Opinion
D072391
04-30-2018
In re the Marriage of KIMBERLY A. and ELLIOTT P. WOOLLEY. KIMBERLY A. WOOLLEY, Respondent, v. ELLIOTT P. WOOLLEY, Appellant.
Richard C. Wildman for Appellant. Dunne & Dunne and Anthony J. Dunne for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN73254) APPEAL from an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Richard C. Wildman for Appellant. Dunne & Dunne and Anthony J. Dunne for Respondent.
Kimberly A. Woolley (Wife) filed the underlying dissolution of marriage action against Elliott P. Woolley (Husband) in October 1992. In November 1997, the family court filed, and the clerk of the court gave notice of entry of, a status-only judgment (Judgment), which dissolved the parties' marriage and reserved jurisdiction over all other issues. Almost 19 years later in August 2016, Husband filed an amended request for an order either (1) dismissing the dissolution action for Wife's failure to prosecute, or (2) vacating the 1997 Judgment and three sets of findings and orders after hearings, filed in April 2014, June 2014, and March 2015.
In April 2017, the family court filed its findings and order after hearing, denying Husband's August 2016 request for each of the orders (April 2017 FOAH). We will affirm the April 2017 FOAH. Husband is not entitled to have the dissolution action set aside, because the mandatory dismissal statute on which Husband relies is inapplicable in this case. Husband is not entitled to have the Judgment or any of the three sets of postjudgment findings and orders after hearings vacated, because none of those documents are void, and Husband did not timely seek to vacate or appeal from them.
I.
STATEMENT OF THE CASE
In violation of California Rules of Court, rules 8.124(b)(1)(A) and 8.122(b)(1)(F), Husband failed to include in his appendix a copy of the register of actions. (Further undesignated rule references are to the Cal. Rules of Court.) In response to a request from this court that Husband provide the required copy of the register of actions, Husband's counsel told the clerk's office that it was too difficult for him to obtain. Accordingly, we ordered the superior court file.
On our own motion, we have augmented the record to include an order filed July 28, 1993, in which the family court awarded Wife family support (July 1993 Support Order). (Rule 8.155(c), (a).) The July 1993 Support Order will be discussed post at part II.A.2.a.
This appeal involves the validity of a judgment and three sets of findings and orders after hearings. We will deal separately with each of the two groups of substantive rulings on appeal, both contained in the same April 2017 FOAH. A. Husband's 2016 Request for an Order Vacating the 1997 Judgment and Dismissing the 1992 Dissolution Action
In October 1992, Wife filed the underlying dissolution action. As relevant to the issues on appeal, Wife petitioned for dissolution of marriage, alleging a June 1987 date of marriage, an October 1992 date of separation, and a three-year-old child of the marriage.
In December 1992, Husband filed his response to Wife's petition. In addition to the required responses, which included the same dates of marriage and separation and identified the same child of the marriage, Husband affirmatively requested that the court dissolve the parties' marriage.
Following a stipulation signed only by the parties' attorneys (i.e., not signed by the parties themselves), on November 20, 1997, the family court filed a status-only judgment (previously identified as the Judgment) that dissolved the parties' marriage and reserved jurisdiction over all other issues.
Almost 19 years later in August 2016, Husband filed an amended request for orders (RFO to Vacate/Dismiss), in part to vacate the Judgment and dismiss the underlying dissolution action. Husband based the request for dismissal on Code of Civil Procedure sections 583.310 and 583.360, which together provide that an action "shall be brought to trial within five years after the action is commenced" (§ 583.310), and if not the court "shall" dismiss the action, either on its own motion or on the motion of the opposing party, after notice to the parties (§ 583.360, subd. (a)). Husband argued that Wife filed the dissolution action in October 1992, the court did not enter Judgment until November 1997 (i.e., more than five years after the commencement of the action), and no extension, excuse, or exception applied to the mandatory dismissal language. In addition, Husband contended that, on two grounds, the Judgment should be vacated, because it was void.
Further undesignated section references are to the Code of Civil Procedure.
Wife opposed Husband's RFO to Vacate/Dismiss, filing a memorandum of points and authorities and a responsive declaration.
Following the hearing, as part of the April 2017 FOAH, the family court denied that portion of the RFO to Vacate/Dismiss in which Husband sought an order vacating the Judgment and dismissing the dissolution action. First, the court acknowledged that, for purposes of section 583.310, the case was not brought to trial within five years of the filing of the petition. The court then ruled that the doctrines of equitable estoppel and ratification precluded application of section 583.360, subdivision (a)'s mandatory dismissal. According to the court, because Husband's attorney signed the stipulation to bifurcate the issue of marital status from the remaining issues and to terminate the marriage consistent with the statutory requirements prior to section 583.310's five-year deadline to bring the action to trial, Husband was equitably estopped from relying on the deadline. Also according to the court, because both parties proceeded for almost 20 years in reliance on the dissolution of their marriage in the Judgment—including specifically that both parties had married other people—the parties had ratified the actions of their attorneys who had signed the stipulation that resulted in the Judgment. B. Husband's Request for an Order Vacating Three Sets of Postjudgment Findings and Orders After Hearings
The record on appeal does not contain a reporter's transcript, agreed statement, or settled statement from this or any other hearing.
