Opinion
B190161
12-11-2006
In re Marriage of YANG CHING FAN and JIAN CHUN ZHU. YANG CHING FAN, Petitioner and Respondent, v. JIAN CHUN ZHU, Respondent and Appellant.
Jian Chun Zhu in propria persona for Appellant. No appearance by Respondent. (Cal. Rules of Court, rule 17(a)(2).)
Wife appeals from a default judgment entered in a dissolution action. She claims the court erred in awarding husband the family home she purchased prior to marriage. She also claims the courts custody and visitation orders concerning the parties minor children were erroneous. She asserts these errors would not have occurred but for her excusable neglect in failing to file timely responsive pleadings. We affirm.
FACTS AND PROCEEDINGS BELOW
On the courts own motion we take judicial notice of the superior court file in the dissolution action. (Evid. Code, § 452, subd. (d).)
This is a marital dissolution action between appellant Jian Chun Zhu (wife) and respondent Yang Ching Fan (husband).
The record does not make clear when they began their relationship. However, in April 1998 wife purchased a house in the City of San Gabriel and took title to the house as a single woman. Wife secured a mortgage for the purchase price of the house in her name alone.
There were two children born of their relationship, a daughter born in September 1999 and a son born in April 2001. Husband is listed as the childrens father on the childrens birth certificates. The children were given the husbands family name Fan.
Husband and wife married in November 2002.
Some incident involving wife and daughter occurred in April 2004. The matter was referred to the Department of Children and Family Services (DCFS). DCFS filed a Welfare and Institutions Code section 300 dependency petition, the substance of which is not revealed in the record.
The petition apparently did not concern husband. Husband submitted the petition on the social workers report in the dependency proceeding. Through his appointed counsel husband filed a formal waiver of his right to a contested evidentiary hearing on the petition.
On February 3, 2005 husband petitioned for dissolution of marriage. On February 10, 2005 husbands appointed counsel in the dependency matter personally hand-delivered the petition and summons to wife.
Wife filed no response. In April 2005 husband requested the court to enter her default.
Family Code section 2020 specifies "[a] responsive pleading, if any, shall be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons."
Meanwhile in the dependency matter, in June 2005 the juvenile court terminated jurisdiction and issued family law orders. These orders were filed in the parties dissolution action. As relevant to this appeal, the juvenile court issued exit orders (1) granting husband sole legal and sole physical custody of the parties minor children; (2) granting wife visits with the children, provided the visits were monitored by a professional monitor; (3) prohibiting wife from living at the family residence; and (4) restraining wife from coming within 100 yards of husband, their children or the family residence for three years, until the restraining order expires by its own terms in February 2008. The stated reason for the juvenile courts order specifying only supervised visits with the children was that wife "has mental health issues she has not dealt with."
Wife did not seek appellate review of the juvenile court orders or findings.
On November 21, 2005 husband filed an amended petition for dissolution of marriage to include the juvenile courts exit orders. He served wife with the amended petition by mail in care of a person having her same last name of Zhu where wife presumably was then living.
Again wife did not respond within the requisite 30 days and husband requested the court to enter her default. In December 2005 the court set a date of March 9, 2006 for a prove-up hearing on the default.
Family Code section 2335.5 concerns requests for entry of default. This section states: "In a proceeding for dissolution of marriage or legal separation of the parties, where the judgment is to be entered by default, the petitioner shall provide the court clerk with a stamped envelope bearing sufficient postage addressed to the spouse who has defaulted, with the address of the court clerk as the return address, and the court clerk shall mail a copy of the request to enter default to that spouse in the envelope provided. A judgment of dissolution or legal separation, including relief requested in the petition, shall not be denied solely on the basis that the request to enter default was returned unopened to the court. The court clerk shall maintain any such document returned by the post office as part of the court file in the case."
Family Code section 2336 discusses the proof required for entry of a default judgment in a dissolution action: "No judgment of dissolution or of legal separation of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court shall, in addition to the statement or finding of the referee, require proof of the grounds alleged, and the proof, if not taken before the court, shall be by affidavit. . . ." (Fam. Code, § 2336, subd. (a).) Where there are minor children the offer of proof must include an estimate of the monthly gross income of each party or explain why the party lacks such knowledge. (Ibid.) Where there is a community estate, the offer of proof must also include an estimate of the value of the assets and debts the declarant or affiant proposes to distribute to each party, unless the declarant or affiant has filed, or concurrently files, a complete and accurate property declaration with the court. (Ibid.)
