is not foreseen....
" [']2.3 Spousal support has been determined on the basis of [Husband's] projected income for the year 2003, being $270,000.00. If on the disclosure of [Husband's] 2003 income (to be corroborated by May 30, 2004[,] by the production of tax returns Canadian and U.S. for the year 2003 and notices of assessment when received) his income is more than $270,000, then [Husband shall pay [Wife] additional spousal support for the year 2003 to be determined as follows. [Husband's] income, pro-rated for the period May 1 to December 31, less the amount paid in support shall be deducted from 53.5 [percent] of his net disposable income, leaving the balance of the adjustment to spousal support which shall be paid by March 30, 2004. Spousal support shall be re-determined as of January 1, 2004[, ] on the basis of his 2003 actual income on the basis that he pays 53.5 [percent] of net disposable income for spousal and child support.
" [']2.4 The quantum of spousal support shall be adjusted yearly based on changes in the cost of living as measured by the Consumer Price Index for Canada.[']
"3. THIS COURT ORDERS AND ADJUDGES UNDER THE DIVORCE ACT that [Husband] shall pay child support in accordance with paragraph 3 of the Minutes of Settlement between the parties made April [14], 2003[,] and which provides more particularly as follows:
" [']3. Child Support
" [']3.1 [Husband] shall pay as and for the support of the children, the monthly sum of $3,891.00, commencing on the first day of January, 2003[, ] and payable on the first day of each and every month thereafter subject to the adjustments described hereafter, based upon an annual income of $270,000.00.
" [']3.2 On the first day of January in each and every year commencing January, 2004[, ] the quantum of child support shall be adjusted based on the actual income of [Husband] for the preceding calendar year. The quantum of child support shall be adjusted in accordance with the provisions of Child Support Guidelines of the Divorce Act. [¶]... [¶]
" [']3.7 For so long as child support is payable, each of the parties shall furnish the other with a copy of his or her Income Tax Return as soon as it is submitted and shall furnish the other with a copy of his or her Notice of Assessment as soon as it is received."
Pursuant to Wife's motion, the Ontario court issued an order on September 26, 2007, declaring: "[E]ffective January 1, 2004, the payment of support contained in paragraphs 2.1 and 3.1 of the Order... dated April 14, 2003[,] shall continue at the amounts provided in said paragraphs unless and until changed by Order of this Court." However, that order did not grant, or otherwise address, Wife's additional request for a declaration that: "[T]he provisions of paragraph[] 2.3 (last sentence) and paragraphs 2.4 and 3.2 of the Order... dated April 14, 2003[,] requiring a review of spousal and child support are not mandatory."
B
Husband asserts that because the annual adjustments in spousal and child support, as required by the 2003 judgment, were never made by the Ontario court, the amounts of spousal and child support he was required to pay after 2003 are too uncertain to be enforced. Accordingly, he argues the 2007 Ontario court order cannot be enforced against him.
Husband apparently assumes it is within the authority of California courts to review a decision of a foreign court interpreting or clarifying a prior support judgment or order registered in California under UIFSA. We conclude it is not our function to disagree or otherwise interfere with a foreign court's interpretation or clarification of its prior support judgment or order. By its September 26, 2007, order, the Ontario court considered and decided Wife's motion for clarification of its 2003 judgment regarding Husband's support obligations. In that 2007 order, the Ontario court expressly declared that Husband's support obligations were to continue after 2003 in the same amounts as provided in its 2003 judgment (i.e., monthly spousal support of $3,500 and monthly child support of $3,891) until changed by a future order of the court.
Under the UIFSA, it generally is not within the authority of the trial court, or this court, to review or modify the substantive provisions of a support order of a foreign court registered in California, except to the extent necessary to determine the amount of support awarded for purposes of enforcement in California. (§§ 4952, subd. (c) ["Except as otherwise provided in this article, a tribunal of this state shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction."]; 4953, subd. (a) ["The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order."]; 4960, subd. (a) ["After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order" generally only if the child, the individual obligee, and the obligor do not reside in the issuing state]; cf. Harding v. Harding (2002) 99 Cal.App.4th 626, 636 [trial court lacked subject matter jurisdiction under § 4960 to modify Texas child support order because substantial evidence showed father (the obligor) resided in Texas and not California].) Husband does not cite any cases or other authority persuading us to conclude otherwise. In the circumstances of this case, we cannot vacate registration of, or preclude enforcement of, the 2003 judgment and 2007 order of the Ontario court even were we to interpret the provisions of the 2003 judgment as requiring annual adjustments of the amounts of spousal and child support and therefore implicitly providing support amounts only for 2003.
