Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-90-FL000921
ELIA, J.Appellant Donald Kinzel returns to this court for a second review of an attorney fees award made more than 13 years ago in favor of his former wife, respondent Pamela Vanneman. On this occasion he contends that the order, which sanctioned him under Family Code section 271 for improper litigation conduct, was void, as it characterized the award as additional child support. Appellant's new argument fails.
All further statutory references are to the Family Code except as otherwise specified.
Background
The parties were married nearly eight years and separated in January 1990 when their daughter, Haley, was two years old. In 1992 a custody dispute arose when respondent planned to remarry and move to Roseville, California. The protracted battle that followed consumed considerable resources of the parties and the court, until 1994 when the superior court finally awarded legal and physical custody of Haley to respondent, with weekly visitation to appellant. In a bifurcated hearing, the court ordered appellant to pay half of respondent's attorney fees and costs, two-thirds of the fees and costs for Haley's court-appointed attorney, and half of the fees for Dr. Sullivan, the psychologist who had been appointed to conduct a custody evaluation.
Although the superior court stated that the payment of these fees and costs was to be "characterized as additional support for the minor child," it expressly made its award as a sanction against appellant pursuant to Family Code section 271. The court found that appellant had "frustrated the policy of the law to promote settlement and to reduce costs of litigation through cooperation between parties and attorneys." The court agreed with respondent's counsel that "this litigation has imposed a 'horrendous, financial burden' upon his client." Appellant or his counsel had initiated a "large quantity" of discovery; drafted orders that failed to reflect the court's rulings; "surreptitiously" had Haley examined by another psychologist, contrary to the strong recommendation of Dr. Sullivan; and made pejorative statements to Haley about respondent and the supposed dire consequences of Haley's anticipated move to Roseville. The court further noted that it was appellant's conduct that had made it necessary to appoint counsel to protect Haley's interests. Thus, the court was convinced that appellant's conduct justified the award of attorney fees "as a sanction."
Appellant filed an appeal from this order, claiming lack of notice of the award, insufficiency of the evidence to support it, and an unreasonable financial burden. Appellant insisted that there was " 'substantial contrary evidence' that he did not intend to frustrate settlement; indeed, Pamela and her attorney were the ones who [had] engaged in 'bad faith actions and tactics which were ignored by the trial court.' "
This court affirmed the order in August 1996 in an unpublished opinion (H013437). We observed that appellant's argument consisted "primarily of assertions that he did nothing wrong, unsupported accusations of perjury and other 'iniquitous and unlawful conduct' by Pamela and her attorney, and even imputation of blame to his own counsel for withdrawing three weeks before trial." We found no procedural irregularities and no abuse of discretion in the court's imposition of attorney fees as a sanction under Family Code section 271. Appellant had told respondent that if she did not agree to a 50-percent custody arrangement, he would prolong the litigation, and he had insisted that he would win no matter what it took. On one occasion he had threatened not to return Haley to her if he did not get his way. "Pamela's uncontradicted declarations and trial testimony revealed that Donald had resolved to wage war against her, to litigate this matter until he won and she was drained of 'every penny' she had. According to Pamela, Donald succeeded in this effort, forcing her into debt to pay more than $100,000 in fees and costs by the end of June 1994. Donald does not even attempt to address the impact of his litigious posture on Haley's need for parental cooperation and stability." In short, we concluded, "the sufficiency of evidence to support the sanctions order is irrefutable."
Appellant's petition for rehearing was denied, as was his petition for review by the Supreme Court. Nevertheless, nearly 10 years after exhausting these review opportunities appellant decided to try again. On June 13, 2006 he filed a motion in superior court to set aside or vacate the August 1994 attorney fees order. Relying on Boutte v. Nears (1996) 50 Cal.App.4th 162, which had been decided two months after H013437, appellant argued that the award of attorney fees as additional child support was unauthorized under section 4062 because it was not among the "add-ons" permitted by the Legislature to be designated as "additional child support." Hence, the award was "void on its face" and could be set aside at any time.
The trial court denied the motion, clearly expressing its view that the motion was "frivolous on its face. The taxpayers are tired of paying for this kind of proceeding. You've gotten all the due process that I'm aware of that the court system allows. And the relitigation of issues that are almost 20 years old and have been thoroughly looked at by the appellate courts of this state is utter nonsense. And you're lucky that your former wife is not represented by counsel, because if she were, she would be able to obtain an award as a sanction against this kind of activity; but she's not, and the statutes don't cover it."