After entry of the Judgment and prior to the RFO to Vacate/Dismiss, in which Husband sought to vacate three sets of findings and orders after hearing, the parties engaged in discovery and related court proceedings that resulted in three separate post-Judgment rulings that are part of this appeal. Before we introduce Wife's three underlying requests for orders and related family court rulings, we first will summarize an issue that Husband contends is dispositive of all three: Husband relies on the fact that, at times, Wife and the family court used an incorrect address for service of process during the time that he was representing himself beginning in 2014.
During the first 11 years of the underlying litigation—i.e., from Husband's December 1992 initial response through mid-January 2014—Husband was represented by counsel. In late January 2014, Husband filed a substitution of attorney form, indicating that he was now representing himself. The form requires the party who is replacing counsel to provide an address and telephone number. On the January 2014 form that Husband used to give notice to the court and counsel, Husband listed what he now contends is an incorrect address. The form indicates that his street address is "1656 Bahia Way" in La Jolla, yet in a July 2016 declaration he stated that his correct address was "1656 Bahia Vista Way" in La Jolla.
We further reject Husband's suggestion that Wife or the family court is somehow responsible for not correcting the address during the proceedings.
We reject Husband's suggestion that service of process to the address provided by Husband is invalid because the address is incorrect. (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 903 (Whitehead) [respondents properly served self-represented appellants at the address of record, even though appellants had been evicted from that address by respondents; appellants had the obligation to notify the court and counsel of their proper address].) Husband personally signed the substitution of attorney form less than four inches below what he now contends is an incorrect address. Further, even though Husband knew as early as April 2014 that he had not been receiving all notices, he said nothing until August 2016.
Husband was personally served at the Bahia Vista Way address with an April 2014 order that compelled him to provide further discovery responses and set a hearing on sanctions—all based on a discovery motion that Husband says he never received. Not only did Husband fail to comply with the order or to participate in the sanctions hearing, Husband did nothing for another two years, when in August 2016 he requested an order vacating the April 2014 order.
Husband's reference to a number of family court notices that were mailed to the Bahia Way address and returned to the court is irrelevant. First, the notices were all of family resolution conferences and have nothing to do with the Judgment or the three FOAHs. Second, the court's service of these notices was proper, since Bahia Way was the address that Husband told the court to use. (See Whitehead, supra, 163 Cal.App.4th at p. 903.)
1. April 25, 2014 Findings and Order After Hearing (April 2014 FOAH)
In March 2014, Wife filed a request for orders (1) to compel Husband to provide further responses and documents following Wife's demand for production of documents, and (2) for related sanctions (RFO to Compel Discovery). The evidence in support of the RFO to Compel Discovery disclosed the following facts: In September 2013, Wife served Husband with a demand for production of documents; Husband responded, but "not fully or at all"; Wife sent Husband two letters concerning these deficiencies; Husband failed to meet and confer; and Wife anticipated incurring at least $5,000 in attorney fees related to the RFO to Compel Discovery.
With ample notice of the hearing, Wife served Husband with the RFO to Compel Discovery and all supporting documentation by mail at the Bahia Way address. The record on appeal contains no opposition.
Following the hearing, the family court granted Wife's RFO to Compel Discovery, and in April 2014, the court filed findings and an order after hearing (April 2014 FOAH). In the April 2014 FOAH, the court ordered Husband to provide discovery by May 30, 2014, and continued the hearing on Wife's request for sanctions until a specified date in late June so that the court could monitor Husband's compliance with the production of discovery due in May.
With more than four weeks' notice of the deadline for the discovery responses and almost eight weeks' notice of the hearing on sanctions, Wife personally served Husband with the April 2014 FOAH.
2. June 27, 2014 Findings and Order After Hearing (June 2014 FOAH)
The record does not contain any pleadings filed after the April 2014 FOAH and before the June 2014 continued hearing on Wife's request for sanctions in her RFO to Compel Discovery.
After the continued hearing in June 2014, the family court filed findings and an order after hearing on Wife's RFO to Compel Discovery (June 2014 FOAH). The court sanctioned Husband $5,000 pursuant to sections 2023.030 and 2031.310, impliedly finding that Husband misused the discovery process and unsuccessfully opposed Wife's RFO to Compel Discovery.
Section 2023.030, subdivision (a) provides that the superior court "may impose a monetary sanction" based on a party's "misuse of the discovery process." Section 2031.310, subdivision (h) provides that the superior court "shall impose a monetary sanction" on a party who "unsuccessfully . . . opposes a motion to compel further response to a demand [for inspection of documents]."
In July 2014, Wife served Husband with a conformed copy of the June 2014 FOAH by mail at the Bahia Vista Way address.