In any event, based on our review of the Ontario court's 2007 order, we conclude the Ontario court implicitly determined its 2003 judgment did, in fact, set forth the amounts of Husband's support obligations after 2003 despite the absence of annual adjustments. By ordering the amounts of Husband's monthly spousal and child support obligations to continue at the same amounts as set forth in the 2003 judgment, the Ontario court implicitly concluded the amounts of Husband's support obligations after 2003 were not too uncertain to enforce. Alternatively stated, the Ontario court implicitly concluded the absence of annual adjustments after 2003 to the amounts of Husband's support obligations did not make either its 2003 judgment or its 2007 order too uncertain to enforce. Under the UIFSA, we cannot reject that conclusion by the Ontario court.
Although Husband also argues he is unable to obtain relief from the 2007 order of the Ontario court because of its requirement that he first pay $50,000 toward the amount of his support arrears, that argument is one to be raised in the Ontario courts and not in California courts under UIFSA.
II
Ontario's Qualification as a "State" under UIFSA
Husband contends the trial court erred by denying his motion to vacate registration of the Ontario court order because the province of Ontario, Canada, is not a "state" within the meaning of the UIFSA. In support of this contention, he argues that Ontario's procedures for issuance and enforcement of support orders are not substantially similar to those of California.
A
"The UIFSA authorizes a procedure by which a foreign judgment for child or spousal support may be enforced in California. The UIFSA was enacted in 1997, as required by the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (Pub.L. No. 104-193 (Aug. 22, 1996) 110 Stat. 2105). The UIFSA governs... the enforcement of child and spousal support orders from another state." (Willmer v. Willmer (2006) 144 Cal.App.4th 951, 956 (Willmer).) Section 4901, subdivision (s), defines a "state" for purposes of the UIFSA as: "a state of the United States... or any territory or insular possession subject to the jurisdiction of the United States. The term 'state' also includes both of the following: [¶] (1) An Indian tribe. [¶] (2) A foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act." (Italics added.)
County represents to this court, and Husband does not refute, that the 1996 version of the UIFSA continues to be in effect in California despite the Legislature's enactment of the 2001 version of the UIFSA because neither of the two alternative conditions to the effectiveness of the 2001 version has occurred. In enacting the 2001 version of the UIFSA, the Legislature provided: "This act shall become operative upon at least one of the following two events taking place, whichever occurs first, but in no event prior to July 1, 2004: [¶] (a) The amendment by Congress of subdivision (f) of 42 U.S.C. Sec. 666 to statutorily require or authorize, in connection with the approval of state plans for purposes of federal funding, the adoption of the Uniform Interstate Family Support Act as promulgated by the National Conference of Commissioners on Uniform State Laws in 2001. [¶] (b) The approval, either generally or with specific application to California, by the federal office of Child Support Enforcement or by the Secretary of Health and Human Services, of a waiver, exemption, finding, or other indicia of regulatory approval of the Uniform Interstate Family Support Act, as promulgated by the National Conference of Commissioners on Uniform State Laws in 2001, in connection with the approval of state plans for purposes of federal funding." (Historical and Statutory Notes, 29F West's Ann. Fam. Code (2004 ed.) foll. § 4901, p. 428.) County represents that "[n]either event has occurred" and therefore the 1996 version of the UIFSA continues in effect. Because we are unaware of any evidence showing otherwise, we presume County's representation is correct and therefore consider only the 1996 version of the UIFSA in deciding this appeal. Furthermore, Willmer implicitly concluded the 1996 version of the UIFSA continued to be in effect when it quoted that version's definition of a "state" and affirmed a November 2004 order confirming registration of a German judgment for child and spousal support. (Willmer, supra, 144 Cal.App.4th at pp. 954-956, 964.)