Wife filed a response on February 17, 2006 in propria persona. She filed this response over a year after husband filed his original petition for dissolution and nearly three months after husband filed his amended petition for dissolution. In her response, wife requested, among other things, custody of the children and for the family home to be confirmed to her as her separate property.
On March 9, 2006 the court entered judgment in the dissolution action. Regarding child custody matters, the family law court adopted the juvenile court orders and attached a copy of those orders to the family law judgment. Regarding the family residence, the family law court awarded husband the house in San Gabriel and ordered him to be responsible for the mortgage.
The clerk of the court mailed notice of entry of the judgment to wife on the same day. It was presumably received by wife as the superior court file does not contain the mailed notice, returned as undeliverable.
Family Code section 2338.5, subdivision (c).
Sometime later in March 2006 wife moved to vacate the judgment. She acknowledged receiving husbands original petition for dissolution of marriage in February 2005, but claimed he mailed the amended petition to her in care of her relative, an address which was "not her residence." In her motion wife claimed she was entitled to the house because she had acquired it before marriage.
Wife later explained she could not attend the March 9, 2006 prove-up hearing on the default because she had to appear in another court on a charge of contempt of court for having allegedly violated the restraining order the day before on March 8, 2006.
The court construed wifes motion as a request for modification. The court ultimately denied her motion to vacate/request for modification.
In the interim, wife filed a notice of appeal to challenge the default judgment awarding the house and custody of their children to husband.
DISCUSSION
I. WIFE HAS FAILED TO DEMONSTRATE GROUNDS FOR VACATING THE DEFAULT JUDGMENT.
Wife admits she received husbands initial February 2005 petition for dissolution of marriage. However, she failed to "appear" by filing a response to the petition, or by "appearing" through any other legally recognized method. For this reason, she was not technically entitled to notice of further proceedings.
See Code of Civil Procedure section 418.10; California Rules of Court, rule 5.120(a) [a respondent or defendant in a family law action appears by filing a response, filing a motion to strike, filing a motion to transfer the proceedings, or by filing a written notice of appearance].
Code of Civil Procedure section 1014 ["where a defendant has not appeared, service of notice or papers need not be made upon the defendant."]; California Rules of Court, rule 5.120(c) ["Where a respondent or defendant has not appeared, notice of subsequent proceedings need not be given to the respondent or defendant except as provided in these rules."].
There is an exception, however, for amendments to pleadings or for amended pleadings. In this instance, the amended pleading must be served on the "party whose default has been duly entered or who has not appeared in the action or proceeding." In this case husband filed an amended petition and served the amended petition on wife in November 2005. For whatever reason, wife waited three months to file a response. By this time her default had long since been entered. Entry of default was proper because she failed to file a response within the requisite 30 days.
Code of Civil Procedure section 1010 [no papers, "other than amendments to the pleadings, or an amended pleading, need be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding."].
Code of Civil Procedure section 471.5, subdivision (a). See also, California Rules of Court, rule 5.122(a) ["Upon proper application of the petitioner, the clerk must enter the respondents default if the respondent or defendant fails within the time permitted to: . . ." make an appearance.].
Wife asserts there are grounds to vacate the resulting default judgment. Wife claims husband failed to file his amended petition within 30 days as he was required to do under Code of Civil Procedure 471.5, and for this reason the default judgment was invalid. Wife misreads this provision. It instead states it is the defendant who has 30 days to file an answer to an amendment or to an amended complaint or risk having a default entered against him or her. Code of Civil Procedure section 471.5, subdivision (a) states, "If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendment, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. . . ." Contrary to wifes argument, the same 30-day time restriction does not apply to amendments to pleadings or to amended pleadings.
Italics added.
See Code of Civil Procedure section 473, subdivision (a) [permitting amendments in the discretion of the court, in the furtherance of justice, and on any terms that may be just].
Wife next claims her default could not be entered because the petition failed to state her correct name. In support of her argument wife cites Code of Civil Procedure section 474 which states a default may not be entered against a defendant designated only fictitiously as a "doe" defendant, unless the person was in fact served in a manner which provided actual notice he or she was being sued.
Code of Civil Procedure section 474 provides in pertinent part: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: `To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it). . . . "
However, Code of Civil Procedure section 474 specifies its requirements for entry of defaults and default judgments apply only to fictitiously sued defendants. This is obviously not the situation in the case at bar. Wifes complaint is not that she was fictitiously sued as a "Doe" defendant, her argument is instead the petition allegedly misnamed her. She complains the petition refers to her by the family name of Fan, the husbands and childrens last name. Wife claims she instead uses what appears to be her maiden name of Zhu.
