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In re Marriage of Whitlow-Foat

Court of Appeals of California, Third District, (Sacramento).
Nov 12, 2003
C043928 (Cal. Ct. App. Nov. 12, 2003)

Opinion

C043928.

11-12-2003

In re the Marriage of LORETTA INEZ WHITLOW-FOAT and DAVID WILLIAM FOAT, JR. LORETTA INEZ WHITLOW-FOAT, Respondent, v. DAVID WILLIAM FOAT, JR., Appellant.


On January 13, 2003, appellant David William Foat, Jr., (Foat) was ordered to increase his child support payments to respondent Loretta Inez Whitlow-Foat (Whitlow). He was also ordered to pay 50 percent of the uninsured health care and educational costs for the couples two minor children and reimburse Whitlow for other expenses incurred on behalf of the children.

In a four-page opening brief, Foat contends he is entitled to reversal on appeal because he received late notice of the hearing on Whitlows order to show cause. Whitlow did not file a brief in response to Foats contention. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2002, the court issued an order to show cause on Whitlows request for modification of custody, reimbursement of expenses, and increase in child support from $1,050 per month, the amount set in an order issued on February 27, 2001. Among other things, Whitlow argued Foat had misrepresented his actual income. The court scheduled a hearing on January 13, 2003.

Foat was personally served with the order to show cause at family court services on January 3, 2003. Proof of service was filed on January 6, 2003. Foats attorney wrote the court on January 9, 2003, stating that service was untimely and defective. He did not request a continuance of the hearing.

Foat did not respond to the order to show cause or appear at the January 13, 2003, hearing. Whitlow appeared in propria persona. After noting that Foat participated in the mediation process, the court proceeded in his absence. Later the court realized the order recommended by family court services involved financial issues and suggested continuing the matter so that Foat could be timely served. Whitlow explained that Foat had refused to give her his address and asked if the time could be shortened.

Instead, the court proceeded with the hearing. Whitlow claimed Foat earned $8,500 per month. The court modified the previous child support order requiring Foat to pay the guideline amount of $1,953 based on a monthly income of $8,500.

DISCUSSION

I

Fundamental Jurisdiction of the Court

Foat argues the trial court lacked jurisdiction to rule on the request for modification of child support because there was no proof of timely service. He does not contend he was denied due process (see Cal. Rules of Court, rule 14(a)(1)(B)), although he mentions in passing that his appeal "highlights the essence of the due process requirement of notice."

Foats claim of error is directed at the violation of Code of Civil Procedure section 1005, subdivision (b), a procedural statute. This statute does not implicate the courts jurisdiction "in the fundamental sense of jurisdiction of the subject matter and the parties." (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 276, p. 840.)

Once the trial court acquires fundamental jurisdiction over the parties and subject matter in an action for dissolution of marriage, it maintains that jurisdiction and may modify child support orders after the marriage is dissolved. (Code Civ. Proc, § 410.50, subd. (b); Fam. Code, § 3651; Moore v. Superior Court (1928) 203 Cal. 238, 241-243.)

II

Failure to Provide Timely Service

Foat argues that although the family law court had fundamental jurisdiction, it still lacked the power to grant the relief Whitlow requested because she did not serve him with the order to show cause in a timely fashion.

Under the Family Code, no modification of the judgment of dissolution, permanent order, or subsequent order is valid "unless any prior notice otherwise required to be given to a party to the proceeding is served, in the same manner as the notice is otherwise permitted by law to be served, upon the party." (Fam. Code, § 215; In re Marriage of Lugo (1985) 170 Cal.App.3d 427, 434.) The fact the nonmoving party has actual notice of a pending hearing does not excuse the moving party from giving the written notice required by statute. (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 442; Lugo, at p. 434.)

There is no dispute Whitlow failed to serve Foat with the order to show cause and supporting papers within the 21-calendar-day period set forth in Code of Civil Procedure section 1005. However, he was personally served with written notice 10 days before the hearing.

Article VI, section 13 of the California Constitution provides that "[n]o judgment shall be set aside . . . in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (See also Arnold v. Arnold (1946) 76 Cal.App.2d 877, 880.) "A miscarriage of justice occurs when it appears that a result more favorable to the appealing party would have been reached in the absence of the alleged errors. (People v. Watson (1956) 46 Cal.2d 818, 836 . . . .) The burden is on the appellant in every case to show that error has resulted in a miscarriage of justice. [Citation.] Further, `appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. [Citation.]" (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945 [timeliness of motion to vacate forfeiture and exonerate bail under Pen. Code, §§ 1305, 1305.4].)

In In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419, the court held that "[w]here `[t]he statute does not provide a penalty or consequence for noncompliance, [and there is no] suggestion the Legislature intended to strip the court of jurisdiction in the event of a delay . . . , the language should be considered directory rather than mandatory." "The lack of strict compliance with [the procedural statute], in the absence of prejudice, does not render the subsequent proceedings void."

The letter from Foats attorney to the court did not claim Foat was prejudiced by Whitlows failure to serve the order to show cause 21 calendar days before the January 13, 2003, hearing. Nor did he request a continuance of the hearing on that ground.

Foat compounded his error of not attending the trial court hearing by failing before this court to demonstrate prejudice resulting in a miscarriage of justice. The court did not err in ruling in his absence.

DISPOSITION

The order is affirmed. Respondent shall recover her costs on appeal. (Cal. Rules of Court, rule 27(a).)

We concur: SCOTLAND, P.J. and NICHOLSON, J. --------------- Notes: This section provides that all motions and supporting papers "shall be served and filed at least 21 calendar days before the hearing"


Summaries of

In re Marriage of Whitlow-Foat

Court of Appeals of California, Third District, (Sacramento).
Nov 12, 2003
C043928 (Cal. Ct. App. Nov. 12, 2003)
Case details for

In re Marriage of Whitlow-Foat

Case Details

Full title:In re the Marriage of LORETTA INEZ WHITLOW-FOAT and DAVID WILLIAM FOAT…

Court:Court of Appeals of California, Third District, (Sacramento).

Date published: Nov 12, 2003

Citations

C043928 (Cal. Ct. App. Nov. 12, 2003)