Opinion
B158543.
7-29-2003
In re Marriage of DELAINE G. SORATORIO and DANNY A. GONZALEZ. DELAINE G. SORATORIO, Appellant, v. DANNY A. GONZALEZ, Respondent.
Gregory T. Annigian for Petitioner and Appellant. No appearance for Respondent.
Delaine G. Soratorio (appellant) appeals from an order dismissing her petition for dissolution of marriage for failure to serve respondent Danny A. Gonzalez (respondent) with a summons and a copy of the petition. We affirm the order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant married respondent in July 1991. They had one child, born November 30, 1992. On October 28, 1993, appellant filed a petition for dissolution of the marriage, Case No. KD016715 (the First Case). A proof of service dated October 30, 1993, showing receipt by Katheryn Gonzalez, respondents sister, reflects service of an Order to Show Cause, Application for Order and Supporting Declaration as well as an Income and Expense Declaration, but does not reflect service of the summons and petition. In December 1993, appellant attempted to obtain a default judgment. The court denied the request based on faulty service of the request to enter default. At a hearing on December 15, 1993, the hearing on the Order to Show Cause was held and respondent was ordered to pay appellant $ 474.00 in child support. Respondent claimed he was never served with a copy of this order.
On May 13, 1997, appellant filed a second petition for dissolution against respondent, Case No. KD033261 (the Second Case).
In November 1997, at their sons birthday party, respondent agreed to pick up the divorce papers from appellants home. Respondent went to appellants home and picked up the summons and petition for the Second Case, with Jose Garcia present.
Appellant apparently attempted to have default judgment entered in the First Case, but there is no proof of this in the record. Respondent claimed he never received any notices about these attempts.
A default judgment was entered in the Second Case in September 2000, but respondent claims never to have received any notice of the proceedings in the Second Case.
Apparently, on March 30, 2001, the District Attorney filed a request for a support enforcement and earnings assignment order in the First Case, requesting support payments from December 1993, plus 10 percent interest. Respondent then filed an application to quash service of summons in the First Case, to set aside the support order of December 1993 for lack of jurisdiction and to dismiss the First Case. In opposition to this application, appellant filed another Declaration of Lost Summons in the First Case, reflecting that Jose Garcia served a summons, petition, and other forms on respondent on October 30, 1993.
On January 18, 2002, a hearing was held on the application. The court heard testimony from appellant, respondent and Jose Garcia. The court determined that none of the proofs of service signed by Katheryn Gonzalez showed service of the petition. Garcia testified that he gave respondent a copy of the summons, petition, request to enter default, notice of entry of judgment and judgment in October 1993. The court found that since some of those documents were not even filed until August 1994, Garcia was not credible. The court found that in the First Case, appellant failed to serve the petition on respondent within three years, and all orders in the First Case were vacated nunc pro tunc and the First Case was dismissed for lack of jurisdiction.
Appellant contends on appeal that the court did have jurisdiction of the First Case, and that there is an exception Code of Civil Procedure section 583.161 (the five year dismissal rule) for dissolution actions. Respondent did not file a brief.
DISCUSSION
Code of Civil Procedure section 583.161 provides: "No petition filed pursuant to Section 2330 of the Family Code shall be dismissed pursuant to this chapter if any of the following conditions exist: [P] (a) An order for child support has been issued in connection with the proceeding and the order has not been (1) terminated by the court or (2) terminated by operation of law pursuant to Sections 3900, 3901, 4007, and 4013 of the Family Code. [P] (b) An order for spousal support has been issued in connection with the proceeding and the order has not been terminated by the court. [P] (c) The petition is for dissolution of the marriage and a separate trial on the issue of the status of the marriage has been conducted pursuant to Section 2337 of the Family Code."
Family Code section 3601, subdivision (a) provides: "An order for child support entered pursuant to this chapter continues in effect until the order (1) is terminated by the court or (2) terminates by operation of law pursuant to Sections 3900, 3901, 4007, and 4013. [P] (b) Subject to Section 3602, subdivision (a) applies notwithstanding any other provision of law and notwithstanding that the proceeding has not been brought to trial within the time limits specified in Chapter 1.5 (commencing with Section 583.110) of Title 8 of Part 2 of the Code of Civil Procedure."
Together these statutes provide an exception to the dismissal for lack of prosecution statutes for marital dissolution proceedings if there are bifurcated issues pending (In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372), or in any case in which a pendente lite child support order has been obtained (e.g. where the parents are not married). (County of Orange v. Quinn (2002) 97 Cal.App.4th 956, 961.)
In this case, however, the court found no valid service of the summons and petition in the First Case. The case was dismissed for failure to serve within three years, under Code of Civil Procedure section 583.210 and not Code of Civil Procedure section 583.161.
Here, no action was pending because the summons and petition had not been served. (Fam. Code, § 2331; Cal. Rules of Court, rule 1217.) Because there was no pending action, the court should not have made a support order in December 1993. (Fam. Code, § 3600 ; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1037.) Because the order was void, the dismissal of the First Case was proper. (Baldwin v. Baldwin (1946) 28 Cal.2d 406, 414, 170 P.2d 670.)
DISPOSITION
The judgment (order of dismissal) is affirmed.
We concur: VOGEL (C.S.), P.J. CURRY, J. --------------- Notes: According to respondent, appellant apparently attempted to serve the respondent with only a summons and a request to enter default before the case was filed, but a copy of this proof of service is not contained in the record.