Opinion
B225380
08-31-2011
FRANCIS RAY HARDY, Plaintiff and Appellant, v. TONJA THEREASE TAYLOR, Defendant and Respondent.
Francis Ray Hardy, in pro. per., for Plaintiff and Appellant. Tonja Therease Taylor, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BD405160)
APPEAL from an order of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Commissioner, and Donna Fields Goldstein, Judge. Appeal dismissed.
Francis Ray Hardy, in pro. per., for Plaintiff and Appellant.
Tonja Therease Taylor, in pro. per., for Defendant and Respondent.
Plaintiff, Francis Ray Hardy (Ray), filed this appeal more than two years late, challenging arrearages in child and spousal support assessed on February 28, 2007. Accordingly, we dismiss the appeal.
The trial court, Commissioner Mitchell L. Beckloff presiding, awarded Tonja Therease Taylor (Tonja) child and spousal support pendente lite by minute order dated July 21, 2004. Child support for the two children was set at $306 for July 2004 and $906 per month beginning August 1, 2004. Ray was ordered to pay spousal support in the form of the mortgage, interest, and taxes on the family residence ($1,388 per month). By prior order, the trial court had awarded the family residence to Tonja, and she had bought out Ray's half interest in the home for $102,000. The July 21, 2004 minute order directed Tonja "to prepare [an] order after hearing and serve [a] copy on the other party who has 10 days from receipt of service to file any objection."
An order awarding support pendente lite is ordinarily appealable. (See In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369.) But Tonja never followed through on preparing and submitting a subsequent order for signature. The minute order was the only order. That order was ineffective for purposes of enforcement and appeal because it contemplated the filing of a subsequent order that was not filed. (See Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304-306; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1169-1170; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 54, pp. 589-590.)
Ray paid child support for the month of August 2004 and thereafter paid about $150 over the next two years and four months. He paid spousal support until October 1, 2004, and then stopped.
In early 2007, Tonja sought arrearages based on the July 21, 2004 minute order. On February 27, 2007, the trial court, Judge Donna Fields Goldstein presiding, issued a minute order awarding Tonja $26,274 in child support arrearages and $40,252 in spousal support arrearages for a total of $66,526. The court also directed that the arrearages be paid out of Ray's funds from the residential buyout, which were deposited at University Credit Union. The trial court issued a minute order directing counsel for Tonja "to prepare the order after hearing." Counsel did so, and the following day, February 28, 2007, Judge Goldstein signed and filed "Findings and Order After Hearing."
On June 17, 2010, Ray filed a notice of appeal from the February 28, 2007 order.
The time within which to file an appeal is jurisdictional. (See Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) The maximum appeal period for the February 28, 2007 order was 180 days after its entry, there being no evidence that Ray was served with a notice of entry of the order. (See Cal. Rules of Court, rule 8.104(a).) That period expired on August 27, 2007.
In attacking the arrearages, Ray attempts to circumvent the traditional appeal rules by arguing that the February 28, 2007 order was void because it was based on the July 21, 2004 minute order, which he claims was void for lack of a subsequent order. Ray invokes the principle that a void order or judgment may be attacked at any time. (See Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862, 864-865.) He is fully aware that if the February 28, 2007 order was not void, then his time to appeal and challenge the arrearages expired long ago.
"'A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction "relates to the inherent authority of the court involved to deal with the case or matter before it." . . . Lack of jurisdiction in this "fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." . . .' . . . 'Familiar to all lawyers are such examples as these: A state court has no jurisdiction to determine title to land located outside its territorial borders, for the subject matter is entirely beyond its authority or power. . . . A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. . . . A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders . . . . A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision. . . .' . . . 'The granting of relief, which a court under no circumstances has any authority to grant, has been considered an aspect of fundamental jurisdiction for the purposes of declaring a judgment or order void.'" (Fireman's Fund Ins. Co. v. Workers' Comp. Appeals Bd. (2010) 181 Cal.App.4th 752, 766-767, citations omitted.)
As stated, the July 21, 2004 minute order was ineffective for purposes of enforcement and appeal. (See Herrscher v. Herrscher, supra, 41 Cal.2d at pp. 304-306; In re Marriage of Drake, supra, 53 Cal.App.4th at pp. 1169-1170.) But it was not void: The trial court did not lack authority to deal with the issue of child and spousal support; it had the power to hear and determine the matter. The lack of a subsequent signed order did not affect the trial court's subject matter jurisdiction. Thus, the July 21, 2004 order did not render the February 28, 2007 order void.
Nor was the February 28, 2007 order void for any other reason. Indeed, it was exactly what the trial court had requested by way of the February 27, 2007 minute order — a subsequent signed order. "[An] order determining arrearages and compelling payment of support is an appealable order." (In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1250, fn. 3.)
Accordingly, Ray should have challenged the child and spousal support arrearages by appealing the February 28, 2007 order in a timely manner. Because he waited almost three years to file the appeal, we have no choice but to dismiss it.
DISPOSITION
The appeal is dismissed. Respondent is entitled to costs on appeal.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
JOHNSON, J.