Opinion
D070469
03-03-2017
In re the Marriage of YVONNE and PHILEMON PURGANAN. YVONNE FERNANDES, Respondent, v. PHILEMON PURGANAN, Appellant.
Yvonne Fernandes, in pro per., for Respondent. Victor Augustus Mordey for Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D490364) APPEAL from an order of the Superior Court of San Diego County, Paula S. Rosenstein, Judge. Reversed and remanded with directions. Yvonne Fernandes, in pro per., for Respondent. Victor Augustus Mordey for Appellant.
Appellant Philemon Purganan appeals an order denying his request to vacate an October 2005 family court order that he pay respondent Yvonne Fernandes $1,000 a month in spousal support. Purganan contends the court erred by denying his request because the October 2005 order modified a 2001 Hawaii court's spousal support order in violation of the Uniform Interstate Family Support Act (the UIFSA; Fam. Code, § 5700.101 et seq.), the family court lacked subject matter jurisdiction to make the order, and as a result the October 2005 order is void ab initio. We agree that under the UIFSA, the Hawaii court had exclusive continuing jurisdiction over the matter of spousal support and that the UIFSA precluded the San Diego Superior Court's modification of the Hawaii order. Because the court erred by denying Purganan's motion to vacate the October 2005 order, we reverse with directions set forth below.
Statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2001, a Hawaii court granted Fernandes and Purganan a decree of divorce of their approximately 24-year marriage. The Hawaii court ordered in part that "[n]either party shall be required to pay alimony to the other party," but provided the parties had "agree[d] to a mutuable [sic] agreeable arrangement at a future time providing for spousal support payments if either's annual income falls to a substantially lower level than the other's." It further awards Fernandes 50 percent of Purganan's Coast Guard retirement pay accrued through the date of their divorce.
In May 2005, Fernandes registered the Hawaii court's August 2001 decree in the family law branch of the San Diego Superior Court. At the same time, she filed an order to show cause (OSC) for a modification of the Hawaii court's spousal support order. In a supporting declaration, Fernandes pointed to the parties' prior agreement as to spousal support and stated she had received support payments of $500 for approximately two years, which ended when Purganan "decided [she] no longer deserved them." She asserted she was unemployed and not able to support herself, and was making substantially lower wages than Purganan.
On October 4, 2005, the family court, Judge Randa Trapp, conducted a hearing on the matter. Only Fernandes appeared. Under oath, Fernandes explained that she and Purganan had agreed to handle their divorce without attorneys, and further agreed that if either of their incomes became substantially lower than the others, that "we would help each other out." She stated she was presently making $1,600 monthly on disability and that Purganan had previously given her $500 in monthly spousal support but terminated it when she obtained employment. According to Fernandes, Purganan was on active military duty making about $8,000 per month and was refusing to pay her any spousal support. During the hearing, the court expressed concern that the Hawaii court had not reserved jurisdiction over the issue of alimony or support. Fernandes responded by pointing to the portion of the Hawaii decree stating the parties' mutual agreement concerning spousal support. Finding the parties had a long-term marriage, that Fernandes's annual income was substantially lower than Purganan's, Fernandes had need, and Purganan had the ability to pay, Judge Trapp ordered Purganan to pay Fernandes $1,000 per month in spousal support beginning October 1, 2005. It entered its written order on October 6, 2005.
In December 2015, Purganan sought an order vacating the October 6, 2005 order on grounds Judge Trapp lacked subject matter jurisdiction to enter it under the UIFSA. He argued the modification order violated the UIFSA, was "illegal," and should be vacated. Fernandes responded that through her petition, she had asked the San Diego Family Court to "take away jurisdiction over the issue of spousal support from the state of Hawaii," and the court exercised its discretion to grant her request to make a spousal support order. She argued Hawaii no longer had continuing, exclusive jurisdiction over spousal support, requiring that Purganan's request be denied.