In any event, wife admits she was personally served with the summons and petition. There is also nothing in the record to suggest wife did not also receive mailed notice of the amended petition. There could be no mistake the petitions meant her. She was the only person who could have been named as the respondent in the petition as the dissolution only concerned husband and wife. If in fact Zhu is wifes legal last name, the judgment can be amended to make this correction.
See Code of Civil Procedure section 473, subdivision (a)(1) [court may, in the furtherance of justice, permit an amendment to correct a partys name].
Wife cites Code of Civil Procedure section 116.560 for the proposition the petition was invalid because it did not use her legal name. This section pertains to businesses doing business under a fictitious name and does not pertain to dissolution actions. Nevertheless, even this section specifies a plaintiff may request the court "at any time, whether before or after judgment to include both the correct legal name and the name or names actually used by the defendant" on a showing of good cause. (Code Civ. Proc., § 116.560, subd. (b).)
Because she was served with and had actual notice of the proceedings, the possible variance in listing her last name does not provide the necessary "mistake, inadvertence, surprise or excusable neglect" to vacate the default judgment entered against her. Accordingly, we find no basis for disturbing the judgment.
Code of Civil Procedure section 473, subdivision (b); Code of Civil Procedure section 473.5, subdivisions (a) and (c) [lack of actual notice is a ground for vacating a default judgment].
II. WIFE HAS FAILED TO SHOW THE FAMILY LAW COURT ERRED IN IMPOSING THE JUVENILE COURTS ORDERS REGARDING CUSTODY.
Wife argues husband had no right to custody of the children because the children were born before their marriage. She also claims husband had no right to custody because husband signed and filed a waiver of rights form in the juvenile dependency action.
The waiver of rights form the husband signed only waived his rights to a contested evidentiary hearing regarding the truth of the allegations of the dependency petition. This narrow waiver did not purport to also waive husbands right to seek custody of the children.
The juvenile court had exclusive jurisdiction to make custody orders concerning the parties dependent children while the children were under the jurisdiction of the juvenile court. When a juvenile court places dependant children with a parent it is authorized to order "that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation to the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relations proceeding between the parents."
Welfare and Institutions Code section 304; In re Jennifer R. (1993) 14 Cal.App.4th 704, 711.
Welfare and Institutions Code section 361.2, subdivision (b)(1); see also, California Rules of Court, rule 5.475(a) ["A juvenile court or probate court may transmit a custody or visitation order to a family court for inclusion in a pending family law proceeding or to open a new family law case file, upon termination of a juvenile court proceeding. . . . "].
This is what occurred in the case at bar. Once the juvenile court made its exit orders regarding custody and visitation on termination of jurisdiction, those orders were transferred to the family law court and they became a part of the dissolution action. The juvenile courts final judgment and orders regarding custody and visitation were incorporated by reference into the dissolution judgment and included as attachments to the judgment. Those orders will remain in effect "until modified or terminated by a subsequent order of the superior court."
Welfare and Institutions Code section 362.4; see also, In re Roger S. (1992) 4 Cal.App.4th 25, 30 [Welfare and Institutions Code section 362.4 authorizes the juvenile court when terminating jurisdiction to make custody and visitation orders which will be transferred to a family court file and remain in effect until changed by the superior court].
Because so little time had elapsed between the date the juvenile court made its orders, and entry of judgment in the dissolution action, it is not surprising the family law court enforced the final orders and judgment of the juvenile court regarding custody. This is especially true because the record contains no evidence wife had shown changed circumstances, or some evidence suggesting she had by then addressed the concerns which prompted the juvenile court to make the custody and visitation orders it did.
Welfare and Institutions Code section 302, subdivision (d) describes the circumstances under which a juvenile courts custody orders may be modified. This subdivision provides: "Any custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4 regarding a child who has been previously adjudged to be a dependent child of the juvenile court shall be a final judgment and shall remain in effect after that jurisdiction is terminated. The order shall not be modified in a proceeding or action described in Section 3021 of the Family Code unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child." Italics added.
See, e.g., In re Michael W. (1997) 54 Cal.App.4th 190, 196 [a family law court would defer to orders recently made during dependency jurisdiction and "hesitate to second-guess the juvenile court, at least absent something more than the ordinary showing of changed circumstances."].
Because the record reveals no grounds for modifying or terminating the juvenile courts orders for custody and visitation, wife has failed to demonstrate the family law court erred in continuing those custody orders in effect. Should circumstances significantly change in the future wife is free to seek a modification of the custody and visitation orders in the family law court.
DISPOSITION
The judgment is affirmed. Appellant to bear her own costs on appeal.
We Concur:
WOODS, J.
ZELON, J.