Opinion
G059695 G059894
01-31-2022
In re Marriage of YOUNG AH KWON and BYUNG SEON PARK. YOUNG AH KWON, Respondent, v. BYUNG SEON PARK, Appellant.
John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Office of Sunmin Lee and Sunmin Lee for Appellant. Duncan David Lee, Gary M. Schumacher and Duncan D. Lee for Respondent.
NOT TO BE PUBLISHED
Appeals from orders of the Superior Court of Orange County 17D005184, Andre De La Cruz, Judge. Affirmed.
John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Office of Sunmin Lee and Sunmin Lee for Appellant.
Duncan David Lee, Gary M. Schumacher and Duncan D. Lee for Respondent.
OPINION
FYBEL, J.
Introduction
This is the second appeal arising from the dissolution of the marriage of Young Ah Kwon (Kwon) and Byung Seon Park (Park). In this appeal, Park challenges the order denying his motion to set aside the default judgment entered against him, and the order awarding Kwon her attorney fees and costs incurred in the first appeal. As to both, we affirm.
Park contends that the trial court lacked subject matter jurisdiction over the dissolution petition because neither party was domiciled in California when the petition was filed. Domicile creates in rem jurisdiction over the parties' marriage; it does not affect the court's subject matter jurisdiction, and the failure to timely argue a lack of domicile waives the right to challenge it. Park did not challenge the alleged lack of domicile within the time period specified in the California Rules of Court, and the trial court properly determined Park had waived the issue.
Park's challenge to the attorney fees award arises from the same claim that the trial court lacked jurisdiction over the matter. Therefore, we also reject his challenge to that order.
Statement of Facts and Procedural History
Pursuant to this court's order of November 12, 2021, to which no objection was filed, this court has taken judicial notice of the appellate record in appeal No. G057226.
Kwon and Park were married in 1996. Kwon filed a petition for dissolution of the marriage on June 21, 2017, in the Orange County Superior Court. The trial court entered Park's default on June 6, 2018. Park's motion to quash service of summons due to an alleged lack of personal service and to stay or dismiss based on forum non conveniens was denied by the trial court because Park's default had been entered before the motion was filed. The trial court also denied Park's motion for relief from default, which had also alleged lack of personal service.
In November 2018, the trial court entered a default judgment of dissolution. Park appealed from the judgment, and this court affirmed. (In re Marriage of Young Ah Kwon (Apr. 24, 2020, G057226) [nonpub. opn.].) After the issuance of the remittitur, Kwon filed a motion in the trial court to recover her attorney fees and costs on appeal. The trial court granted the motion and ordered Park to pay $33,925 in Kwon's attorney fees and $1,075 in costs. Park appealed from the attorney fees order (appeal No. G059695).
In September 2020, Park filed a motion to vacate or set aside the default judgment on the ground that, inter alia, the default judgment was void because neither party was domiciled in California when the petition was filed. The trial court denied the motion, and Park appealed (appeal No. G059894). This court consolidated appeal No. G059695 with appeal No. G059894.
The motion also requested that the default judgment be vacated or set aside because the judgment's property division and child support order exceeded the scope of relief requested in Kwon's petition. Park does not pursue this argument on appeal.
Discussion
I.
Motion to Vacate Default Judgment
A. Standard of Review and Relevant Statutes and Rules of Court
We review the trial court's order denying the motion to vacate the default judgment for abuse of discretion. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
At least one of the parties to the marriage must have been domiciled in California for six months before the dissolution petition is filed for the courts of this state to have jurisdiction over the parties' status: "[A] judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition." (Fam. Code, § 2320, subd. (a).)
Any challenge to the required California domicile of at least one of the parties must be raised at the initiation of the matter or the issue will be waived. "Within the time permitted to file a response, the respondent may move to quash the proceeding, in whole or in part, for any of the following reasons: [¶] . . . [¶] (3) Failure to meet the residence requirement of Family Code section 2320." (Cal. Rules of Court, rule 5.63(b)(3).) "The parties are deemed to have waived the grounds set forth in (b) if they do not file a request for order to quash within the time frame set forth." (Rule 5.63(e).) Therefore, the issue of whether domicile has been established may be waived by failing to timely object to the evidence of domicile in the dissolution petition. (Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 726 (Zaragoza) [considering predecessor of rule 5.63].)
Further references to rules are to the California Rules of Court.
