Opinion
B227246
10-25-2011
In re Marriage of DENISE MARTINEZ and STEVEN RONALD LASCANO. DENISE MARTINEZ, Appellant, v. STEVEN RONALD LASCANO, Respondent.
Law Office of Cristian M. Ramorino, Cristian M. Ramorino for Appellant. Kendall & Gkikas, Kristina Kendall-Gkikas for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KD072915)
APPEAL from orders of the Superior Court of Los Angeles County. Susan Lopez-Giss, Judge. Affirmed.
Law Office of Cristian M. Ramorino, Cristian M. Ramorino for Appellant.
Kendall & Gkikas, Kristina Kendall-Gkikas for Respondent.
Denise Martinez appeals from orders setting aside a default judgment and modifying child support. Although the trial court was largely responsible for the initial improper entry of the default judgment, we find that its eventual decision to set it aside was proper. We also find no compelling basis to reverse the order modifying child support. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Steven Lascano and Denise Martinez were married in January 2005. They had a son in November of that year. On March 10, 2008, Denise filed a petition for nullity of marriage. She alleged that Steven never obtained a divorce from his former wife, and therefore the marriage between Denise and Steven was a nullity due to being bigamous. The action was assigned case No. KD072915. The same day, Denise also filed a petition to establish parental relationship, seeking to have Steven adjudged the father of their son. That action was assigned case No. KF008676.
Because the record indicates that Denise previously took Steven's last name of Lascano, for clarity of reference we refer to Denise and Steven by their first names.
The trial court held its initial hearing on May 1, 2008. Denise appeared at the hearing in propria persona. Steven did not appear. At the hearing, the court noted that there was a third case involving the couple, in which a restraining order had been issued. That case had been filed about a year earlier and was assigned case No. KQ008634. On its own motion, the court consolidated the three cases, deeming KD072915 (the nullity action) the lead case.
One week later, on May 8, 2008, Steven filed an ex parte application in case No. KD072915 seeking, among other things, custody, child support, and spousal support. Within the stack of papers filed by Steven were a separate property declaration, an income and expense declaration, and a "response to petition to establish parental relationship," each bearing case No. KD072915. All the papers were apparently filed together, since only the ex parte application—the document on top of the stack—was stamped "filed" by the court. The trial court (Judge Susan Lopez-Giss) noticed that Steven had filed some sort of response, though. At the hearing on the ex parte application, the court stated "the respondent has responded to the nullity petition as well as paternity petition."
After bringing his ex parte application, Steven failed to appear at subsequent hearings. During a November 2008 hearing, at which Denise appeared with retained counsel, the trial court suggested that Denise proceed by default. When reminded by Denise's counsel and minor's counsel that Steven had filed a response, the court stated it would set the matter for trial, and "if [Steven] doesn't show up, you can proceed by default judgment." The court set the trial date for March 2, 2009. The court ordered Denise's counsel to prepare a proposed judgment and serve it, along with notice of the trial date, on Steven. The court further ordered that Denise would have full legal and physical custody of the couple's son.
Steven claimed he did not appear because he was not given notice of the hearings. Denise argued that Steven was given notice. We make no determination either way since this issue is immaterial to this appeal.
Denise appeared with her attorney on March 2, 2009, as did minor's counsel. Steven was absent. Denise had not submitted a trial brief or other trial documents, but had filed a proposed judgment. During discussions with Denise's counsel regarding the terms of the proposed judgment, the trial court interjected: "One minute. I don't show that the respondent ever filed a response to the petition for nullity of the marriage." The court noted that Steven had filed a "response to petitioner [sic] to establish a parental relationship . . . but he [did] not file a response to the petition for nullity." The court then told Denise's counsel, "So the proper procedure in order to proceed on the petition for nullity is you have to ask that a default be entered on the response for the petition for nullity." Denise was ordered to serve Steven with a notice of default. The default hearing was set for April 2009.
Denise filed a request for entry of default, and on April 14, 2009, the trial court entered a judgment of nullity. Among other terms, the judgment stated that Steven was the father of the couple's son. The judgment further required Steven to pay $1,933 a month for child support.
Apparently, Steven's interest in the proceedings was somewhat piqued when he received the judgment, because in May 2009 he filed orders to show cause seeking modification of child support and custody. The record is largely silent as to what occurred over the next year. A contempt action for failure to pay attorney fees and child support was brought against Steven, but was dismissed in April 2010.
On June 3, 2010, Steven, through his retained attorney, filed a motion to set aside the April 14, 2009 judgment. In a supporting declaration, Steven stated that he had filed a response in the action shortly after he was initially served, but that default had been entered against him anyway. Steven further stated that his marriage with Denise was legal, because his prior wife was already married at the time she married him, making his earlier marriage void. He also declared that his total income for all of 2009 was $13,575, an amount much lower than the income necessary to pay child support of $1,933 a month.
On August 5, 2010, the trial court heard the motion to set aside the judgment, as well as the orders to show cause regarding child support and custody filed by Steven in May 2009. At the time of the hearing, Steven had a 19 percent time share of the couple's son. The court did not modify this time share arrangement. The court did, however, grant Steven's motion to set aside the judgment and the order to show cause regarding child support.