Discussion
The threshold question before this court is whether appellant can overcome the untimeliness of his challenge. He insists that because the 1994 order is void, (1) the denial of his motion to vacate is appealable; (2) his motion was timely under Code of Civil Procedure section 473, subdivision (d); and (3) res judicata does not apply. Alternatively, he argues that the superior court abused its discretion in refusing to either set aside or modify the order characterizing the attorney fees award as child support, because "exceptional circumstances" justified his failing to raise the issue earlier.
The impetus for appellant's renewed effort is Boutte v. Nears, supra, 50 Cal.App.4th 162. In that case, a paternity action, the Third District held that section 4062 did not authorize the trial court to order the father to pay attorney fees to a third party-- the mother's attorney-- "as additional child support." (Id. at pp. 166-167.) The appellate court did not declare the defective order void, however; it simply modified the order to reflect that the amount awarded was for attorney fees under section 3652 to the prevailing party, not child support.
Likewise, in this case there is no basis for deeming the 1994 order void. As our Supreme Court has explained, "A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56; see also Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 288 [lack of fundamental jurisdiction means "an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties"].) "Once a court has established its power to hear a case, it may make errors with respect to areas of procedure, pleading, evidence, and substantive law." (In re Marriage of Goddard, supra, 33 Cal.4th at p. 56.) "This is so even though the determination be palpably erroneous, for fundamental jurisdiction, ' " 'being the power to hear and determine, implies power to decide a question wrong as well as right.' " ' . . . 'If [the] court has jurisdiction, it may decide the wrong as well as the right in the matter, and its decision is binding on all other persons, officers, and courts, save upon an appeal to the court having appellate jurisdiction of the cause.' (Italics added.)" (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 501.)
There can be no question that the court in August 1994 had fundamental jurisdiction over the parties and the subject matter before it. Indeed, appellant does not dispute that both the parties and the issue—whether attorney fees should be imposed against appellant as a sanction for his obstreperous behavior—were properly before the family court. He himself emphasizes that the attorney fees award was made pursuant to section 271, and he does not question the court's authority to proceed under that sanctions statute. Because the court unquestionably had personal and subject-matter jurisdiction, its order was not void.
To the extent that appellant is attacking only the phrase "as additional child support" in the 1994 order, that language still does not compel a finding of voidness. At most, that portion of the order would be in excess of the court's jurisdiction and thus voidable, not void. (Cf. In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 989 [order entered in excess of jurisdiction remains valid but voidable]; Carlson v. Eassa (1997) 54 Cal.App.4th 684, 696 [court had "a complete absence of power to accord relief, a judgment 'completely outside the scope of the court’s jurisdiction to grant' "].) The August 1994 order, having been upheld in H013437 as a proper exercise of the court's discretion, is not void, even if the language purporting to characterize the fees awarded as child support was unauthorized by section 4062.
When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, "its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by 'principles of estoppel, disfavor of collateral attack or res judicata.' [Citation.] Errors [that] are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless 'unusual circumstances were present which prevented an earlier and more appropriate attack.' " (People v. American Contractors Indem. Co. (2004) 33 Cal.4th 653, 661; see also People v. Tindall (2000) 24 Cal.4th 767, 776 [challenges to acts in excess of jurisdiction may be defeated due to "waiver, estoppel or the passage of time"].)
Appellant argues, however, that his present challenge is not a collateral attack, but a direct attack. That reasoning only weakens his position even further. In effect appellant is admitting to an attempt to obtain further appellate review of the same order we reviewed in H013437, an order that should have been complied with many years ago when the remittitur issued. Appellant offers no plausible excuse for obtaining "two bites at the appellate apple." (U.S. v. Fiallo-Jacome (11th Cir. 1989) 874 F.2d 1479, 1482; see also People v. Senior (1995) 33 Cal.App.4th 531, 538 [finding waiver where there was "no apparent justification as to why this issue could not have been raised the first time defendant's case was before this court"].) There was nothing preventing him from calling the trial court's attention to section 4062 when the court announced its decision to characterize the sanction award as additional child support. He did not even raise the issue in 1996 when Boutte was filed, just two months after this court filed the opinion in H013437. It makes no difference that he was not an attorney; absent a particular rule or statute, a litigant is not entitled any exceptional consideration just because he or she chooses to proceed without counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
Because the 1994 attorney fees award was not void, the entire foundation of appellant's attack collapses no matter how it is approached. First, an order denying a motion to vacate is generally not appealable if the underlying judgment is not void. "[O]therwise, an appellant would receive 'either two appeals from the same decision, or, if no timely appeal has been made, an unwarranted extension of time in which to bring the appeal.' " (Carlson v. Eassa, supra, 54 Cal.App.4th at p. 690, quoting In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1040.) As we have observed, appellant has improperly attempted to obtain two appeals from the same decision, albeit on a different ground.