3. March 6, 2015 Findings and Order After Hearing (March 2015 FOAH)
In December 2014, Wife filed a request for orders (1) to impose terminating sanctions striking Husband's response to the petition and rendering a default judgment against Husband; and (2) for monetary sanctions (RFO for Terminating Sanctions). The evidence in support of the RFO for Terminating Sanctions disclosed the following facts: In September 2013, Wife served Husband's former counsel with a demand for inspection of documents; in March 2014, Wife filed the RFO to Compel Discovery based on Husband's failure to respond sufficiently to the inspection demand; in the April 2014 FOAH, the family court ordered Husband to provide all responsive documents by May 30, 2014, and continued the hearing on sanctions until the end of June 2014; at the end of April 2014, Wife personally served Husband with a copy of the April 2014 FOAH; Husband "failed and refused to follow the [April 2014 FOAH] and provided no documents as ordered"; in the June 2014 FOAH, the family court ordered Husband to pay $5,000 in sanctions; having made no payments, Husband did not comply, either in part or in full, with the June 2014 FOAH; and Wife anticipated incurring at least $5,000 in attorney fees related to the RFO for Terminating Sanctions.
With more than seven weeks' notice of the hearing, Wife served Husband with the RFO for Terminating Sanctions and all supporting documentation by mail at the Bahia Vista Way address. The record does not contain a response from Husband.
The record contains no evidence that the RFO for Terminating Sanctions was returned to Wife's counsel's office. Significantly, Husband does not deny having received it.
At the February 2015 hearing on Wife's RFO for Terminating Sanctions, the family court granted the request in part, striking Husband's response to Wife's petition and allowing Wife to proceed by way of default. Following the hearing, Wife served Husband by mail at the Bahia Vista Way address with both (1) proposed findings and an order after hearing, and (2) a request to enter Husband's default.
The minute order does not reflect, and the parties do not tell us, whether the family court ruled on Wife's request for monetary sanctions contained in her RFO for Terminating Sanctions.
Again, the record contains no evidence that these documents were returned to Wife's counsel; nor does Husband deny having received them.
In March 2015, the family court filed findings and an order after hearing on Wife's RFO for Terminating Sanctions (March 2015 FOAH). Consistent with the court's minutes from the hearing, the March 2015 FOAH granted Wife's request for terminating sanctions against Husband by striking Husband's response and authorizing Wife to take Husband's default.
In March 2015, based on Wife's request (that Wife had served on Husband at the Bahia Vista Way address three weeks earlier), the clerk entered Husband's default on Wife's petition.
4. Husband's August 2016 RFO to Vacate/Dismiss
As part of his RFO to Vacate/Dismiss, Husband sought relief not only related to the Judgment (see pt. I.A., ante), but also related to the April 2014 FOAH, the June 2014 FOAH, and the March 2015 FOAH (together, the three FOAHs). In this latter regard, Husband requested an order vacating each of the three FOAHs. Husband contended that, in the event the court did not vacate the Judgment and dismiss the dissolution action (as Husband had requested earlier in his RFO to Vacate/Dismiss), the court should vacate the three FOAHs on either of the following two grounds: (1) Wife did not comply with Family Code section 218 in conducting the post-Judgment discovery that preceded and formed the bases of the requests for orders that resulted in the three FOAHs; or (2) because of "improper purported service by mail" of certain documents on Husband at the Bahia Way address.
Family Code section 218 provides: "With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court. . . ."
Wife opposed Husband's RFO to Vacate/Dismiss, filing points and authorities and a responsive declaration.
Following the hearing, as part of the April 2017 FOAH denying Husband's RFO to Vacate/Dismiss, the family court denied that portion of the request in which Husband sought an order vacating the three FOAHs. More specifically, the court ruled that: (1) with regard to the March 2015 FOAH, Husband was properly served with Wife's RFO for Terminating Sanctions; and (2) with regard to the April 2014 FOAH and the June 2014 FOAH, Husband's RFO to Vacate/Dismiss was untimely.
II.
DISCUSSION
Husband timely appealed from the April 2017 FOAH. We have jurisdiction pursuant to section 904.1, subdivision (a)(2).
