Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Ct. No. 02D000143 Renee E. Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of Patrick A. McCall and Patrick A. McCall for Appellant.
Kinsella Weitzman Iser Kump & Aldisert and Patricia A. Millett for Respondent.
OPINION
O’LEARY, J.
Antoinette Cadieux, a resident of Canada, appeals from an order denying her motion to vacate the default judgment obtained in 2004 by her former husband, Guiseppe Cecere, awarding him child support. Her motion was brought on the grounds the judgment was void because California lacked personal jurisdiction over her. On appeal, Cadieux contends the trial court erred in denying her motion as untimely and she had insufficient minimum contacts with California to assert personal jurisdiction over her. We reject her contentions and affirm the order.
FACTS & PROCEDURE
On January 8, 2002, Cecere filed the instant action-a petition for dissolution of his marriage to Cadieux, seeking custody of their two minor children and child support. Cadieux was served with the petition at her residence in Montreal, Quebec, Canada. On April 16, 2004, the court entered a default judgment against Cadieux, granting Cecere custody of the two children, with visitation to Cadieux, and ordering her to pay Cecere $544 per month in child support.
Motion to Vacate Default Judgment
On April 13, 2010, Cadieux filed her motion to vacate the 2004 judgment on the grounds the court lacked personal jurisdiction over her. The motion was supported by Cadieux’s declaration. Cadieux stated she and Cecere were married in Canada, lived there for 14 years, and both children were born in Canada. In 1999, Cecere moved to California alone. The children remained residing with Cadieux in Canada until July 2001, when she permitted them to visit Cecere in California. He then refused to return the children to Canada and filed his petition for dissolution of marriage. Cadieux stated she had lacked the financial ability to do anything at the time; she tried to “secure the children through the respective country’s [sic] State Departments[;]” and she did not understand why the United States government had been unsuccessful in getting her children returned to her. Cadieux denied having any minimum contacts with California: she was not a California resident or domiciliary; never registered to vote in California or held a California driver’s license; did not conduct business in California; and “never caused the children to be relocated to California.” Cadieux conceded she was served with the petition in Canada, but she denied being served with the judgment.
Cecere’s opposition told a very different story, and he argued California had jurisdiction to enter and enforce a child support order against Cadieux under Family Code section 4905, subdivision (a), because the children resided in California as a result of Cadieux’s acts. In his declaration, Cecere stated that in 1999, his employer of 17 years transferred him from Canada to California. He and Cadieux “made the decision as a family to move” to California. In May 1999, he and Cadieux came to California with the children, then ages two and five, to “see where we were going to live.” In July 1999, Cecere and Cadieux, without the children, drove from Canada to California to bring the first load of their belongings. Cadieux returned to Canada after a few days to prepare for the balance of the family’s move, while Cecere remained in California to start work. In November 1999, Cadieux arrived in California with the children, in a semi-truck. Cadieux announced she wanted to become a truck driver and delay her move to California. She left the children with Cecere. Cecere enrolled the children in preschool and day care.
Cecere declared that in July 2000, Cadieux came to California to visit the children and took them back to Canada to visit relatives for the summer. When September rolled around, Cadieux refused to let the children return to Cecere in California. Throughout the fall and winter, Cecere tried unsuccessfully to contact Cadieux and the children in Canada, learning she was frequently leaving the children with friends and neighbors for up to 10 days at a time while she was “gone on the truck[.]” Cadieux brought the children back to California in the summer of 2001, leaving them with Cecere. Cadieux said she would come back for the children in September, but she did not and Cecere enrolled them in school in California in the fall of 2001.
Cecere said that in May 2002, Cadieux filed a complaint in Canada under the Hague Convention accusing him of kidnapping the children. The charges were investigated by the Orange County District Attorney and found to be without merit; the charges were dismissed. From 2000 through 2002, Cadieux made numerous “trucking runs” to California. Since the judgment was entered in 2004, Cecere had not received any child support payments directly from Cadieux, but had received payments from the Canadian government garnished from Cadieux’s tax refunds. Cadieux currently owed Cecere $72,460 in unpaid child support.
In Cadieux’s declaration filed in reply to Cecere’s opposition she denied ever agreeing the children could remain with Cecere in California. She stated Cecere alone made the decision to move to California and refused to return the children when she left them with him for a visit. She denied making any trucking runs to California.