That he raises this "new" ground does not save appellant's motion even if the denial (in 2006) of his motion to vacate the 1994 order is deemed appealable. First, the motion was indisputably untimely under Code of Civil Procedure section 473, the statute on which appellant claims entitlement to vacation of the 1994 order. Subdivision (b) of that section allows a court to relieve a party from an order entered "through his or her mistake, inadvertence, surprise, or excusable neglect." But the request for relief must be made "within a reasonable time, in no case exceeding six months" after the order. (Code Civ. Proc. § 473, subd. (b).) Thus, even if appellant had a reasonable excuse for his neglect to raise the issue of attorney fees characterized as additional child support, he has far exceeded the deadline for complaining.
The specific provision on which appellant relies -- Code of Civil Procedure section 473, subdivision (d) -- is inapplicable. That subdivision allows a court to "set aside any void judgment or order." But as we have just concluded, the August 11, 1994 order is not void. Furthermore, this provision is superseded in family law cases by section 3690. That statute allows relief from any part of a support order, even after the six-month limitation of Code of Civil Procedure section 473, subject to certain conditions. First, the facts alleged as the grounds for relief must have "materially affected the original order and . . . the moving party would materially benefit from the granting of the relief." Appellant has not suggested any way in which he would materially benefit from an order deleting the language "as additional child support" from the sanctions order. Second, relief may be granted under section 3690 only for actual fraud, perjury, or lack of notice. (§ 3691.) Appellant offered none of these grounds as a reason for affording him relief beyond the six-month period defined by Code of Civil Procedure section 473, subdivision (b).
Appellant also did not cite section 3693, which permits the court to set aside the specific parts of a support order that are "materially affected by the circumstances leading to the court's decision to grant relief. However, the court has discretion to set aside the entire order, if necessary, for equitable considerations." Lest appellant take this observation as an invitation to renew his challenge by invoking section 3693, we urge him to heed the trial court's comment that it would have imposed additional sanctions on him for bringing his motion, had respondent had counsel for the proceeding. Though we will not render an advisory opinion or speculate about future proceedings, we cannot imagine such a ruling being an abuse of discretion. Indeed, if on this occasion we had received a motion for sanctions for a frivolous appeal, we would surely have been inclined to grant it. (See Code Civ. Proc., § 907 and Cal. Rules of Court, rule 8.276(e).)
Another reason appellant's new argument must fail is that the propriety of the attorney fees award is res judicata. Just because appellant changed his theory between 1994 and 2006 does not save the new motion from being precluded by the disposition of the previous litigation. "It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties." (Pacific Mut. Life Ins. Co. of Cal. v. McConnell (1955) 44 Cal.2d 715, 725.) This is not a matter of collateral estoppel, in which an issue must have been actually litigated and necessarily decided in the previous proceeding; it is more appropriately characterized as claim preclusion, which can be applied to successive motions in family law matters. (See, e.g., Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028 [ruling on fraud in property division res judicata upon later motion with different theory]; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 600 [retroactivity condition of support order, even though in excess of jurisdiction, res judicata and beyond collateral attack seven years later].) "If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable." (Sutphin v. Speik (1940) 15 Cal.2d 195, 202; Marriage of Mason, supra, 46 Cal.App.4th at p. 1028.) "Were the rule to the contrary husband could search for yet a new theory and mount a third attack upon the stipulated judgment." (Marriage of Mason, supra, 46 Cal.App.4th at p. 1028.)
Finally, appellant offers no basis for finding prejudice. He objects to respondent's request for judicial notice that he filed for bankruptcy; accordingly, we will disregard that request. Having done so, we have no reason to assume that the characterization of the fee award as additional child support, even if erroneous under section 4062, makes any practical difference. He was, and is, still bound by the order, which was unequivocally and properly based on section 271. Haley is now almost 20 years old. If appellant is so recalcitrant as to have flouted the superior court's order for the last 13 years, it is long past time for him to dig in and pay up.
Disposition
The order is affirmed. Respondent is entitled to her costs on appeal.
WE CONCUR: RUSHING, P. J., PREMO, J.