"Under PRWORA, the United States Secretary of State is authorized to make federal declarations of reciprocity for child support establishment and enforcement." (Willmer, supra, 144 Cal.App.4th at p. 956.) Title 42 United States Code section 659a(a)(1) provides: "The Secretary of State, with the concurrence of the Secretary of Health and Human Services, is authorized to declare any foreign country (or a political subdivision thereof) to be a foreign reciprocating country if the foreign country has established... procedures for the establishment and enforcement of duties of support owed to obligees who are residents of the United States, and such procedures are substantially in conformity with the standards prescribed under subsection (b)."
B
Husband asserts that because Ontario's procedures for issuing and enforcing support orders are not substantially similar to those of California, Ontario is not a "state" under UIFSA and therefore the 2007 Ontario order cannot be registered and enforced in California under the UIFSA. However, Husband relies on the facts and procedures in his particular case as proof of his assertion that Ontario's procedures are not substantially similar to California's procedures. As proof of dissimilarity of procedures, he cites the Ontario court's denial of his request for a continuance of the September 12, 2007, case conference and its subsequent conditioning of its grant of a continuance of the September 19 hearing on his payment of $50,000 toward his support arrears amount. In so doing, Husband assumes the qualification of a foreign country as a "state" under UIFSA can vary depending on the particular circumstances of a foreign support proceeding (e.g., whether in a particular case a party was provided with due process of law). However, the definition of a "state" under UIFSA does not, and should not, vary depending on the facts or procedures of a particular foreign support proceeding. Rather, as Willmer implicitly concluded, a foreign country is determined to be a "state" under UIFSA based on a generalized review of that country's procedures (e.g., by a federal declaration of reciprocity by the United States Secretary of State or, if none, by a declaration of reciprocity by the California Attorney General) and not based on a case-by-case review of the particular facts or procedural events of a specific support case in a foreign country. (Willmer, supra, 144 Cal.App.4th at pp. 956-957.) Were Husband's assertion correct, a foreign country's qualification as a "state" under UIFSA would be subject to challenge whenever registration of a particular support order by that country's court is contested, resulting in prolonged proceedings and potentially inconsistent determinations whether a particular foreign country is a "state" under UIFSA. That result cannot be what the Legislature and the drafters of the 1996 version of UIFSA contemplated. Rather, we conclude it is implicit under UIFSA that the determination of a "state" under section 4901, subdivision (s), is to be based on a generalized evaluation of a foreign country's support procedures, typically by a federal or California governmental office or agency. (See, e.g., Caswell, International Child Support--1999 (1998) 32 Fam. L.Q. 525, 540-541.)
As County notes, the United States government has determined, effective August 7, 2002, that Ontario, Canada, is a reciprocal country, or subdivision thereof, for purposes of enforcing family support obligations. (U.S. Dept. of State, Public Notice 6434, Notice of Declaration of Foreign Countries as Reciprocating Countries for the Enforcement of Family Support (Maintenance) Obligations, 73 Fed.Reg. 72555 (Nov. 28, 2008).) We conclude that federal determination is, in effect, a generalized determination that Ontario, Canada, has "enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures" under UIFSA. (§ 4901, subd. (s)(2).) We conclude Ontario, Canada, is a "state" under UIFSA. The particular facts and proceedings in the Ontario court cited by Husband in this matter do not persuade us to conclude otherwise.
III
Due Process of Law
Husband contends the trial court erred by denying his motion to vacate registration of the Ontario court order because the order was obtained without affording him due process of law.
A
On August 1, 2007, Husband was personally served with notice of Wife's motion in the Ontario court for an order declaring that Husband's support obligations be continued, effective January 1, 2004, in the amounts set forth in its 2003 judgment until changed by a future order of the court. On or about September 7, Husband retained Canadian counsel to represent him in opposing the motion. On September 12, Husband's counsel appeared at the case conference and requested a continuance (or an "adjournment") of the conference. The Ontario court denied his request for a continuance and stated: "Given that it is doubtful that much will be accomplished at any Family Law Case Conference, the motion scheduled for September 19, 2007[,] may proceed on the next return date." The court nevertheless noted that because Husband had retained new counsel, the hearing on the motion "will in all likelihood have to be adjourned [i.e., continued]."
