Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. DS16990, Timothy B. Taylor, Judge.
HUFFMAN, Acting P. J.
In this marital dissolution action, petitioner Tammy Guevara (Appellant) appeals the family court's orders of April 28 and 29, 2008 that set aside an order approving stipulations, dated July 25, 2000, regarding custody, support, attorney fees, and related issues between Appellant and her estranged husband, Jose Guevara (Respondent). This order setting aside the earlier stipulated order was issued at a case management conference (CMC), that was triggered by the filing of an amended petition on December 13, 2007. The original petition for dissolution had remained pending since 2000 without activity or resolution.
At the CMC on April 28, 2008, the family court stated that the basis for setting aside the July 25, 2000 stipulated orders in their entirety was that there had been many changes in circumstances due to the passage of time, and there was a possibility that the orders were no longer appropriate or that one of the parties was using them to take advantage of the other. The court instructed the parties to file new requests for orders to show cause if appropriate. The next day, the court sent out an order recusing itself from further proceedings, although it confirmed that its set-aside order should remain in effect.
Appellant challenges the family court's decisions, asserting that it was a denial of due process to make such a set-aside order at a CMC, because there was inadequate notice given that the court might change the existing orders, which represented the status quo known to the parties.
Because no brief has been filed by Respondent, we determine the appeal based on the record provided and Appellant's opening brief. (Cal. Rules of Court, rule 8.220(a)(2); all further rule references are to these rules except as noted.) In our preliminary review of the sparse record on appeal, we determined that the underlying set-aside order was appealable, as we confirm in the discussion portion of this opinion. (Rule 8.100(a)(2).) We have now reviewed the superior court file, which reveals that a judgment of dissolution was entered on the amended petition February 27, 2009, and that a mandatory settlement conference is set for July 30, 2009 on reserved issues that include spousal support and property division.
Since the July 25, 2000 orders that were the subject of the set-aside order also concerned spousal support and other reserved property issues, they have effectively been superseded while this appeal was pending. The proper resolution of this case is to reverse the family court's order that set aside the July 25, 2000 stipulated orders, because that decision was made without affording due process to the parties that any such order might result from the scheduled CMC, of which only a more limited form of notice had been given. We remand the matter to the family court with directions to enter a new order vacating the set-aside order, and to make other appropriate orders, based on its evaluation of the current circumstances of the parties and the procedural status of the case.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed her petition for dissolution in 2000, reporting that the parties had three minor children and had been married for 15 years. Both parties were represented by counsel and they went through family counseling services (FCS) mediation. They entered into the subject July 25, 2000 stipulation adopting the FCS report, with certain exceptions and modifications. They stipulated to the payment of child and spousal support retroactive to July 1, 2000, and Respondent agreed to provide financial information to Appellant's attorney within 10 days. The court approved the stipulation July 25, 2000.
Once Appellant filed her amended petition in 2007, using the 2000 date of separation, the matter came on for a CMC on April 28, 2008. Both parties were represented by counsel. The reporter's transcript reveals that Appellant had recently obtained domestic violence restraining orders against Respondent, which he had violated, causing him to be deported to Mexico. However, Appellant's counsel claimed to have been recently retained, only weeks ago, and to have only limited familiarity with the file. The date of separation was disputed, as Respondent was now claiming the parties had fully reconciled and lived together until December 2007.
The family court vigorously questioned counsel for both parties about the status of the case, and learned that the youngest child was about to turn 18. The court stated that a number of the relevant circumstances had changed and that Appellant's attorney appeared to be playing a game of "gotcha," by relying on stale orders in light of recent events that included deportation of Respondent. The court noted that the financial disclosure forms were incomplete and ordered that Appellant submit a proof of service of hers within 30 days. The court said it was exercising its discretion to set aside the 2000 order, "based on abundant changed circumstances since that order was entered." These included the passage of eight years, the children reaching the age of majority or close to it, a vast difference between the parties' income in 2000, and that shown in the more recent declarations, and the dispute between the parties about their alleged date of separation. The court instructed the parties to file new requests for orders to show cause, if they wished to proceed with the case, and set another case management conference in 120 days.
The next day, April 29, 2008, the family court judge issued an order recusing himself from further proceedings, but adhering to his previous decision to vacate the July 25, 2000 order. The court attached a partial reporter's transcript from an unrelated case in which Appellant's then-trial attorney had been criticized by the same judge for being less than forthright with the court and possibly backdating documents. The current case was transferred back to the presiding department for reassignment. (It should be noted that the superior court file shows that Appellant is now appearing in propria persona in the family court, and has a different attorney on appeal.)
Appellant's notice of appeal cites the recusal order, April 29, 2008, without mentioning the set-aside order. This court sent a letter inquiring about appealability of the subject order and received replies from counsel for each side. We issued an order stating that the set-aside order was arguably appealable pursuant to Family Code section 3554, and the appealability issue would be further considered on appeal. (All further statutory references are to the Family Code unless noted.)
DISCUSSION
I
INTRODUCTION
Preliminarily, we note that we will adhere to the views previously expressed, that we are obligated to liberally construe the notice of appeal as being from the April 28, 2008 set-aside order. (Rule 8.100(a)(2).) That order purported to vacate child support, spousal support, and attorney fees orders, and such orders awarding or denying support or fees are directly appealable as collateral orders directing the payment of money. (In re Marriage of Skelly (1976) 18 Cal.3d 365, 368-369; Lester v. Lennane (2000) 84 Cal.App.4th 536, 564.)