The April 2017 FOAH is presumed correct, and Husband (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822 (Marriage of Falcone).) " '[W]e review the correctness of the order, and not the court's reasons.' " (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 392; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981 [even where trial court's legal reasoning is erroneous, the ruling will be affirmed if it can be supported by any legal theory]; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [an appealed order will be affirmed if correct on any legal theory].) The rationale for this rule is that there can be no prejudice from an error in logic or reasoning if the decision itself is correct. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)
In this appeal, Husband argues that the family court erred in failing to vacate the Judgment, dismiss the dissolution action, and set aside the three FOAHs. We review for an abuse of discretion the family court's decision to deny a request to vacate an order or judgment. (In re Marriage of Eben-King and King (2000) 80 Cal.App.4th 92, 118 [motion to vacate a stipulated agreement and resulting judgment]; Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020 (Pittman) [decision whether to set aside a void order].) For the reasons that follow, Husband did not meet his burden of establishing reversible error. A. The Family Court Did Not Err in Denying Husband's 2016 Request for Orders Vacating the 1997 Judgment and Dismissing the 1992 Dissolution Action
Husband argues that the family court erred in not vacating the Judgment because it is void on each of the following three grounds: (1) the Judgment was entered after the mandatory dismissal of the action required by sections 583.310 and 583.360, subdivision (a); (2) the attorney who signed the stipulation for judgment on behalf of Wife signed it more than five years after the mandatory dismissal date required by sections 583.310 and 583.360, subdivision (a); and (3) the stipulation for judgment was signed only by the parties' attorneys, not by the parties themselves, in violation of Family Code section 2336 and rule 5.411(a). We disagree for the reasons explained at part II.A.,1, post.
Family Code section 2336, subdivision (a) currently provides that, if the parties are not present in court to provide "proof of the grounds alleged" for dissolution of the marriage, the court shall require "proof . . . by affidavit." Rule 5.411(a) currently provides that a stipulated judgment may be submitted to the court if, beneath the stipulated terms and above the signatures of counsel, the petitioner and respondent each personally sign a notation that the signatory agrees to the terms. However, neither that statute nor that rule were in effect at the time the parties submitted the stipulation to the family court in 1997. Family Code section 2336 became effective January 1, 1999 (Stats. 1998, ch. 581, § 13), and rule 5.411 became effective January 1, 2013. Nonetheless, because another statute and another rule of court that were in effect at the relevant time contained similar requirements (see Stats. 1996, ch. 810, § 2 (which preceded current Fam. Code, § 2336); former rule 1223 (eff. Jan 1, 1972) (which preceded current rule 5.411)), we will proceed as if Husband had cited the applicable authorities in support of his argument.
We review de novo the family court's decision whether a judgment is void. (Pittman, supra, 20 Cal.App.5th at p. 1020.)
In addition, Husband contends that the family court erred in not dismissing the entire dissolution action under the mandatory requirements of sections 583.310 and 583.360, subdivision (a), because the case had not been brought to trial within five years of the October 1992 commencement of the action—as evidenced by the filing of the Judgment in November 1997. We disagree for the reasons explained at part II.A.2., post.
We review de novo the family court's denial of a motion to dismiss for failure to bring an action to trial within the five-year period provided by section 583.310, since our decision is based on statutory interpretation. (Munoz v. City of Tracy (2015) 238 Cal.App.4th 354, 358.)
1. The Family Court Did Not Err in Denying Husband's Request to Vacate the Judgment
The underlying premise of Husband's appeal from that portion of the April 2017 FOAH denying Husband's requests to vacate the Judgment and to dismiss the dissolution action is that the Judgment is void—on each of the three grounds set forth above. As we explain, Husband is wrong. Even if each of the three alleged errors can be proven, the Judgment would not be void.
"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 (Marriage of Goddard), italics added.) When a court lacks jurisdiction in a fundamental sense, any resulting judgment is void and subject to " 'direct or collateral attack at any time.' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) Once a court has established its power to hear a case, however, the errors it may make with respect to areas of procedure, pleading, evidence, and substantive law do not result in a void judgment. (Marriage of Goddard, supra, 33 Cal.4th at p. 56.)
For example, contrary to Husband's position in the briefing, we are unaware of any authority that suggests a Judgment issued in an action not brought to trial within five years of its commencement in violation of section 583.310 is void, as opposed to merely voidable.
As one respected treatise describes this distinction: "Where . . . the judgment is not void on its face . . . and the defect consists only of an act in excess of the court's jurisdiction (rather than a complete absence of subject matter or personal jurisdiction), it is valid until set aside"; i.e., it is voidable, not void. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 16:195b, p. 16-70; accord, In re Marriage of Mansell (1989) 217 Cal.App.3d 219, 229-230.) In this context, a judgment is "void on its face" only where its invalidity is apparent upon inspection of the judgment roll or court record—i.e., where the defect is apparent without relying on extrinsic evidence. (Hogoboom & King, at ¶ 16:195b, p. 16-70; accord, Pittman, supra, 20 Cal.App.5th at p. 1021.)
In 1992 when Wife filed her petition for dissolution of marriage, the superior court had subject matter jurisdiction "concerning the status of marriage" and related issues of child custody, support, property rights, attorney fees and costs. (Former Civ. Code, § 4351; Stats. 1983, ch. 1159, § 1.) The court also had personal jurisdiction over both parties, since Wife filed the action in October 1992, and Husband appeared in the action by filing his response to the petition in December 1992. Indeed, at oral argument, Husband's counsel acknowledged for the first time (and contrary to Husband's briefing in the trial court and on appeal) that the Judgment was not void, but at best voidable.
On this record, therefore, because the superior court had jurisdiction over both the subject matter (i.e., the dissolution of the parties' marriage) and the parties (Wife and Husband), the Judgment filed November 20, 1997, is not void.
