Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. DN113478, Jeannie Lowe, Commissioner.
McINTYRE, J.
Robert W. Hess appeals an order denying his request to set aside a previous order increasing his child support obligations from $1,500 to $2,193 a month. He contends that he was never properly served with the underlying motion to increase the amount of the support and that, as a result, the court was required to grant his motion for relief. We conclude that the court did not abuse its discretion in denying the motion based on Robert's undue (and unexplained) delay in seeking relief and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Elizabeth and Robert were married and had two children; the marriage was terminated in July 2000 after Elizabeth petitioned for its dissolution. Pursuant to a stipulated judgment entered in March 2002, Robert was ordered to pay Elizabeth spousal support of $500 a month for 41 months and child support of $1,500 a month, plus certain add-ons. Robert apparently did not comply with his support obligations and in early 2003, the family court issued an order providing that Robert's $13,000 interest in Elizabeth's retirement savings account could be used to offset the support arrearages, which were in excess of $20,000.
At about the same time, Elizabeth filed for public assistance and assigned her child support rights to the County of San Diego's Department of Child Support Services (the Department). (Welf. & Inst. Code, § 11477; see also Fam. Code, § 17400.) The Department obtained Robert's earning statements from the Employment Development Department and the Franchise Tax Board and in June 2004, it made a motion in the family court to increase Robert's monthly child support obligations to $2,193. The Department served the motion, which was set for hearing on July 14, 2004, on the parties by mail on June 4, 2004.
Neither Elizabeth nor Robert appeared at the July 14, 2004 hearing, which the court continued to October 20, 2004, apparently with a direction that the Department personally serve the papers on them. According to the Department's evidence, it attempted to personally serve the motion, a notice to compel attendance and production of documents and the court's July 14 order on Robert at his address of record on six different occasions, but was unable to perfect such service. Robert did not appear at the October 20 hearing and the court continued the matter again, to January 19, 2005.
As shown by the Department's evidence, it confirmed multiple times with Robert's employer that it had a correct address for Robert and tried, again unsuccessfully, to personally serve its papers, as well as a copy of the court's October 20, 2004 order, on Robert at his home address. The court continued the hearing from January 19 to April 20 "for [personal] service." In February 2005, the Department served Robert with a copy of the court's January 15, 2005 order by mail and attempted to personally serve him with all relevant documents on four more occasions. It again attempted personal service on Robert on four more occasions in late March.
At the April 20 hearing, the court found that Robert had actual notice of the proceedings and entered a default order granting the Department's request for increased support against him. The ordered increase was to take effect on July 1, 2005 and the order itself was made "without prejudice until 60 days." The court ordered the Department to serve Robert with a copy of the order by mail, which the Department did on April 20, 2005.
In September 2006 (which was more than 16 months after the Department served the April 20, 2005 order), Robert obtained an order to show cause why the April 20, 2005 order should not be set aside. In his supporting papers, Robert argued that the order was obtained by extrinsic fraud. Specifically, he contended that he was never "properly served" with the original motion and never received notice of the continued hearing dates for the increased support motion and that the Department had failed to comply with the court's orders that it personally serve him.
The Department opposed the motion on the grounds that Robert's request for relief was untimely and that despite his consistent evasion of service, he had actual notice of the proceedings and thus had failed to establish his claim of extrinsic fraud. The Department's evidence included a declaration that Robert had contacted it twice in connection with the underlying motion to increase support. In his reply, Robert contended (for the first time) that because the court had ordered the Department to personally serve him with the relevant documents, such service was mandated by Family Code section 215 and that the Department's failure to effect such service rendered the order subject to collateral attack.
At the hearing on the order to show cause, Robert admitted, in response to the court's inquiry, that the address the Department had for him was correct. The court found that although it had ordered the Department to serve Robert personally, Family Code section 215 did not require personal service, that he had had actual notice of the underlying proceedings and that he was properly served with the order taken against him by default. It denied Robert's request for relief; he appeals the resulting order.
DISCUSSION
Various statutes provide the basis for possible relief from a default judgment or order entered against a party to a divorce proceeding. (See Code Civ. Proc., § 473, subd. (b) [authorizing relief from a judgment or order taken against a party as a result of his or her "mistake, inadvertence, surprise, or excusable neglect" on an application for such relief made within a reasonable time not to exceed six months]; Fam. Code, § 2122 [authorizing a court to set aside certain child support orders that resulted from actual fraud, perjury, duress, mental incapacity or mistake of law or fact provided where application therefore is made within a specified time period]; Fam. Code, § 17432 [authorizing relief from a support judgment or order that is based on presumed income, where relief is sought within one year of first collection under such judgment or order].) Here, however, Robert did not seek relief pursuant to these statutes within the designated time periods for doing so.
Even where relief is no longer available under the foregoing statutory provisions, a court retains the inherent power to set aside a default judgment or order on equitable grounds where a party shows that the judgment or order resulted from extrinsic fraud or mistake. (In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937.) Extrinsic fraud, which is what Robert asserts here, occurs when a party is deprived of his opportunity to present his claim or defense to the court as a result of being kept in ignorance or in some other manner being fraudulently prevented by his opponent from fully participating in the proceeding. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26-27, quoting In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1069.) Fraud is not extrinsic, and not a valid ground for setting aside a judgment, however, when the party is given notice of the action and has an opportunity to present his case and protect himself from fraud by his adversary, but neglects to do so. (Home Ins. Co. v. Zurich Ins. Co., supra, 96 Cal.App.4th at p. 27.)
In light 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. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314-315.) A party seeking such relief has the burden to establish his entitlement to relief by a preponderance of the evidence. (See Luz v. Lopes (1960) 55 Cal.2d 54, 62.) Further, he must demonstrate that he acted diligently in seeking to set aside the judgment or order upon discovering it. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503, 506, 509; see also Fam. Code, § 3691, subd. (a).) We review the court's denial of a motion for equitable relief for an abuse of discretion, determining whether that decision exceeded the bounds of reason in light of the circumstances before the court. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981; In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
We find no such abuse. After confirming that the address where the Department had served Robert with the order increasing support was correct, the court noted that he had had an ample opportunity to challenge that order during the 60-day "without prejudice" period, but failed to do so. (Further, the periods for seeking statutory relief referred to above had also passed.) The clear implication of the court's findings was that Robert had not acted diligently to challenge the order or seek relief therefrom and the court therefore concluded that the motion for relief was unmeritorious. In light of the uncontroverted evidence that the Department mailed Robert a copy of the court's April 20, 2005 order and in the absence of any explanation (much less evidence) as to why Robert waited over 16 months to seek relief therefrom, the court acted well within its discretion in denying his motion for lack of diligence. (See Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 83.) Based on this conclusion, the parties' remaining arguments are moot.
DISPOSITION
The order is affirmed. The Department and Elizabeth are each awarded their respective costs on appeal.
WE CONCUR: McCONNELL, P.J., HUFFMAN, J.