The trial court's minute order denying Park's motion to vacate default judgment reads as follows: "[Park]'s Motion to Set Aside/Vacate Default Judgment based on lack of Subject Matter Jurisdiction is denied. [Park]'s contention that the judgment is void for lack of domicile is untimely and deemed waived. [Park] raised the domiciliary issue for the first time before the District Court of Appeal[], who deemed it waived. The District Court of Appeal[] did not address the merits of the domiciliary issue based on, in part, the case of Zaragoza. This Court further deems it waived since [Park] already had his opportunity before this Court and declines to readdress the issue." (Italics added.)
In re Marriage of Young Ah Kwon, supra, G057226, this court's unpublished opinion, made the following determinations: (1) the issue of whether domicile has been established may be waived; (2) Park raised the issue of domicile for the first time on appeal; (3) failure to raise an issue in the trial court generally forfeits the claim on appeal; and (4) the issue of waiver is fact-specific, and therefore cannot come within the exception to the forfeiture rule that permits an appellate court to consider an issue of law based on undisputed facts for the first time on appeal.
B. The Issue of Domicile Is Not an Issue of Subject Matter Jurisdiction
A significant portion of Park's briefing on appeal addresses the parties' inability to waive a lack of subject matter jurisdiction, and argues that because neither Kwon nor Park was domiciled in California at the time the petition was filed, the trial court lacked jurisdiction over the parties and their dissolution proceeding.
Park's analysis is incorrect. It is true that at least one of the parties must be domiciled in California for the courts of this state to have jurisdiction over their dissolution proceeding. (Whealton v. Whealton (1967) 67 Cal.2d 656, 659; Crouch v. Crouch (1946) 28 Cal.2d 243, 249.) The parties' domicile gives the court in rem jurisdiction over the marriage to be dissolved. "Dissolution is an in rem proceeding, in which marriage is the res that is adjudicated." (In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1444; see Zaragoza, supra, 49 Cal.App.4th at p. 724; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2021) ¶ 3:65, p. 3-37.)
But the in rem jurisdiction conferred on the court through domicile is not the same as subject matter jurisdiction. Unlike subject matter jurisdiction, its absence may be waived. "In rem jurisdiction is not of subject matter jurisdiction dimension; i.e., the court is 'competent' to adjudicate marriage dissolution issues pursuant to the authority conferred by Fam.C. §2010 notwithstanding defective in rem jurisdiction. [Citation.] [¶] More accurately, the 'concept of "res" as jurisdictional is tied to the concept of personal jurisdiction'; and, like personal jurisdiction, is waived unless the challenge is timely raised in the action . . . ." (Hogoboom & King, supra, ¶ 3:65.1, p. 3- 38; citing Zaragoza, supra, 49 Cal.App.4th at pp. 725-726.) Rule 5.63(e) specifically provides that the failure to timely request an order to quash waives any challenge to the "failure to meet the residence requirement of Family Code section 2320." Unlike subject matter jurisdiction, the parties to a dissolution proceeding may waive the lack of domicile within the state of California for the required period of time.
Park also challenges the trial court's ruling by attacking the case on which the trial court relied-Zaragoza, supra, 49 Cal.App.4th 720. None of Park's attacks on that opinion holds weight. In Zaragoza, the wife filed a petition for dissolution of marriage and both parties participated in discovery and pretrial matters. (Id. at p. 722.) During the trial, the husband's counsel moved into evidence a copy of the parties' judgment of divorce from Nevada. (Ibid.) The California trial court continued the trial, and ultimately concluded it did not have jurisdiction over the property and debt issues in the California dissolution matter because the Nevada judgment was entitled to full faith and credit. (Id. at pp. 723-724.)
The appellate court issued a writ of mandate to the trial court to set aside its order and continue with the trial. (Zaragoza, supra, 49 Cal.App.4th at p. 727.) The appellate court based its holding on former rule 1230 (the precursor of current rule 5.63), which provided: "'(a) Within the time permitted to file a response, the respondent may move to quash the proceeding, in whole or in part, for any of the following: [¶] . . . [¶] (2) That there is a prior judgment or another action pending between the same parties for the same cause. [¶] . . . [¶] A party waives the matters set forth above if they are not raised by filing a motion to quash pursuant to this rule within the time permitted to file a response.'" (Zaragoza, supra, 49 Cal.App.4th at p. 724.) The husband argued that "a valid marriage is a jurisdictional foundation for a dissolution proceeding and that lack of jurisdiction can be raised at any time in the proceeding." (Ibid.)