Although a request to vacate a void judgment can be made at any time (§ 473, subd. (d); Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181), the rule is not the same for judgments that are merely voidable. An aggrieved party's request for relief from a voidable judgment must be raised in a timely motion to vacate the judgment or in a timely appeal from the judgment. At the very latest under either procedure, in November 1997 when the Judgment was entered, an aggrieved party was required to seek relief from a judgment within 180 days of entry of the judgment. (Former § 663a, subd. (2) [motion to vacate]; Stats. 1983, ch. 302, § 1 (eff. Jan. 1, 1984) [motion to vacate]; Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1393, fn. 4 [motion to vacate]; former rule 2(a) (eff. Jan. 1, 1995 [appeal]; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [appeal].) After the expiration of the applicable appeal period, "the lower court judgment is final and res judicata" (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 16:370, p. 16-124; see Van Beurden Ins. Services, Inc., at p. 56) ["once the deadline expires, the appellate court has no power to entertain the appeal"].) Thus, in this case, the latest possible date to seek to vacate or to appeal from the Judgment expired in May 1998—i.e., 180 days after entry of the Judgment in November 1997.
These are the authorities in effect at the time the Judgment was entered in November 1997. The 180-day deadline has not changed. (See § 663a, subd. (a) [motion to vacate]; Howard v. Lufkin (1988) 206 Cal.App.3d 297, 303, fn. 5 [motion to vacate]; rule 8.104(a)(1)(C) [appeal]; In re Marriage of Lin (2014) 225 Cal.App.4th 471, 475-476 [appeal].)
Since the Judgment is not void and since the time had expired to vacate the Judgment on the three grounds raised by Husband in these proceedings, the trial court did not err in denying that part of Husband's RFO to Vacate/Dismiss in which he requested an order vacating the Judgment.
Not having reached Husband's three arguments on which to vacate the Judgment, we express no opinion on their merits.
2. The Family Court Did Not Err in Denying Husband's Request to Dismiss the Action
We are satisfied that, as the parties assumed but did not discuss, the mandatory dismissal provisions of sections 583.310 through 583.360 apply to a dissolution of marriage action not brought to trial within five years of the filing of the petition. (§ 583.120 [§§ 583.110 through 583.430 "appl[y] to a civil action"]; In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372, 1375-1376.) We are also satisfied that an uncontested proceeding from which a judgment of dissolution of marriage is entered qualifies as a "trial" on the issue of status of the marriage for purposes of the five-year deadline by which an action must be brought to trial. (Marriage of Dunmore, at pp. 1379-1380.)
Although the Judgment was not filed within five years of Wife's petition, on two independent grounds we conclude that the family court properly denied Husband's request to dismiss the action in 2017, almost 25 years after the filing of the action and 20 years after entry of the Judgment.
We requested from the parties, and received from Husband, supplemental briefing on these issues. (See Gov. Code, § 68081.) In Husband's letter brief, counsel objected to the court's sua sponte augmentation of the record to include the July 1993 Support Order. (See fn. 1, ante.) We overrule this objection. Contrary to the implication in counsel's letter, we are not limited to the selective appendix provided by an appellant's attorney; to the contrary, rule 8.155 expressly authorizes the procedure we employed.
We begin with the understanding that, at all times after entry of the Judgment in November 1997, the family court was precluded from dismissing the action for failure to bring it to trial within five years, as otherwise required under section 583.360, subdivision (a). That is because at all times after entry of the Judgment in November 1997, section 583.161 has provided that a petition for dissolution of marriage may not be dismissed under 583.360 if the issue of the status of the marriage has been bifurcated and a separate trial on the issue has been conducted. (§ 583.161, subd. (d)(1) (Stats. 2013, ch. 40, § 1); former § 583.161, subd. (c) (Stats. 1994, ch. 1269, § 3).) Here, because the parties' November 1997 stipulation for bifurcation of status and entry of a judgment of dissolution of marriage and the court's November 1997 Judgment satisfy these requirements, at all times after entry of the Judgment in November 1997, the applicable subdivision of section 583.161 precluded dismissal of the action.
As we explain at parts II.A.2.a. & b., post, on three distinct bases, other statutes precluded the dismissal of the dissolution action prior to entry of the Judgment in November 1997.
a. After the July 1993 Support Order and Before the November 1997 Judgment, Section 583.161 Precluded Dismissal of the Action
Prior to entry of the Judgment, former section 583.161—i.e., the statute in effect during the relevant time period (Stats. 1994, ch. 1269, § 3)—also precluded a section 583.360 dismissal of Wife's petition for dissolution of marriage.
Wife filed her petition for dissolution of marriage on October 8, 1992. Less than a year later, the family court filed its July 1993 Support Order, by which the court ordered Husband to pay Wife "family support"—which is a combination of child and spousal support (Fam. Code, § 92). Thus, an order for both child support and for spousal support was valid and in full effect as of the date the action had been pending for five years (Oct. 8, 1997) through at least the date on which the court bifurcated the issue of status, conducted a separate trial on the issue, and entered a judgment of dissolution of the marriage (Nov. 20, 1997).
