Opinion
C081444
05-16-2018
In re the Marriage of JULIE and PETER SKEIE. JULIE SKEIE, Respondent, v. PETER SKEIE, Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SFL20150015)
Julie Skeie (Wife, to follow the style of the briefing) initiated this dissolution action on January 16, 2015, after moving to California from Tennessee with her two youngest minor children after separating from Peter Skeie (Husband) in November 2013; her oldest son (born June 1997) joined her in June 2014, while a younger son (born Jan. 1999) remained with Husband in Tennessee. She effected personal service of the summons on Husband, who was present in California, shortly after filing the petition. Husband did not timely file a responsive pleading. Wife requested entry of default on June 3, 2015; the court entered a default judgment shortly afterward—on June 18, 2015. (See Code Civ. Proc., § 580.) On July 24, 2015, Husband moved to set aside the default judgment, neglecting to make a request to set aside the underlying default as well. Finding that Husband in any event failed to demonstrate any excusable neglect in connection with the default, the court nonetheless granted the motion—under the policy of favoring a trial on the merits—solely for the purpose of setting a "prove-up" hearing in order to determine that evidence supported Wife's requested relief. Following the hearing, the court reinstated the judgment in December 2015 nunc pro tunc as of the date of the original judgment. Husband filed this appeal 59 days later.
Undesignated statutory references are to the Code of Civil Procedure.
Regardless of whether there is any likelihood that a different result would come after a remand—given that spousal and child support were calculated on the application of guidelines to Husband's substantial income (Wife, a stay-at-home mother, was at the time of judgment receiving public assistance); Husband was awarded the family home and its contents, the entirety of his law practice, and a debt for unpaid income tax arising from his law practice; Wife was otherwise awarded only personal property and her vehicle; and Wife was awarded legal fees because Husband had resources and she did not—due process requires a default judgment to be constrained within the limits of the allegations in the pleading. Here, the default judgment exceeded these limits with respect to the division of property, none of which was identified in the dissolution petition. We reject the remainder of Husband's arguments. We thus reverse the judgment only as to the property division and remand with directions to set aside the default for further proceedings on this issue, and otherwise affirm.
There is little we need to add to the above summary. Any additional necessary facts are included in the Discussion.
DISCUSSION
1.0 The Trial Court Lacked Jurisdiction to Make a Property Division
"The starting point for our analysis is section 580, which states quite simply, 'The relief granted to [a] plaintiff, if there be no answer, cannot exceed that which [is] demanded in [the] complaint . . . .' " (Parish v. Peters (1991) 1 Cal.App.4th 202, 207 (Parish).) This "constitutes a statutory expression of the mandates of due process, which require 'formal notice of potential liability.' " (Ibid., italics added, quoting Greenup v. Rodman (1986) 42 Cal.3d 822, 826 (Greenup).) This formal notice satisfies the right under due process to decide whether to defend an action or not. (Parish, supra, at pp. 213-214; accord, Greenup, supra, at p. 829.) Thus, except for personal injury or wrongful death cases (to which a different procedure applies (see §§ 425.10, 425.11)), "specific [relief] must be averred, either in the prayer or in the body of the complaint." (Parish, supra, at p. 214.) Actual notice will not take the place of formal notice. (Greenup, supra, at p. 826.) The formal notice of the relief sought must be given before the entry of the default. (Matera v. McLeod (2006) 145 Cal.App.4th 44, 61 [discussing service of statement of damages under § 425.11]; cf. Parish, supra, 1 Cal.App.4th at pp. 213-214 [providing for prove-up hearing after default does not cure a lack of notice of damages]; see Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435 [defendant entitled to notice of liability a reasonable period of time before default may be entered] (Schwab).)
The "bright-line rule for the requisite notice" was "somewhat dimmed" in Greenup (Parish, supra, 1 Cal.App.4th at p. 214), which held that an allegation that the relief sought exceeded the jurisdictional requirement of the superior court is sufficient to impart notice of the jurisdictional threshold and would therefore support a default judgment for relief in that amount. (Id. at pp. 214-215, citing Greenup, supra, 42 Cal.3d at pp. 829-830.) However, the Supreme Court subsequently made clear that Greenup could not be read as holding "that defendants are chargeable with constructive notice of the jurisdictional minimum of damages in all cases . . . ." (Parish, supra, 1 Cal.App.4th at p. 217.) We also held in Parish that a mere allegation that the relief sought is within the jurisdiction of the court is not the equivalent of a prayer for relief in an amount that exceeds the court's jurisdiction; "[t]his nebulous assertion does not meet the minimum due process standards for notice of the damages sought." (Parish, supra, at pp. 216-217.) In any event, following the unification of the municipal and superior courts, an unadorned reference merely to the superior court's "jurisdiction" no longer gives any notice of a minimum amount of relief sought, because all causes are now within the superior court's jurisdiction. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1529 (Van Sickle).)