The court said that it made a mistake by entering the default judgment. Because Steven had filed a response in the lead case and the cases were consolidated, entry of default was inappropriate. The court termed the mistake a "clerical error" and found that the time limitations usually applicable to vacating a judgment did not apply. The judgment was vacated "as to the issues of Spousal Support and Nullity." The child support order was modified so that Steven was responsible for paying Denise $131 a month for the period of June 1, 2009 to June 30, 2010. Beginning July 1, 2010, Denise was to pay Steven $25 per month.
DISCUSSION
Denise contends that the trial court improperly vacated the judgment and that child support should not have been modified. As these are postjudgment orders, they are reviewable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). (See County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 834; County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1250.)
I. Vacating the Default Judgment
In the trial court, Denise argued that the court lacked authority to vacate the default judgment because Steven waited too long to seek to set it aside. She renews this argument on appeal.
Judgment was entered on April 14, 2009. Steven moved to set aside the judgment more than a year later, on June 3, 2010. In vacating the judgment, the trial court stated that entry of the judgment was a "clerical error," and that the court has authority to correct a clerical error at any time. A clerical error usually refers to a minor mistake in a judgment that can be corrected in a manner not amounting to a substantial modification. (See, e.g., Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222; Nestlé Ice Cream Co., LLC v. Workers' Comp. Appeals Bd. (2007) 146 Cal.App.4th 1104, 1109-1110; CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048.) Obviously, there was much more than a minor mistake here, since the judgment (or, at least a substantial portion of it) was vacated. This was not merely a clerical error. However, though the terminology used by the trial court may have been imprecise, we review the result, not its reasoning. (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1527.) The judgment was based on a default that never should have been entered, and the trial court therefore properly vacated it.
As Steven correctly contends, this case is not governed by Code of Civil Procedure section 473, subdivision (b) or Family Code section 2122, subdivision (a). Respectively, those sections require that a motion to vacate a judgment based on "mistake, inadvertence, surprise, or excusable neglect" be brought within six months after entry of judgment; or, when the motion is based on "actual fraud" in a family law proceeding, that it be brought one year after the fraud was discovered or should have been discovered. (Code Civ. Proc., § 473, subd. (b); Fam. Code, § 2122, subd. (a).) The motion to set aside the judgment here was governed by Code of Civil Procedure section 473, subdivision (d), which provides that the court "may, on motion of either party after notice to the other party, set aside any void judgment or order." The court has authority to set aside a void judgment at any time. (Baird v. Smith (1932) 216 Cal. 408, 410; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862; Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1320.)
A judgment based on an invalid entry of default is void. (Schwab v Southern California Gas Co., supra, 114 Cal.App.4th at p. 1320.) Neither the clerk nor the court is authorized to enter a default when there is an answer on file. (Wilson v. Goldman (1969) 274 Cal.App.2d 573, 576-577.) In determining whether default may be entered, a "response" in a family law proceeding is equivalent to an "answer" in a civil action. (See Cal. Rules of Court, rules 5.120(a)(1), 5.122.) There is no dispute that Steven filed a response in the action on May 8, 2008. Therefore, the court and the clerk were without power to enter a default.
The alleged deficiencies with Steven's response are immaterial. Denise argues that since Steven filed a "response to petition to establish parental relationship," he never filed a valid response to the petition for nullity, and so default was proper. But, the content of Steven's response could not be parsed for sufficiency. It was the fact that he filed a "response" that was determinative. "It is settled that the entry of default by the clerk is a ministerial duty and that he has no authority whatever to determine the sufficiency, either as to the substance or form, of a pleading on file." (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 143; see also Stevens v. Torregano (1961) 192 Cal.App.2d 105, 112.) By the time Steven filed his response, all matters had been consolidated into the lead case, KD072915. It was a complete consolidation, "where the [multiple] actions are merged into a single proceeding under one case number." (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) Steven's response was filed in the lead case, and bore the case No. KD072915. The response thus foreclosed entry of default.
Denise's argument that the end result would have been the same if default had not been entered likewise cannot compel reversal. According to Denise, since Steven did not appear for trial, she would have been able to obtain a judgment of nullity, whether by default or not. None of the cases cited to by Denise support her position. The cases do not relate to the effect of a void default and default judgment. Moreover, we cannot reverse based on a hypothetically possible result, and we must review the proceedings as they actually unfolded. "Where the defendant who has answered fails to appear for trial 'the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action.'" (Wilson v. Goldman, supra, 274 Cal.App.2d at p. 576.) "Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant's failure to appear at trial, and a default entered after the answer has been filed is void." (Id. at p. 577.) Denise did not proceed to trial on the date set, but instead obtained an improper default. The judgment was therefore void and cannot possibly be construed as being effective.