Former section 583.161 provided that a petition for dissolution of marriage could not be dismissed under section 583.360 (for failure to bring the action to trial within five years under § 583.310) if either: "An order for child support has been issued in connection with the proceeding" and has not been terminated (former § 583.161, subd. (a)); or "An order for spousal support has been issued in connection with the proceeding" and has not been terminated (former § 583.161, subd. (b)). (Stats. 1994, ch. 1269, § 3.) Each of these two conditions existed in the present case at all times that Husband could have sought a dismissal of the action—i.e., at all times (1) after October 1997, by which time the action had been pending for five years, and (2) before entry of the Judgment.
For the foregoing reasons, between the date five years after the commencement of the action (Oct. 8, 1997) and the date of entry of the judgment (Nov. 20, 1997), former section 583.161, subdivision (a) and subdivision (b) each precluded a dismissal for failure to bring the action to trial within five years under sections 583.310 and 583.360, subdivision (a).
In his supplemental letter brief and at oral argument, Husband emphasized that, by the time the family court ruled on Husband's RFO to Dismiss/Vacate in 2016, the parties' child had reached the age of majority, thereby terminating any child support order. Thus, according to Husband, once the order for child support had been terminated, the family court should have vacated the Judgment on the basis that the parties did not personally sign the stipulation for entry of judgment. For at least two reasons, Husband's argument fails. Procedurally, as we explained at part II.A.1., ante, because the Judgment is not void, Husband's August 2016 challenge to the November 1997 Judgment is untimely. Substantively, as we explained in the introduction to part II.A.2., ante, a petition for dissolution of marriage may not be dismissed under 583.360 where, as here, the issue of the status of the marriage has been bifurcated and a separate trial on the issue has been conducted. (§ 583.161, subd. (d)(1) (Stats. 2013, ch. 40, § 1); former § 583.161, subd. (c) (Stats. 1994, ch. 1269, § 3).)
b. After Husband's December 1992 Response to the Petition and Before the November 1997 Judgment, Section 583.110 Et Seq. Precluded Dismissal of the Action
In addition to and independent of the analysis based on the July 1993 Support Order, prior to entry of the Judgment, the family court was also precluded from dismissing the dissolution action under section 583.110 et seq. based on Husband's affirmative request to dissolve the marriage in his December 1992 response to Wife's petition.
Under section 583.310, an action must be brought to trial within five years after its commencement against a defendant. By statutory definition, "action" includes a cross-complaint (§ 583.110, subd. (a)), and "defendant" includes a cross-defendant (§ 583.110, subd. (d)). Under former section 583, the predecessor to section 583.310, for purposes of a dismissal for failure to prosecute, "actions by a plaintiff are treated as wholly separate from cross-actions brought by the defendant." (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 93.) Accordingly—as and particularly applicable here—"a cross-complaint is not subject to mandatory dismissal under [former] section 583 until the lapse of five years from the filing of the cross-complaint." (Tomales Bay Oyster Corp. v. Superior Court (1950) 35 Cal.2d 389, 393.)
Although we have found no case applying this cross-complaint ruling in a dissolution of marriage proceeding, we find dictum from In re Marriage of Dover (1971) 15 Cal.App.3d 675 (Marriage of Dover) persuasive and apply it here. Marriage of Dover involved former section 581, subdivision (1), which provided that a plaintiff may dismiss an action upon written request "at any time before the actual commencement of trial, . . . provided, that a counter claim has not been set up, or affirmative relief sought by the cross-complainant or answer of the defendant." (Marriage of Dover, at p. 677, fn. 2.)
Section 581, subdivision (b)(1) currently provides that a plaintiff may dismiss an action upon written request "at any time before the actual commencement of trial, upon payment of the costs, if any." Sections 581 and 583.310 through 583.360 are both found in Title 8 of the Code of Civil Procedure ("Judgment in General").
In Marriage of Dover, the court recognized that, although there is no such thing as a cross-complaint in a proceeding for dissolution of marriage, "[t]he controlling factor in determining whether a plaintiff has the right to dismiss under [former section 581, subdivision (1)] has been held to be whether the other party has requested affirmative relief, regardless of the form of the pleading." (Marriage of Dover, supra, 15 Cal.App.3d at p. 679, fn. 4.) In the case of a dissolution of marriage, the court reasoned, where the response to the petition seeks affirmative relief, the response must be treated as a cross-complaint of the defendant. (Ibid.; accord, In re Marriage of Tamraz (1994) 24 Cal.App.4th 1740, 1747 (Marriage of Tamraz) [a response in a family law action is treated as a cross-complaint for purposes of § 581, subd. (i)].)