Schwab, supra, 53 Cal.3d at pages 434 to 435 held that where the amount of punitive damages alleged of itself is enough to establish the jurisdiction of the superior court, a failure to specify the amount of general damages is fatal to a judgment of any amount for general damages.
In the specific context of a dissolution matter, In re Marriage of Lippel (1990) 51 Cal.3d 1160 (Lippel) dealt with applying these principles for default judgments to the prescribed form petition. A trial court cannot grant relief for an issue (in that case, child support) that was not designated by checking the particular box, abrogating a line of cases that had allowed the award of support in a default judgment even where the petition had not requested it. (Id. at pp. 1170-1171.) In re Marriage of Andresen (1994) 28 Cal.App.4th 873 (Andresen) interpreted Lippel as authorizing any type of relief on default designated in the form petition along with "inserting the information called for on the standard form dissolution petition . . . " without specifying the specific amount sought. (Andresen, at p. 879.) Because the wife in Andresen had identified the determination of property rights on the form petition and attached a property declaration that listed assets and liabilities, Andresen rejected the husband's claim that the division of property in the default judgment was void because the wife had not alleged the value of the property, a proposed disposition of the property, or an amount for the equalizing payment from the husband (all of which were nondelegable duties of a trial court with the issue properly before it). (Id. at pp. 877, 879-880.) While not directly on point, In re Marriage of Eustice (2015) 242 Cal.App.4th 1291 noted the wife's failure to attach a schedule of property to her petition ordinarily would preclude a disposition of property, although it ultimately concluded that under the circumstances (the husband had initially filed a responsive pleading that included a schedule of property, which the trial court struck for litigation misconduct) any deficiency in notice was waived (id. at pp. 1295, 1306-1307), reasoning that the husband "should not be permitted to benefit from his recalcitrance" (id. at p. 1307). In a distinguishing dictum, Van Sickle noted, "[g]iven that an equal division is required by law, the due process requirement of notice is satisfied if the spouse seeking dissolution . . . identifies the community assets to be divided in [the] petition and requests that the court divide [them]." (Van Sickle, supra, 196 Cal.App.4th at p. 1527, italics added.) A primary treatise on family law also makes this point: "jurisdiction to adjudicate [community property] [versus] [separate property] characterization [extends only] to those assets and liabilities listed in the petition or response . . . ." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 8:926, p. 8-327.)
In her form petition for dissolution, with respect to separate and community property, Wife asserted only that "the nature and extent of [each] is uncertain at this time." In response to Husband's arguments regarding Lippel, Andresen, and Eustice, she points only to the facts supporting Husband's motion to set aside the default judgment that demonstrate his awareness of the existence of various items of marital property (ignoring the principle that no amount of actual notice can remedy an absence of formal notice (Van Sickle, supra, 196 Cal.App.4th at p. 1527 ["The fact that the defendant may have access to materials from which it can calculate the extent of its liability is not a substitute for notice from the plaintiff of the [relief] the plaintiff is seeking."])), and suggests that Husband has forfeited the issue for failing to raise it in the trial court (ignoring the basic principle that a void judgment may be challenged at any time (Burtnett v. King (1949) 33 Cal.2d 805, 808 [default judgment in excess of demand is in excess of jurisdiction]; Yeung v. Soos (2004) 119 Cal.App.4th 576, 582 [void judgment subject to challenge at any time]). It is not enough that Husband would be on notice that a trial court would be exercising its duties in connection with the disposition of property where the property actually at issue is not identified. As a result, we conclude that the trial court did not have jurisdiction to order characterization of the marital property as either separate or community, or to divide the community assets and liabilities.