We recognize that very little, if any, of this problematic situation was caused by Denise. On more than one occasion, Denise's counsel actually reminded the trial court that Steven had filed a response. The trial court erroneously instructed Denise to proceed by default anyway. The trial court's initial errors and its extremely belated recognition of them are at this point inconsequential, however, since vacating the judgment was required. "If . . . the default and subsequent judgment are void, the order vacating them must be affirmed, for a judgment which is void upon its face is a dead limb upon the judicial tree which may be lopped off at any time. Such a judgment may be set aside by the court at any time, and it is immaterial how the invalidity is called to its attention." (Baird v. Smith, supra, 216 Cal. at p. 410.)
II. Modification of Child Support
Separate from the issue of vacating the judgment, Denise argues that the trial court improperly modified the child support order at the August 5, 2010 hearing. She contends that there were four problems with the court's decision: (1) there was not a material change of circumstances; (2) Steven failed to submit tax returns as part of his request to modify child support; (3) the trial court did not allow Denise to present evidence relevant to the modification; and (4) the court improperly ordered Denise to seek reimbursement for child-care costs. We find that none of these contentions compels reversal.
A child support order may be modified when there has been a material change of circumstances. (In re Marriage of Williams, (2007) 150 Cal.App.4th 1221, 1234.) "The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. [Citation.] The reviewing court will resolve any conflicts in the evidence in favor of the trial court's determination." (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.) The trial court clearly had a reasonable basis for finding a material change of circumstances. When the initial child support order was made, income of $15,000 per month was imputed to Steven. In seeking modification, Steven presented evidence that he had been working odd jobs and his income for the entirety of 2009 was $13,575. Furthermore, by the time of the hearing on modification, Steven's time share had increased from 0 percent to 19 percent. The trial court did not abuse its discretion by determining that these were material changes.
Relying on Family Code section 3665, which provides that copies of the prior year's tax returns are to be attached to a party's income and expense declaration, Denise next argues that Steven improperly failed to submit his tax returns in seeking modification. This argument is not well taken. As Steven points out in his respondent's brief, the record reflects that he filed his 2009 tax return with the court on June 3, 2010, well in advance of the hearing on child support modification. The trial court thus had information sufficient to make a finding regarding Steven's income. Furthermore, even if Denise were to object that the tax return was somehow deficient, without a prior motion to compel it would be error for the trial court to assign an income figure due to a deficient production of tax returns. (In re Marriage of Loh (2001) 93 Cal.App.4th 325, 330-331.) The record does not show that Denise ever brought a motion to compel Steven's tax returns.
The record also does not support Denise's third argument, that the trial court did not allow her to present information relevant to the requested modification. In support of this argument, Denise cites to In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 298, which states, "Where child support orders are concerned, 'contested factual issues . . . require an evidentiary hearing.'" Denise does not explain how the trial court prevented her from presenting evidence. Steven and Denise both submitted exhibits with declarations relevant to their income. While Denise may not have been satisfied with the court's determination of her income, this was a factual determination for the trial court to make. In reviewing a child support order, "[w]e do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order." (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) Since the court's order was supported by Denise's salary records, we will not substitute our judgment for that of the trial court. Furthermore, Denise's failure to request an evidentiary hearing precludes her from now arguing that she should have been allowed to present further evidence at the hearing. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150-1151, fn. 4 [trial court did not err by deciding support on basis of declarations alone when husband failed to object]; Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687 [plaintiff failed to request testimony at hearing thereby forfeiting the right to testimony].)
Family Code section 217, subdivision (a), provides that at a hearing on an order to show cause, "the court shall receive any live, competent testimony that is relevant and within the scope of the hearing." This section was not effective until January 1, 2011. Thus, it did not apply to the August 2010 hearing at issue here.
Denise's final argument relating to child support is that the trial court improperly required her to submit child-care receipts to Steven's attorney for reimbursement rather than just requiring Steven to pay a set amount. Again, to the extent that Denise may have been able to claim that this procedure was improper, the argument was clearly forfeited. Denise's counsel did not object to the procedure at the hearing or seek to have it modified in the trial court. Instead, it appears from the record that Denise's counsel was at least partially responsible for suggesting the procedure, by stating: "Being there will be day care costs in the future, presentation of receipts subject to reimbursement." We cannot find that the trial court abused its discretion when the appellant acquiesced to the order's terms in the trial court. Furthermore, as pointed out by Steven, if any arrearages do result, Denise may file a motion in the trial court for determination of arrearages and then enforce any resulting order. She may also seek to have the reimbursement procedure modified in the trial court.
III. Request to Disqualify Trial Court Judge
Lastly, Denise requests that we order this case assigned to a different judge for further proceedings. Denise states that the current judge appears to lack impartiality, exhibiting bias against her and her attorney. We deny this request.
The problems that occurred in the trial court did not appear to arise from a lack of impartiality, but rather from a lack of attention to detail. There is no reason to assume that similar problems will occur in the future. "The power of the appellate court to disqualify a judge under Code of Civil Procedure section 170.1, subdivision (c), should be exercised sparingly, and only if the interests of justice require it." (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303.) Denise has not shown that the interests of justice require disqualification here.
DISPOSITION
The orders setting aside the judgment and modifying child support are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.