Trial Court’s Ruling
Cadieux has not provided us with the order denying her motion to vacate the judgment. She has provided us with a reporter’s transcript from the hearing at which the trial court denied the motion. In ruling, the trial court commented the petition for dissolution was filed and served on Cadieux in 2002, but she did not file a motion to quash service of summons. Cadieux received notice of entry of her default and of the judgment in 2004 and the judgment was not void on its face. The trial court stated Cadieux’s motion to vacate the judgment filed six years after the judgment was entered was untimely.
DISCUSSION
Cadieux contends the trial court erred denying her motion to vacate the 2004 default judgment. She argues the court improperly found her motion to be untimely and Cecere failed to demonstrate the California court had personal jurisdiction over her when the judgment was entered. We reject her contentions.
The law has recently been well summarized in County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215 (Gorham). “[I]n any action ‘to enforce a duty of support or some other personal obligation growing out of the parent-child relationship, personal jurisdiction over [a] defendant [is] essential.’ [Citation.]” (Id. at p. 1227.) “Courts generally refer to jurisdiction over the parties and subject matter in any action as ‘fundamental jurisdiction, ’ and where this is lacking there is an entire absence of power to hear or determine the case. [Citation.] Under such circumstances, ‘an ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time.”’ [Citation.]” (Id. at p. 1225.)
Whether the judgment is void on its face, or can only be shown to be void by resort to extrinsic evidence, a judgment rendered without personal jurisdiction is still a void judgment. (Gorham, supra, 186 Cal.App.4th at p. 1226 [“once proof is made that the judgment is void based on extrinsic evidence, the judgment is said to be equally ineffective and unenforceable as if the judgment were void on its face because it violates constitutional due process”].) However, when the judgment is not void on its face, a collateral attack is precluded. In that case, “the judgment or order may be attacked either in an independent equitable action without time limits [citation], or by motion in the action in which the judgment or order was entered, usually made under a statute providing for such relief within certain time limits or a reasonable time.” (Id. at p. 1228, fn. omitted, italics added.) And “where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process [citation] or resulted from extrinsic fraud or mistake [citation].” (Ibid.)
Here, the support judgment against Cadieux was not void on its face-extrinsic evidence was required to demonstrate any claimed jurisdictional defect. Cadieux sought to vacate the judgment by way of motion filed in the action in which the judgment was entered, but she did not seek relief pursuant to any particular statutory scheme, and was thus invoking the trial court’s equitable authority to vacate the default judgment. “Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order, is available only in exceptional circumstances. [Citation.] [¶] We review the court’s denial of a motion for equitable relief to vacate a default judgment or order for an abuse of discretion, determining whether that decision exceeded the bounds of reason in light of the circumstances before the court. [Citation.]” (Gorham, supra, 186 Cal.App.4th at pp. 1229-1230.)
As observed in Gorham, supra, 186 Cal.App.4th at page 1228, footnote 2, the obvious statutes would be Code of Civil Procedure section 473, subdivision (b) [relief from judgment or order taken against party as a result of “mistake, inadvertence, surprise, or excusable neglect” upon application made within reasonable time not to exceed six months], and Family Code section 3691, subdivisions (a), (b), and (c) [relief from judgment or order taken against party as result of actual fraud, perjury, or lack of notice upon application made within a reasonable time not to exceed six months after discovery of facts].
In Gorham, the appellate court found the trial court abused its discretion by denying defendant’s motion to vacate the almost 10-year-old default judgment against him in a paternity and child support action due to lack of personal jurisdiction. The uncontested extrinsic evidence defendant submitted demonstrated the original proof of service filed under penalty of perjury in the action stating that defendant had been personally served with the summons and complaint was fraudulent because he was in fact “incarcerated at the time he was said to have been served....” Despite finding defendant had never been served, the trial court declined to vacate the default judgment because defendant’s motion was not timely. The appellate court found the case was one “of exceptional circumstances where equitable relief is warranted.” (Gorham, supra, 186 Cal.App.4th at p. 1230.) “Because [defendant] was never served with the complaint and summons, or other documents and notices as required... the trial court never obtained personal jurisdiction over him [citation], and the resulting default judgment was, and is, therefore void, not merely voidable, as violating fundamental due process.” (Ibid.)
By contrast, here there is not uncontroverted evidence demonstrating the court lacked personal jurisdiction over Cadieux. Although in its oral comments, the court made no mention of the substantive jurisdictional issue, an “order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Cadieux and Cecere told different versions of the events resulting in their children’s residence in California and we presume the trial court resolved those facts in favor of its order (i.e., in favor of personal jurisdiction).
Cadieux contends even accepting Cecere’s version of events, there is no basis for asserting personal jurisdiction over her. We disagree.