The Marriage of Dover court also relied on former rule 1206 (entitled "General Law Applicable"; eff. Jan. 1, 1994), which specified that "provisions of law apply regardless of nomenclature if they would otherwise apply under the Family Law rules." (Marriage of Dover, at p. 679, fn. 4, italics omitted.) Therefore, where a response to a petition for dissolution of marriage seeks affirmative relief, "the 'plaintiff' (petitioner) would have no right, merely because of the difference in nomenclature, to request a dismissal thereafter without the consent of the respondent." (Ibid.; accord, Marriage of Tamraz, supra, 24 Cal.App.4th at pp. 1747-1748.)
Current rule 5.2(d) (entitled "General law applicable"; eff. Jan. 1, 2013) provides that "all provisions of law applicable to civil actions generally apply to a proceeding under the Family Code if they would otherwise apply to such proceeding without reference to this rule." Rule 5.2(d) derives from former rule 5.21 (entitled "General law applicable"; eff. Jan. 1, 2003), which was adopted as former rule 1206 (see Editor's Notes following rule 5.2)—on which Marriage of Dover relied.
Here, in his response to Wife's petition, not only did Husband provide the information required for a response to a petition for dissolution of marriage, Husband also affirmatively requested a dissolution of the parties' marriage. Thus, because Husband's response sought affirmative relief, we must treat it as a "cross-complaint of the defendant" for purposes of a dismissal under sections 583.310 through 583.360. (See Marriage of Dover, supra, 15 Cal.App.3d at p. 679, fn. 4 [former § 581, subd. (1)]; Marriage of Tamraz, supra, 24 Cal.App.4th at p. 1747 [§ 581, subd. (i)].) Because the Judgment was filed within five years of Husband's affirmative request for a dissolution of the marriage in his "cross-complaint," in the language of section 583.310, Husband's cross-action was "brought to trial within five years after the [cross-]action [wa]s commenced against the [petitioner]."
For this reason, as of December 1992 when Husband filed his response to Wife's petition (through at least the filing of the November 1997 Judgment), the pendency of Husband's affirmative request for a dissolution of the parties' marriage precluded dismissal of the dissolution action. B. The Family Court Did Not Err in Denying Husband's Request for an Order Vacating Any of the Three FOAHs
Husband argues that the trial court erred in not vacating the April 2014 FOAH on three grounds: (1) Wife conducted postjudgment discovery without first obtaining leave of court, as Husband contends was required by Family Code section 218; (2) Wife did not personally serve Husband with the RFO to Compel Discovery, as Husband contends was required by Family Code section 251, subdivision (a), and People v. Greene (1887) 74 Cal. 400, 405 (Greene); and (3) even assuming that the RFO to Compel Discovery was properly filed and served by mail at an appropriate address, Wife did not timely serve the RFO. According to Husband, because of the problems associated with conducting the postjudgment discovery and the RFO to Compel Discovery, all of the court orders that followed—i.e., the Three FOAHs—must be vacated.
We begin our discussion with the understanding that, as we have explained, unless an appealable order is void, an aggrieved party must appeal in no event more than 180 days after its entry or it is final and not subject to collateral attack. (See pt. II.A.1., ante, citing § 663a, subd. (a) [motion to vacate, if applicable]; rule 8.104(a)(1)(C) [appeal, if applicable]; and related cases.) Thus, unless Husband can establish that the FOAH at issue is void—and, indeed, in his RFO to Vacate/Dismiss, Husband argued that the family court lacked jurisdiction to enter each of the Three FOAHs—then Husband's RFO to Vacate/Dismiss is necessarily untimely.
As we explain, none of Husband's arguments is persuasive, because Husband has not established that any of the Three FOAHs is void.
1. Family Code Section 218 Does Not Apply
Section 218 requires that a motion or request for order be filed and served before commencement of postjudgment discovery. (See fn. 9, ante.), Husband argues that, because Wife did not comply with this requirement, she was not entitled to relief based on Husband's failure to fully and completely respond to the discovery requests.
Husband's reliance on Family Code section 218 is misplaced. The statute did not become effective until January 1, 2015—more than 15 months after Wife served the discovery requests at issue. (Stats. 2014, ch. 169, § 1.)
2. Wife Was Not Required to Personally Serve Husband with the RFO to Compel Discovery
Husband argues that, because Wife did not personally serve Husband with her RFO to Compel Discovery, the resulting April 2014 FOAH is void. In support of his position, he relies on Family Code section 215, subdivision (a), which provides in relevant part: "Except as provided in subdivision . . . (c), after entry of a judgment of dissolution of marriage, . . . no subsequent order in the proceedings[] 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. . . ." Family Code section 215, subdivision (a) has been held to result in a void order where notice of a postjudgment proceeding in family court is not served in a specific manner. (See In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1130 [notice of a postjudgment custody proceeding not served properly under Fam. Code, § 215, subd. (a), results in an order that is "void on its face and subject to collateral attack"].)