The family court, Judge Paula S. Rosenstein, heard Purganan's request in March 2016. The court observed that the question was strictly legal: whether the California superior court had the authority to enter the October 6, 2005 order. The court stated it had looked to sections 4914 and 4925 in effect in 2005, and ruled: "In these sections a party seeking to modify a support order of another state shall file a petition. And so you need to go through a particular process. Ms. Fernandes filed the notice of registration of the Hawaii support order, which was served on Mr. Purganan by the court. He filed no opposition. The registration was therefore confirmed by operation of law. Ms. Fernandes then properly filed and personally served her summons and uniform support petition and her OSC to modify spousal support on the respondent at his address in San Diego. Husband cited no authority or provided any facts to support his contention that Hawaii still had continuing exclusive jurisdiction, nor would there be any basis for the continuing exclusive jurisdiction, since both parties lived in California in 2005. Husband did not file a motion to quash for lack of jurisdiction, he did not respond to the petition, he did not appear, spousal support modification was properly ordered. The motion to vacate the prior order is denied."
Purganan objected to the court's statement of decision on grounds he had no obligation to respond to Fernandes's 2005 pleadings, which under the UIFSA were "intrinsically devoid of [the] ability" to modify the spousal support order. He also objected on grounds subject matter jurisdiction could not be created by consent, waiver or estoppel.
On April 12, 2016, the court entered its findings and order after hearing. The court overruled Purganan's objections, denied Purganan's request to vacate the October 2005 order, and ordered that its tentative statement of decision as reflected in the transcript of the hearing be the final statement of decision.
Purganan filed the present appeal.
We asked Purganan to brief whether the order denying his motion to vacate the order was appealable. Orders denying nonstatutory motions to vacate are generally not appealable. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.) But an order denying a motion to vacate a void judgment is itself void, and is thus appealable because it gives effect to the void judgment. (Id. at pp. 690-691; Carr v. Kamins (2007) 151 Cal.App.4th 929, 933-934 [order denying a nonstatutory motion to vacate a void judgment is appealable]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1087, fn. 3 [order denying a statutory motion to vacate a void judgment is appealable even if the motion was brought on other grounds].)
DISCUSSION
I. Standard of Review
Whether the family court had subject matter jurisdiction to make its October 2005 order that Purganan pay spousal support is a question of law we review de novo. (See San Diegans for Open Government v. City of San Diego (2015) 242 Cal.App.4th 416, 427; Lundahl v. Telford (2004) 116 Cal.App.4th 305, 312.) To the extent the family court interpreted law in reaching its decision to deny Purganan's motion to vacate the October 2005 order, we likewise review that interpretation de novo. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189; In re Marriage of Gerkin (2008) 161 Cal.App.4th 604, 610.)
II. The UIFSA
The UIFSA, now codified in California at section 5700.101 et seq., governs the modification of spousal support awards. (See § 5700.211, formerly § 4914.) It has been adopted in all 50 states. (In re Marriage of Haugh (2014) 225 Cal.App.4th 963, 968.) The UIFSA ensures that in every case only one state exercises jurisdiction over support at any given time. (Ibid.) "The 'cornerstone' of the UIFSA is the concept of 'continuing, exclusive jurisdiction,' . . . ." (Id. at p. 969; see also In re Marriage of Gerkin, supra, 161 Cal.App.4th at p. 612.)
Senate Bill No. 646 (2015-2016 Reg. Sess.), which adopted the 2008 amendments to the UIFSA, took effect on January 1, 2016. (Stats. 2015, ch. 493, § 5, eff. Jan. 1, 2016; see County of Los Angeles Child Support Services Department v. Superior Court (2015) 243 Cal.App.4th 230, 237, fn. 1.) The UIFSA was previously section 4900 et seq.
When the family court issued the October 6, 2005 order, former section 4909 stated: "A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state." (Former § 4909, subd. (f).) The effect of these provisions is that the California superior court, as a "tribunal of this state" (former § 4902 ["The superior court is the tribunal of this state"], now § 5700.103, subd. (a)), was precluded by statute from modifying the Hawaii spousal support order if Hawaii, under its law, has continuing, exclusive jurisdiction over the order. (In re Marriage of Rassier (2002) 96 Cal.App.4th 1431, 1434; see Lundahl v. Telford, supra, 116 Cal.App.4th at p. 317 [UIFSA "permits modification of a spousal support order only by the court issuing the order"].)
In 2005 California operated under the 1996 version of the UIFSA, not the 2001 version, which the Legislature only conditionally adopted. (See Knabe v. Brister (2007) 154 Cal.App.4th 1316, 1319, fn. 2; In re Marriage of Haugh, supra, 225 Cal.App.4th at p. 968, fn. 2.)