On September 19, Wife, Wife's counsel, and Husband's counsel appeared at the scheduled hearing on the motion. Husband's counsel requested a continuance of the hearing. Over Wife's objection, the Ontario court granted a one-week continuance (i.e., until September 26), on the condition that Husband "shall forthwith pay to [FRO] the sum of $50,000 on account of arrears."
On September 26, Wife appeared at the continued hearing with her counsel. However, neither Husband nor his counsel appeared at the continued hearing. After finding Husband had been served with the motion materials on August 1, the Ontario court issued an order declaring that: "[E]ffective January 1, 2004, the payment of support contained in paragraphs 2.1 and 3.1 of the Order... dated April 14, 2003[,] shall continue at the amounts provided in said paragraphs unless and until changed by Order of this Court." The court also ordered Husband to pay Wife's costs. The court stated that its order was to be enforced by FRO. The court further ordered that: "[U]ntil such time as [Husband] pays the $50,000.00 on account of arrears to [FRO]... and further pays to [Wife] the full amount of the costs today ordered by me plus any accumulated interest thereon, [Husband] shall not be entitled to apply to this Court to seek any relief in respect of this action, whatsoever."
The Ontario court's minutes set forth its reasoning for that payment requirement: "[Husband's] behavior in ignoring and actively taking steps to avoid his obligations under the Order... dated April 14, 2003[,] is inexcusable.... [¶]... [¶]... [I]n light of [Husband's] inexcusable behavior and his [willful] refusal to pay, I have ordered that until he pays the $50,000 on account of arrears to the [FRO]... and pays to [Wife] the costs ordered today plus any accumulated interest, he shall not be entitled to apply to this Court for any form of relief in this matter, whatsoever."
On September 12, 2008, County filed a notice of registration of the Ontario court's 2007 support order. Husband filed a request for a hearing regarding, and requesting vacation of, the court's registration of the 2007 support order. On February 24, 2009, after hearing the parties' arguments and considering their submissions, the trial court denied Husband's request to vacate the registration of the 2007 Ontario court order and allowed County to enforce against Husband that order's support arrears amounts. The trial court rejected Husband's argument that its registration of the 2007 order should be vacated because the Ontario court did not afford him due process of law.
B
Husband asserts he may raise as a defense to enforcement of the 2007 Ontario order the Ontario court's purported denial of his right to due process of law. In support of his assertion, he cites a repealed statute, former Code of Civil Procedure section 1699, subdivision (a), and a case construing that statute. Former Code of Civil Procedure section 1699 was repealed in 1993 and its successor statute, former Family Code section 4853, was subsequently repealed in 1997. (Stats. 1993, ch. 876, § 15; Stats. 1997, ch. 194, §§ 1, 2.) Because that statute has been repealed, it does not provide support for his argument and we need not discuss it.
The case cited by Husband is Morris v. Cohen (1983) 149 Cal.App.3d 507.
Nevertheless, we note that section 4956, subdivision (a), sets forth certain defenses to the validity or enforcement of a registered support order, including: "(5) There is a defense under the law of this state to the remedy sought." Husband bears the burden to prove that defense applies. (§ 4956, subd. (a).) Assuming arguendo that the deprivation of due process of law (substantially as afforded a party under the United States or California Constitutions) may be a defense under section 4956 or otherwise to the validity or enforcement of a registered foreign support order, we conclude Husband has not carried his burden to prove that he was denied due process of law by the Ontario court. In general, the right to due process of law under the United States and California Constitutions provides that a party must be given reasonable notice of a hearing and an opportunity to be heard. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7; Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279 ["[t]he essence of procedural due process is notice and an opportunity to respond"]; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 832; In re Marriage of Goddard (2004) 33 Cal.4th 49, 54; Memphis Light, Gas and Water Division v. Craft (1978) 436 U.S. 1, 14 ["[t]he purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending 'hearing' "].) Due process is flexible and its procedural protections depend on the particular case. (Morrissey v. Brewer (1972) 408 U.S. 471, 481.)