However, Husband's reliance on subdivision (a) is misplaced in the present case, because subdivision (c) provides that subdivision (a) "does not apply if the court has ordered an issue or issues bifurcated for separate trial in advance of the disposition of the entire case." (Fam. Code, § 215, italics added.) Here, of course, the prohibition contained in subdivision (c) applies (directing that subd. (a) does not apply), because the family court ordered the issue of status bifurcated and tried, resulting in the November 1997 Judgment, prior to hearing the remaining issues in the case.
Under such circumstances—i.e., where a bifurcated status judgment has been entered—Family Code section 215, subdivision (c) further directs that "service of a motion on any outstanding matter shall be served . . . upon the parties, if unrepresented" and "if there has been no pleading filed in the action for a period of six months after the entry of the bifurcated judgment, service shall be upon . . . the party, at the party's last known address . . . ." Thus, when subdivision (c) is read in conjunction with subdivision (a), Wife's service of the RFO to Compel Discovery by mail at the Bahia Way address—i.e., Husband's last known address based on the notice he gave—complied with Family Code section 215.
In any event, even without consideration of subdivision (c), Family Code section 215, subdivision (a) did not require personal service of the RFO to Compel Discovery here. Contrary to Husband's argument, service on a party under Family Code section 215 does not require service in the same manner required for initial service of process. Since the court already had jurisdiction over the subject matter and the parties here (see pt. II.A.1., ante), subdivision (a) of Family Code section 215 allowed service "in the same manner as the notice is otherwise permitted by law to be served." For a notice of motion, section 1010 et seq. authorize service by mail at the opposing party's last known address. (Parker v. Parker (1974) 43 Cal.App.3d 610, 613.) As in Parker, the issue here "[i]s not one of jurisdiction but . . . one of proper notice" (ibid.); and Wife's mail service of notice of the RFO to Compel Discovery to Husband's last known address (that he provided) was proper under Family Code section 215.
In support of his position, Husband relies on Greene, supra, 74 Cal. 400, 405. In Greene, however, the process being served was a summons and complaint, the defendants had not appeared in the action, and there was no adequate proof of any service—personal or by publication—of the summons and complaint on the defendants. (Id. at pp. 401-402.) In contrast, here we have a postjudgment proceeding in which the court had already exercised personal jurisdiction over the opposing party (Husband).
3. Husband's Arguments Regarding the Timeliness and Location of Wife's Service of the Notice of the RFO to Compel Discovery, Even if Credited, Did Not Result in a Void Order
Husband's final argument is that, because Wife did not timely serve Husband with notice of her RFO to Compel Discovery and because Wife served Husband at the "nonexistent" Bahia Way address, the resulting April 2014 FOAH is void. Even if we assume that the notice was untimely and that the Bahia Way address is nonexistent, such facts do not result in a void order. As we explained at part II.A.1., ante, because the family court had subject matter and personal jurisdiction, at best the April 2014 FOAH was voidable, and accordingly, at the very latest Husband was required to have sought relief in October 2014—i.e., within 180 days of its entry. (§ 663a, subd. (a) [motion to vacate, if applicable]; rule 8.104(a)(1)(C) [appeal, if applicable]). Thus, Husband's August 2016 RFO to Vacate/Terminate was untimely with respect to the April 2014 FOAH.
Husband cannot complain about these deadlines, since Wife personally served Husband with the April 2014 FOAH on April 30, 2014, which gave Husband more than sufficient notice of the ruling and time to seek relief, if necessary, under any of the deadlines by which to file a motion to vacate (see § 663a) or to notice an appeal (see rule 8.104(a)(1)).
4. Husband Raises No Additional Arguments as to the June 2014 FOAH or the March 2015 FOAH
Husband argues that, because the June 2014 FOAH and the March 2015 FOAH resulted from the void April 2014 FOAH that followed the improperly filed and served RFO to Compel Discovery, the June 2014 FOAH and March 2015 FOAH are also void.
One of Husband's themes is that, because of the issues associated with the service of Wife's RFO to Compel Discovery, Husband has been denied due process in all of the postjudgment proceedings that ultimately resulted in the entry of the March 2015 FOAH striking Husband's response and authorizing entry of Husband's default. We disagree.
"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' . . . It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' " (Fuentes v. Shevin (1972) 407 U.S. 67, 80.) Here, Wife fully complied with all procedural due process requirements surrounding her RFO to Compel Discovery. To the extent Husband believes that, despite Wife's compliance, he did not receive notice and an opportunity to be heard, he has only himself—not Wife, not Wife's counsel, not the family court—to blame.
However, because Husband did not establish the predicate for his argument—i.e., Husband did not establish that the April 2014 FOAH was void—the conclusion does not follow. Accordingly, Husband did not meet his burden of establishing that the trial court erred in denying Husband's RFO to Vacate/Dismiss as to the June 2014 FOAH or the March 2015 FOAH.
DISPOSITION
The April 2017 FOAH is affirmed. Wife is entitled to her costs on appeal. (Rule 8.278(a)(2).)
IRION, J. WE CONCUR: McCONNELL, P. J. AARON, J.