In 1997, Hawaii adopted the UIFSA, which is presently codified at Hawaii Revised Statutes (HRS) § 576B-101 et seq. (See Underwood v. Colley (Hawaii Ct.App. 2006) 137 P.3d 365, 368, 369.) At the time the Hawaii court entered its 2001 divorce decree and in 2005, HRS section 576B-205, entitled continuing, exclusive jurisdiction, provided in part: "A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation." (Former HRS § 576B-205, subd. (f), italics added.) That provision presently appears without change at HRS § 576B-211, subdivision (a), entitled "Continuing, exclusive jurisdiction to modify spousal support order." Under Hawaii's provisions, "the tribunal issuing a spousal support order retains continuing exclusive jurisdiction over the order throughout the existence of the support obligation and . . . a spousal support order may not be modified by a tribunal of another state . . . . " (Underwood, at p. 368, emphasis added.)
III. The Court Erred by Denying Purganan's Motion to Vacate the October 2005 Order,
Which Is Void Due to Lack of Subject Matter Jurisdiction
Both Hawaii's UIFSA and California's counterpart in 2005 precluded Judge Trapp from modifying the Hawaii spousal support order because under HRS section 576-205, subdivision (f), the Hawaii court that issued the order had continuing exclusive jurisdiction over that order. "The necessary effect of a grant of exclusive subject matter jurisdiction in one judicial body is to divest all other bodies of such jurisdiction." (In re Alexander P. (2016) 4 Cal.App.5th 475, 488, citing El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 952-953, 961 & Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 143.) An order entered by a court without subject matter jurisdiction is void and vulnerable to direct or collateral attack at any time. (San Diegans for Open Government v. City of San Diego, supra, 242 Cal.App.4th at p. 427; see also Wilson, at p. 143.) And, an alleged lack of subject matter jurisdiction must be addressed whenever it comes to a court's attention. (See Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9; Saffer v. J.P. Morgan Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1246.)
In reaching its conclusion, the family court suggested that Purganan had waived the issue by failing to cite authority or facts to support Hawaii jurisdiction, and reasoned that Hawaii had no basis to exercise continuing exclusive jurisdiction because "both parties lived in California in 2005." But as Purganan correctly pointed out, a claim that a court lacks subject matter jurisdiction is not subject to waiver. (Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th at p. 307, fn. 9; In re Marriage of Cecilia and David W. (2015) 241 Cal.App.4th 1277, 1284, fn. 11.) And the fact neither party resided in Hawaii "is immaterial to whether a California court may modify a [Hawaii] spousal support order." (In re Marriage of Rassier, supra, 96 Cal.App.4th at p. 1435.) "California law prohibits a California court from modifying a spousal support order issued by a court in another state when, as in this case, the court in that other state has continuing exclusive jurisdiction over the order. Thus, whether the parties reside in the issuing state at the time modification is sought is of no consequence." (Ibid.)
The UIFSA "treats child support orders and spousal support orders differently with respect to continuing exclusive jurisdiction. Unlike a spousal support order, with respect to which the residence of the parties is irrelevant as to whether the issuing court has continuing exclusive jurisdiction, a tribunal of the state issuing a child support order under UIFSA has continuing exclusive jurisdiction over the child support order only for as long as at least one of the parties—the obligor, the obligee, or the child—resides in the issuing state." (In re Marriage of Rassier, supra, 96 Cal.App.4th at p. 1437, citing former § 4909, subd. (a).) The California court's power to modify a child support order is irrelevant as to whether the court in the instant case had the power to modify a spousal support order. (Ibid.)
Nor is it of any consequence that the Hawaii court did not expressly reserve jurisdiction over spousal support in its 2001 decree. Under Hawaii law, a spousal support order is always subject to further order of the family court on a material change in the relevant circumstances of either party even though the order does not explicitly so state and even when the order explicitly states otherwise. (Thielen v. Thielen (Hawaii Ct.App. 1998) 964 P.2d 645, 652, citing Vorfeld v. Vorfeld (Hawaii Ct.App. 1991) 804 P.2d 891, 897; Beach v. Beach (Hawaii Ct.App. 1985) 708 P.2d 143, 144.)
Because the court in October 2005 lacked subject matter jurisdiction to enter the spousal support order, the order was void, and the family court erred by denying Purganan's motion to vacate that order.
DISPOSITION
The order is reversed. The matter is remanded and the family court directed to enter a new order granting Purganan's request and vacating the October 6, 2005 spousal support order. Purganan shall recover his costs.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.