Husband argues he was not afforded an opportunity to be heard in the Ontario court before it issued its 2007 support order because it denied his request for a continuance of the September 12, 2007, case conference, conditioned his request for a continuance of the September 19 hearing on his payment of $50,000 toward his arrears amount, and continued that hearing for only one week. He argues he "was unable to present evidence and did not have the opportunity to be heard at the September 19, 2007[,] hearing because he had only just been able to retain an attorney and was not given sufficient time to read over all the documents [Wife] had submitted, much less gather evidence, draft documents or even have the remote opportunity to respond to the allegations made by [Wife] in a foreign country."
Husband apparently concedes he received reasonable notice of the hearing.
Husband does not persuade us the Ontario court denied him due process of law by not continuing the September 12, 2007, case conference and continuing the September 19 hearing on Wife's motion for only one week on the condition that he pay $50,000 toward his arrears amount. It is undisputed Husband was served with Wife's motion papers on August 1 and therefore had about 50 days to prepare for the scheduled September 19 hearing. As County notes, had Wife filed a motion in California, under section 1005, subdivision (b), she generally would have been required to give Husband only 16 court days' notice. (Code Civ. Proc., § 1005, subd. (b) ["Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing," which period is extended by 20 court days if the party is served by mail outside the United States].) Therefore, Husband does not persuade us the 50-day period was insufficient advance notice for him to have a meaningful opportunity to prepare and present a defense. Although Husband complains it was difficult for him to find a Canadian attorney to represent him for an affordable retainer, he does not submit any evidence persuading us that he exercised reasonable diligence in attempting to retain an attorney and was unable to retain an attorney before September 7 despite reasonable diligence. Furthermore, he does not explain why he was unable to represent himself at that hearing or, at least, prepare papers opposing Wife's motion during that 50-day period. As Wife's notice of motion states, Husband had until four days before the September 19 hearing to file his opposition papers and serve them on her. Also, Husband does not present any evidence or argument persuading us that his attorney did not have sufficient time to prepare papers and argument opposing Wife's motion during the 12-day period between his retention and the original September 19 scheduled date for the hearing on the motion.
Husband's reply declaration filed on January 29, 2009, merely stated: "I was served in August with a copy of [Wife's] motion set for hearing on September 12, 2007. I had no money to hire a lawyer in Canada, much less to find a lawyer in Canada which is why I had no representation until September 7. I contacted several lawyers ('solicitors') in Canada, and all of them were very expensive. Just to 'retain' [Husband's counsel] I had to pay a total of $10,000. [Citation.]"
Regarding the Ontario court's denial of a continuance of the September 12 case conference, Husband does not show that court abused its discretion, or violated his right to due process, by not continuing that conference. Regarding the Ontario court's one-week continuance of the September 19 hearing conditioned on Husband's payment of $50,000 toward his arrears amount, Husband does not show the Ontario court was required to continue the September 19 hearing. We presume Ontario, like California, generally requires an affirmative showing of "good cause" for a continuance. (Cal. Rules of Court, rule 3.1332(c).) Absent such a showing, a trial court does not abuse its discretion by denying a request for a continuance. (Cf. In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) Husband does not show that he, or his newly retained attorney, had insufficient time to prepare papers and argument opposing Wife's motion by September 19. We cannot conclude, as a matter of law, that 12 days was insufficient time to prepare for the September 19 hearing and did not allow Husband a meaningful opportunity to be heard at that hearing. Furthermore, Husband does not show the Ontario court denied him a meaningful opportunity to be heard when it continued the September 19 hearing for one week on the condition that he pay $50,000 toward his arrears amount. Husband's counsel requested the continuance of the September 19 hearing and, had the court's terms or conditions for a continuance been unacceptable to Husband (i.e., a continuance for only one week or the required payment of $50,000), his counsel presumably would not have accepted the continuance and, instead, proceeded with the hearing on its originally scheduled date of September 19. In any event, Husband does not show the Ontario court would have precluded him from presenting any opposition at the continued hearing on September 26 or, if it had, that he made any request for the court to reconsider its ruling or any attempt to obtain relief from that ruling by writ petition or appeal in Canadian courts. We conclude the trial court correctly concluded Husband did not prove he was denied due process of law by the Ontario court, which would preclude its registration and enforcement of the 2007 support order.