Also as a preliminary matter, we admit to being at some disadvantage in reviewing this record, due to its extremely limited snapshot of the proceedings. "[G]enerally applicable rules of appellate procedure" do not allow consideration of postjudgment evidence of changed circumstances, in support of the arguments on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 413.) However, in order to interpret the set-aside order, it is necessary and proper for this court, on our own motion, to consult the superior court file. (Rule 8.155(a).) The parties pursued the case at subsequent proceedings, including a CMC in which the matter was set for trial on February 27, 2009. Judgment of dissolution was granted, with jurisdiction reserved on spousal support and community property issues. The mandatory settlement conference set July 30, 2009 remains on calendar in the family court.
We may properly undertake to determine the scope and effect of the challenged set-aside order, because it implicates issues concerning the application of statutes, rules, and constitutional provisions to a set of undisputed facts; appellate courts address such issues as questions of law, and decide them on a de novo basis. (Lozada v. City & County of San Francisco (2006) 145 Cal.App.4th 1139, 1149; Bullock v. City & County of San Francisco (1990) 221 Cal.App.3d 1072, 1094-1095; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:4, p. 8-2.) The matter is not completely moot because the case is still progressing on the reserved support and property issues. Under the terms of the orders on review, read as a whole, the family court retained jurisdiction to address those issues.
II
DUE PROCESS PRINCIPLES
Our chief concern is whether the family court acted in contravention of due process principles, when, without prior notice, it set aside long-existing orders, in the procedural context of a CMC. The Superior Court of San Diego County, Local Rules, rule 5.2.7, outline the purpose of such conferences as discussing a timetable for the resolution of the case, with the court to make all appropriate orders in enforcement of that purpose. Notice must be given of the date of the conference, and the rule puts the parties on notice that the orders which may result at a CMC include, as relevant here, any of the following:
Through the type of notice given of the April 28, 2008 CMC, Appellant was not prepared for the possibility that the July 2000 orders might immediately be set aside without input from the parties, as part of the CMC. The transcript demonstrates that the family court believed it had the authority under general equitable principles to punish the parties for perceived dishonesty or concealment of facts by changing the status quo, because one party might be taking advantage of the other under it. However, these concerns of the court, even though valid, were still subject to due process requirements, that parties be put on notice of the specific relief that may be granted at the subject hearing. (See In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 878-879.) This court has outlined the reasons for such requirements:
Fuentes v. Shevin In re Joshua M.In some cases, a trial court may exercise its equitable discretion to set aside support orders. The code contains a comprehensive statutory scheme for seeking relief from a prejudgment support order, in section 3690 et seq. (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2009) ¶ 16:164.1, p. 16-43; see also § 2120 et seq. [the procedure for vacating support orders made in connection with judgments of dissolution].) This treatise cites to section 3692 and In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 626, to explain, "Notwithstanding any other provision of [Fam. Code, § 3690] et seq., or any other law, a support order may not be set aside simply because the court finds that it was 'inequitable when made' or that subsequent circumstances caused the support ordered to become excessive or inadequate." (Hogoboom and King, Cal. Practice Guide: Family Law, supra, ¶ 16:164.25, p. 16-46.)
At a hearing, a family court must assess the record before it "to grant or deny the requested relief on the basis of the moving and opposing papers, offers of proof and/or the oral evidence heard in connection therewith. It is an abuse of discretion to refuse to do either, instead simply 'dismissing' the motion/OSC for a perceived defect. [Citation.]" (Hogoboom and King, Cal. Practice Guide: Family Law, supra, ¶ 5:494, p. 5-196.) These authors also explain that there are limitations on local rules or practices that seek to expedite pretrial motions, because "the constitutional integrity of the judicial process" must not be jeopardized. (Id. at ¶ 5:493.3, pp. 5-194 to 5-195.) " 'In other words, court congestion and "the press of business" will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.' [Citations.]" (Id. at pp. 5-194 to 5-195.)
The family court could have addressed its concerns about the lack of prosecution of this case in several other ways. For example, in Superior Court of San Diego County, Local Rules, rule 5.12.9, standards are provided for determining whether discretionary dismissals should be granted to dispose of cases that have not been diligently pursued, i.e.: "Cases [in] which a judgment has not been filed or which have not been brought to trial within three years after the action was commenced may be set for a hearing to dismiss the case." The concern that the court showed about the effect of the passage of time upon these orders could more appropriately have been addressed by proceeding in that manner. (See In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1202; Simon v. Simon (1985) 165 Cal.App.3d 1044, 1049 [courts are permitted to examine how the circumstances of a party claiming prejudice have changed through the passage of time].)
None of the above circumstances that would have justified setting aside the existing stipulated orders has been shown to exist here. Instead, reversal of the subject order is appropriate because the judicial action taken under these circumstances amounted to a "miscarriage of justice." (See In re Jesusa V. (2004) 32 Cal.4th 588, 624-625.) The family court must, in appropriate further proceedings, assess the current circumstances of the parties with respect to the subject matters of the stipulated orders that were erroneously set aside.
DISPOSITION
The orders appealed from are reversed with directions to vacate the order setting aside the July 25, 2000 stipulation and order, and to reevaluate the reserved support and property issues, in light of the current circumstances of the parties and the procedural status of the case. The parties shall bear their own costs on appeal.
WE CONCUR: McDONALD, J., IRION, J.