“Due process requires personal jurisdiction over a party on whom support obligations are to be imposed, and that jurisdiction must rest on sufficient contacts with the forum state as to make imposition of jurisdiction reasonable under normally applicable standards. [Citations.] Those standards require either ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, ’ [citation], or other contacts making the exercise of jurisdiction reasonable. [Citation.]” (McArthur v. Superior Court (1991) 235 Cal.App.3d 1287, 1293.)
In arguing California lacked personal jurisdiction over her when the 2004 judgment was entered, Cadieux relies primarily on Kulko v. California Superior Court (1978) 436 U.S. 84 (Kulko). In Kulko, the Supreme Court held California courts lacked in personam jurisdiction over a father residing in New York when his only contact with California was his acquiescence in his 12-year-old daughter’s wish to live in California with her mother. The California Supreme Court had ruled California had jurisdiction over father for purposes of deciding mother’s petition for increased child support under its general long-arm statute (Code Civ. Proc., § 410.10 [jurisdiction on any basis not inconsistent with the state or federal constitutions]), but the United States Supreme Court concluded father’s mere act of sending his daughter to live with her mother in California was insufficient to make California courts’ exercise of jurisdiction over him reasonable. (Kulko, supra, 436 U.S. at pp. 89, 91, 97.)
In addition to citing Kulko for the proposition that “sending” her children to live in California does not confer personal jurisdiction over her, Cadieux argues other specific facts-particularly her visiting the children in California and operating a trucking business in Canada that sometimes delivered freight to California-also do not suffice. But we do not look at any one fact in isolation. (See Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 584 [court must determine whether exercise of personal jurisdiction fair and reasonable under all the circumstances].)
Unlike Kulko, this case involved more than Cadieux’s mere passive acquiescence in her children’s residing with their father in California. Here, Cadieux participated in the family’s decision to move to California as a family when Cecere was transferred by his employer of 17 years. She came with Cecere and their very young children in the spring of 1999, to see their new home, and then drove to California with Cecere in the summer of 1999 moving the first load of their belongings. Cadieux returned to Canada to prepare for the balance of the family’s move. She came back in November 1999, bringing the children with her. Although at that point she informed Cecere she was going to try her hand at being a long-haul truck driver and delay her own move to California, she left the children to live with Cecere. In July 2000, Cadieux took the children back to Canada, telling Cecere they were going to visit relatives for the summer, but she did not return them to California for almost a year. She brought the children back to Cecere in California in the summer of 2001, saying she would come back for them in September. But she did not return and Cecere enrolled them in school in the fall of 2001. Although Cadieux later accused Cecere of kidnapping the children, the charges were investigated and found to be without merit.
Furthermore, “Kulko was decided upon general constitutional principles, without benefit of a specific jurisdictional statute. In denying personal jurisdiction over the nonresident father, the court emphasized that ‘California has not attempted to assert any particularized interest in trying such cases in its courts by, e.g., enacting a special jurisdictional statute.’ ([Kulko, supra, 436 U.S.] at p. 98... ].)” (County of Humboldt v. Harris (1988) 206 Cal.App.3d 857, 864.) But California now has specific legislation, Family Code section 4905, which explicitly provides as relevant here that, “In a proceeding to establish... a support order... a tribunal of this state may exercise personal jurisdiction over a nonresident individual... if... (5) The child resides in this state as a result of the acts or directives of the individual.” (Italics added; see County of Humboldt v. Harris, supra, 206 Cal.App.3d at p. 864 [father’s act of sexual intercourse in state resulting in conception of child satisfies due process requirements for personal jurisdiction in paternity/support action, particularly in light of statute [former Civ. Code, § 7007, now Fam. Code, § 4905, subd. (6)] which explicitly so provides].)
The evidence here supports the conclusion the children were residing in California as a result of Cadieux’s acts or directives. She participated in the initial decision to move the family to California, and brought the children leaving them to reside with their father. During the time she took the children back to Canada, she frequently left them in the care of others, brought them back to their father in California saying she would return for them, but did not. We agree with Cecere that this case is more like those in which the abandonment of the family in California was sufficient basis to confer personal jurisdiction. (E.g., McGlothen v. Superior Court (1981) 121 Cal.App.3d 106; In re Marriage of Lontos (1979) 89 Cal.App.3d 61.) In short, because there is evidence supporting the assertion of personal jurisdiction over Cadieux, we cannot say the trial court abused its discretion in denying Cadieux’s motion to vacate the default judgment. (Gorham, supra, 186 Cal.App.4th at pp. 1229-1230.)
DISPOSITION
The order is affirmed. Respondent is awarded his costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.