The primary case cited by Husband in support of his argument was depublished and therefore cannot be cited as authority for his position. (In re Michelle C. (2005) 131 Cal.App.4th 534, review den. and opn. ordered nonpub. 9/28/05.)
IV
Extrinsic Mistake
Husband contends the trial court erred by denying his motion to vacate registration of the Ontario court order because that order was obtained through extrinsic mistake.
Although Husband summarily argues the 2007 support order was also obtained through extrinsic fraud, he presents no substantive analysis to support that argument. Accordingly, we deem that argument to be waived and need not address its merits. In any event, we note Husband has not shown on appeal that he was denied a fair adversary hearing because he was deliberately kept in ignorance of the Ontario hearing or was otherwise fraudulently prevented from opposing Wife's motion. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.)
A
Section 4956, subdivision (a), provides that a party seeking to vacate registration of a support order has the burden of proving the defense that the order was obtained by fraud or there is a defense under California law to the remedy sought. (§ 4956, subd. (a)(2), (5).) Section 4956 does not expressly set forth the defense of extrinsic mistake. Accordingly, the equitable defense of extrinsic mistake does not appear to be a defense to registration of a valid foreign support order. (9IB West's U. Laws Ann. (2005) U. Interstate Fam. Support Act (1996), com. to § 606, p. 434.)
In any event, assuming arguendo extrinsic mistake may be a defense to registration and enforcement of a foreign support order under UIFSA, we nevertheless conclude Husband has not carried his burden on appeal to show the trial court erred by finding that defense does not apply in the circumstances of this case. "Extrinsic mistake occurs 'when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.' [Citation.]" (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.) In Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, at page 503, we stated:
"Extrinsic mistake exists when the ground for relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense. [Citation.] If such neglect results in an unjust judgment-one entered without a fair adversary hearing-the defendant may have a basis for equitable relief. [Citation.]
"Relief on the ground of extrinsic... mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action. [Citation.] ' "To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[], the moving party must demonstrate diligence in seeking to set aside the default once... discovered." [Citation.]' [Citation.]"
Relief for extrinsic mistake is denied when the complaining party contributed to the mistake giving rise to the judgment. (Kulchar v. Kulchar, supra, 1 Cal.3d at p. 473.) "If the complainant was guilty of negligence in permitting... the mistake to occur equity will deny relief." (Wilson v. Wilson (1942) 55 Cal.App.2d 421, 427.)
Husband does not show any of the elements for relief for extrinsic mistake exist in this case. Although he complains he was precluded from appearing at the September 26, 2007, continued hearing on Wife's motion because he did not have $50,000 to pay toward his arrears amount, that condition to the continuance of the September 19 hearing was intrinsic, not extrinsic, to the proceeding. That condition was imposed by the Ontario court at the September 19 hearing in response to the request by Husband's attorney for a continuance of the hearing on Wife's motion. That condition was imposed as a direct result of his participation in the proceeding and not because of his absence based on any excusable mistake. Husband had a meaningful opportunity to be heard at the September 19 and 26 hearings. His counsel consented on his behalf to the conditions for continuance when he accepted the continuance in lieu of proceeding with the originally scheduled hearing on September 19. Therefore, there was no extrinsic mistake based on the Ontario court's condition to continuance of the September 19 hearing. Furthermore, Husband cites no evidence showing he did not, or could not, attend the September 26 continued hearing because of any extrinsic mistake. Husband's failure to appear at the September 26 hearing or, alternatively, to seek relief in the Ontario courts from the $50,000 payment condition for continuance or the 2007 support order shows Husband's own negligence or inaction resulted in, or at least contributed to, that support order. The trial court properly concluded the defense of extrinsic mistake was not available to require vacation of registration of the support order or preclude its enforcement pursuant to the UIFSA.
Likewise, Husband's complaint that he was unable to retain an attorney until September 7, 2007, does not support a defense of extrinsic mistake. The trial court could reasonably find Husband did not act diligently in retaining a Canadian attorney or by not, alternatively, preparing opposition papers and/or representing himself at the September 19 hearing. Furthermore, Husband does not show his attorney did not have sufficient time to prepare for that hearing or had good cause for its continuance. We conclude Husband has not carried his burden on appeal to show the trial court erred by denying his motion to vacate registration of the 2007 support order based on extrinsic mistake.