This disposition moots Husband's contention regarding the absence of a proof of service of a preliminary declaration of disclosure (Fam. Code, § 2100 et seq.), on which basis he had requested reversal of "the Default Judgment as it pertains to property rights." It also moots his claim that the trial court failed to make an independent valuation of the community estate, on which basis he had again asked for reversal of the property award. --------
In terms of the proper disposition, we need reverse a default judgment only to the extent it violates due process. (Andresen, supra, 28 Cal.App.4th at p. 886.) We thus limit our reversal of the judgment to the property disposition. In order to obtain a division of property Wife will also need to move to set aside the default with respect to the division of property, file an amended petition, and serve it on Husband. The grant of a motion to set aside a default is within the trial court's discretion to grant on remand; "[s]uch a resolution is particularly appropriate . . . [where] there is no [relief] of which [Husband] received proper notice to which the judgment could be reduced . . . ." (Van Sickle, supra, 196 Cal.App.4th at p. 1529.) However, as it does not appear the trial court could exercise its discretion otherwise, we will direct it on remand to set aside the default only with respect to the division of property, relieving Wife of the obligation to file a motion. We turn to the remainder of Husband's challenges to the judgment.
2.0 Husband Has Forfeited His Challenge to the Spousal Support Award
Husband contended in his opening brief that there was an absence of evidence of his income or of Wife's needs, and therefore the trial court could not have satisfied its obligation to consider the necessary statutory factors in setting spousal support. (Fam. Code, § 4320.) We thereafter granted Wife's motion to augment the record with the income and expense declaration that she presented to the trial court at the December prove-up hearing, attached to which is an e-mail from Husband in which he stated "I foresee no circumstances where my income would fall below $150,000. . . . I have earned at least this much every year for years. Looking to the future, my income will likely range from $180,000 to $250,000." He then provided an allocation schedule among his various expenses up to the first $30,000 he earned in a month, budgeting "household" expenses of $8,000 of the first $15,000 each month. Wife noted that she had assumed the superior court clerk would have included this exhibit when Husband included the prove-up hearing in his designation of the appellate record, as the minute order from the hearing provides that the exhibit was "presented and filed in open court."
Husband does not return to this issue in his reply brief despite its supporting premise being rebutted. As a result, he does not demonstrate affirmatively any manner in which an award of spousal support in the amount of $2,000 per month premised on the facts at the prove-up hearing regarding the anticipated income to which he admitted and Wife's estimated monthly expenses of $6,125 in her December 2015 declaration is an abuse of discretion under the statutory factors. We therefore reject this argument for want of adequate analysis.
3.0 The Argument Regarding Jurisdiction to Award Custody of the Nonresident Minor Living with Husband in Tennessee Is Moot
Husband contends the trial court lacked jurisdiction over the then minor child living with him in Tennessee. Wife does not respond to the argument beyond noting that any error is now moot in light of the fact the minor turned 18 in January 2017, and asks that we simply vacate the custody order as to the former minor. We agree that this issue is moot.
Husband contends the issue is not moot because the trial court awarded child support for the former minor based on a determination that Husband would have an 80 percent custodial status. He does not explain how this makes the matter any less moot. Even if determining that Wife was to have custody 20 percent of the time (and was entitled to child support in proportion) was beyond the jurisdiction of the trial court, custody nonetheless presumably took place according to those terms, and child support was paid pursuant to those terms until the minor turned 18. Husband fails to explain in what manner this court could fashion any relief through undoing past events. We therefore do not consider this issue further.
4.0 Husband Has Forfeited His Claim Regarding the Award of Legal Fees
In his opening brief, Husband, citing Wife's April 2015 income and expense declaration, asserted that the form left the section regarding requested legal fees unfilled. He again contends the resulting lack of evidence precluded the trial court from awarding legal fees to Wife. He also contends the trial court did not have any evidence of his expenses, in which case it could not make a determination that the award of legal fees was just and reasonable under the relative circumstances of both parties. (Fam. Code, § 2032.) Again, despite the augmentation of the record with the December 2015 declaration that completed the request for legal fees, with Wife's lawyer confirming that Wife has paid $6,500 from borrowed funds for her services, Husband does not explain in his reply brief how the award of $5,000 in the judgment is an abuse of discretion on the facts before the trial court that demonstrate Husband's vastly superior economic circumstances and Wife's status as a recipient of public assistance. He has therefore forfeited the argument.
DISPOSITION
The judgment is reversed only with respect to the disposition of property, with directions to set aside Husband's default to that extent. The judgment is otherwise affirmed. In light of the trial court's findings with respect to legal costs at the trial level, Wife shall recover her costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, J. We concur: ROBIE, Acting P. J. MAURO, J.