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In re Marriage of Prusinskas

California Court of Appeals, Fourth District, First Division
Feb 16, 2011
No. D057213 (Cal. Ct. App. Feb. 16, 2011)

Opinion


In re the Marriage of MARTHA PRUSINSKAS and WALTER MARTYN. MARTHA PRUSINSKAS, Respondent, v. WALTER MARTYN, Appellant SAN DIEGO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent. D057213 California Court of Appeal, Fourth District, First Division February 16, 2011

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No. DN62991, Randall W. Magnuson, Commissioner.

McDONALD, J.

Walter Martyn (Father) appeals an order denying his motion for reconsideration of or relief from a prior order setting the amount of child support arrears he owes Martha Prusinskas (Mother) and the County of San Diego Department of Child Support Services (County). On appeal, Father contends the trial court erred by denying his motion on the ground that it was untimely filed.

FACTUAL AND PROCEDURAL BACKGROUND

On Wednesday, January 13, 2010, the trial court issued a minute order (Arrears Order) setting the amounts of child support arrears Father owes for the period of December 1, 2001, through November 30, 2009, as follows: (1) $4,571.08 in principal and $528.88 in interest to Mother; and (2) $5,252.75 in principal and $2,033.53 in interest to County. On Monday, January 25, 2010, Father filed an order to show cause (OSC) motion requesting that the court reconsider or grant him relief from and set aside the Arrears Order on various grounds, including mistake and neglect. County opposed the OSC, arguing Father did not allege sufficient facts showing he was entitled to relief under either Code of Civil Procedure section 1008 or section 473. County also argued Father's motion was untimely filed under section 1008. In rebuttal, Father filed a declaration asserting his motion was filed under both section 1008 and section 473 and that the court incorrectly calculated the amounts of his child support arrears.

All statutory references are to the Code of Civil Procedure unless otherwise specified.

On April 8, the trial court issued a minute order denying Father's motion as untimely. Father timely filed a notice of appeal.

DISCUSSION

Timeliness of Motion

Father contends the trial court erred by denying his motion based on the ground that it was untimely filed.

A

Section 1008, subdivision (a), provides: "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law claimed to be shown." (Italics added.)

Based on the record in this case, we conclude Father's motion was timely filed under section 1008. As Father notes, the Arrears Order was issued on a Wednesday (January 13, 2010). Assuming arguendo Father was served by Mother and/or County with written notice of entry of that order on January 13, the 10-day period for filing a section 1008 motion did not end until Monday, January 25, on application of the provisions of section 12a, subdivision (a).

The record on appeal does not contain any proof that a written notice of entry of the Arrears Order was served on Father by Mother and/or County. If a written notice had not, in fact, been served on Father before January 25, 2010, the 10-day period for filing a section 1008 motion would not have begun to run before Father filed his motion on January 25.

Section 12a, subdivision (a), provides:

"If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, 'holiday' means all day on Saturdays [and] all holidays specified in Section 135...." (Italics added.)

Section 135 provides: "Every full day designated as a holiday by Section 6700 of the Government Code... is a judicial holiday...." Government Code section 6700 provides: "The holidays in this state are: [¶] (a) Every Sunday...." (Italics added.) Accordingly, all Saturdays and Sundays are holidays within the meaning of section 12a, subdivision (a). Because the 10th calendar day after January 13, 2010 (the date on which the Arrears Order was issued), was a Saturday (i.e., January 23), the last day for Father to timely file a section 1008 motion could not have been any earlier than the following Monday (i.e., January 25). (§§ 12a, subd. (a), 135, 1008, subd. (a); Gov. Code, § 6700; cf. Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 202-203.) Therefore, Father's motion was timely filed under section 1008.

B

Furthermore, we conclude Father's motion was timely filed under section 473. Section 473, subdivision (b), provides in pertinent part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief... shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Italics added.) Because Father filed his motion 12 days after the Arrears Order was issued, that motion was clearly filed within a reasonable time (and within six months) after that order was issued. Therefore, Father's motion was timely filed under section 473. (§ 473, subd. (b); cf. Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

C

We conclude the trial court erred by dismissing Father's motion as untimely filed. Because the court erroneously dismissed Father's motion as untimely filed, it did not address the substance of that motion and did not exercise its discretion under sections 1008 and 473. In failing to do so, the court abused its discretion. (Cf. In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515 ["[a] trial court's failure to exercise discretion is itself an abuse of discretion"]; Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449 [same].) Accordingly, we remand the matter to the trial court so that it may consider the merits of Father's motion and exercise its discretion under sections 1008 and 473. (Cf. People v. Orabuena (2004) 116 Cal.App.4th 84, 100.)

DISPOSITION

The order is reversed and the matter is remanded for further proceedings consistent with this opinion. Father shall recover his costs on appeal.

WE CONCUR: BENKE, Acting P. J., NARES, J.


Summaries of

In re Marriage of Prusinskas

California Court of Appeals, Fourth District, First Division
Feb 16, 2011
No. D057213 (Cal. Ct. App. Feb. 16, 2011)
Case details for

In re Marriage of Prusinskas

Case Details

Full title:In re the Marriage of MARTHA PRUSINSKAS and WALTER MARTYN. MARTHA…

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 16, 2011

Citations

No. D057213 (Cal. Ct. App. Feb. 16, 2011)