V
Section 4956 Partial Payments
Husband contends the trial court erred by denying his motion to vacate registration of the 2007 support order because he showed he made partial payments toward the amounts required to be paid by that order.
Section 4956, subdivision (a)(6), provides a defense to registration or enforcement of a foreign support order if a party has made full or partial payment. Husband asserts the trial court should have granted his motion to vacate registration of the 2007 support order because he presented evidence showing that Wife received part of the support amount from the proceeds of the sale of his residence and that he paid support amounts from May 2001 through August 2002 for which FRO did not provide him any credit.
We conclude there is substantial evidence to support a finding by the trial court that Husband did not carry his section 4956 burden to prove he was entitled to the credit he asserts. The 2007 support order provided that, effective January 1, 2004, the spousal and child support amounts set forth in the 2003 judgment (i.e., monthly spousal support of $3,500 and monthly child support of $3,891) would continue until changed by a future court order. In denying Husband's motion to vacate registration of the 2007 support order, the trial court allowed that order to be enforced in accordance with the amounts asserted by Wife. Wife submitted papers explaining FRO began its accounting for Husband's arrears as of January 1, 2003, and therefore his payments from April 2001 through August (or December) 2002 should not have been, and were not, included in FRO's accounting of Husband's support payments and arrears amounts. The trial court did not err by accepting that explanation of FRO's arrears accounting for Husband's support obligations.
The record does not show the trial court ignored the evidence he submitted regarding his past support payments. Rather, we presume the court reviewed and considered that evidence and found Wife's evidence more persuasive.
Similarly, Wife explained the $130,000 in settlement proceeds she received from Keyser for Wife's fraudulent conveyance action against Husband and Keyser for the transfer of his interest in his Toronto residence were not, contrary to Husband's assertion, to be wholly credited against his support arrears amount. According to Husband, only $58,709.29 of the $130,000 in settlement proceeds was credited against his support obligations. However, the trial court reasonably accepted Wife's explanation that the settlement proceeds were to be applied first toward Husband's obligation to pay Wife her proportionate share of their marital assets in their divorce proceeding and any remainder of the proceeds (i.e., $58,709.29) were to be applied to Husband's spousal and child support obligations. In denying Husband's motion, the trial court stated: "[Wife] gave a very good and detailed explanation of how that [i.e., the $130,000 settlement proceeds] was accounted for. [¶]... [¶] And that seemed to be reasonable, to me, and made sense." Accordingly, the court allowed enforcement of the arrears amount of the 2007 support order as alleged. Our review of the settlement agreement between Wife and Keyser, dated November 11, 2003, shows it does not contain any language restricting Wife's use or application of the settlement proceeds in any manner (e.g., toward payment of spousal or child support). We conclude Husband has not carried his appellate burden to show the trial court erred by not crediting the entire amount of the settlement proceeds toward his spousal and child support obligations.
Husband's citation to the record regarding the terms of the November 11, 2003, settlement agreement between Wife and Keyser does not support his assertion that agreement provided its proceeds were to be "credited toward 'ongoing support obligations only.' " The complete sentence in the settlement agreement from which Husband selects that phrase reads as follows: "The Defendant, Christa Keyser, shall provide the Plaintiff [Wife] with a written undertaking from the co-defendant, Tad Brown [Husband], not to move to vary or set aside the Judgment of Mr. Justice Langdon, dated June 19, 2003, save and except an application to vary [his] ongoing support obligations from and after the date of that Judgment." In his reply brief, Husband cites, for the first time, to a letter dated December 17, 2003, from Keyser to "Pamela W" regarding "case number 0652371," which letter stated in part: "I, Christa Keyser, authorized the release of the [settlement] funds as payment for William Brown's arrears to case #0652371." We presume the trial court considered that postsettlement letter and was unpersuaded that the entire $130,000 in proceeds were to be credited toward Husband's support obligations.
DISPOSITION
The order is affirmed. County and Wife are entitled to costs on appeal.
WE CONCUR: HALLER, ACTING P. J., O'ROURKE, J.