The appellate court concluded that the lack of a valid marriage did not prevent the trial court from exercising jurisdiction over the dissolution of the marriage. Because the concept of jurisdiction over the res of the marriage was similar to the court's exercise of personal jurisdiction, the court concluded that a challenge to the existence of that res could be waived, just as the lack of proper service may be waived: "A party may waive the defect of proper service by making a general appearance in an action without challenging jurisdiction. [Citations.] There is no reason that challenge to the existence of the 'res' cannot also be waived, as provided for in [former] rule 1230." (Zaragoza, supra, 49 Cal.App.4th at p. 725.) Unlike Park, we do not read this statement as providing that the defect may only be waived by making a general appearance, although making a general appearance without raising the issue obviously constitutes a waiver under former rule 1230.
The cases cited by Park in support of this argument do not assist him. In Andrews v. Andrews (1903) 188 U.S. 14, the question before the Supreme Court was whether a Massachusetts statute was in conflict with the United States Constitution's full faith and credit clause because the statute would not recognize a divorce judgment issued by another state when (1) the cause for the divorce occurred in Massachusetts and both parties to the marriage lived in Massachusetts, or (2) the cause for divorce was not authorized by Massachusetts law. (Andrews v. Andrews, supra, at p. 29.)
The language on which Park relies reads: "Although it is not essential to the question before us, which calls upon us only to determine whether the decree of divorce rendered in South Dakota was entitled to extra-territorial effect, we observe, in passing, that the statute of South Dakota made domicil, and not mere residence, the basis of divorce proceedings in that State. As without reference to the statute of South Dakota and in any event domicil in that State was essential to give jurisdiction to the courts of such State to render a decree of divorce which would have extra-territorial effect, and as the appearance of one or both of the parties to a divorce proceeding could not suffice to confer jurisdiction over the subject matter where it was wanting because of the absence of domicil within the State, we conclude that no violation of the due faith and credit clause of the Constitution of the United States arose from the action of the Supreme Judicial Court of Massachusetts in obeying the command of the state statute and refusing to give effect to the decree of divorce in question." (Andrews v. Andrews, supra, 188 U.S. at pp. 41-42, italics added.) As indicated by the italicized text, this statement by the Supreme Court is dicta. In addition, the opinion did not address whether the issue of domicile could be waived.
Park further cites Williams v. North Carolina (1945) 325 U.S. 226, for the proposition that a court's "power to grant a divorce-jurisdiction, strictly speaking-is founded on domicil." (Id. at p. 229.) But in that case, the Supreme Court also noted that even jurisdictional questions are not open ad infinitum to challenges by the parties "after appropriate opportunity to present their contentions." (Id. at p. 230.) Here, Park had the opportunity to present his contentions regarding Kwon's domicile in California, but waived that opportunity.
Park also cites Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 for the proposition that the lack of domicile by the parties deprives the court of jurisdiction over the dissolution matter and cannot be waived. Park quotes the following from Abelleira: "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. . . . A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state." (Id. at p. 288.) However, the next example of a court's absence of power to hear or determine a case is the following: "A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders" (ibid.), although, of course, failure of personal service may be waived by a party.
In this case, Kwon's petition for dissolution of her marriage to Park alleged that Kwon "has been a resident of this state for at least six months and of this county for at least three months immediately preceding the filing of this Petition." (Italics omitted.) Park had the ability to file a motion to quash within his time to respond to the petition in order to challenge Kwon's allegations of domicile. (Rule 5.63(b).) Park concedes that he had actual knowledge of this dissolution action and that he could have filed a response, but that he chose not to do so.
As we have noted, in the previous appeal, In re Marriage of Young Ah Kwon, supra, G057226, this court neither concluded that Park had waived the issue of domicile nor that Park was entitled to litigate the issue of domicile in the trial court. (The determinations made in that opinion are identified ante in footnote 4.) In addressing a separate point in the first appeal, whether the trial court erred by dividing community property that was not listed in Kwon's petition for dissolution of marriage, Kwon argued that this appellate court should not consider the issue for the first time on appeal because neither party had placed evidence relevant to this issue in the appellate record. On that point, the opinion reads: "We express no opinion on the issue, and nothing herein shall preclude Park or Kwon from litigating this issue pursuant to the previously-filed motion to vacate or set aside the judgment, or otherwise." (In re Marriage of Young Ah Kwon, supra, G057226.) In his opening brief on appeal, Park assumes that this conclusion applies to the domicile issue: "This Court did not conclude Park was precluded from doing the same with respect to his domicile argument." Had this court intended to note that neither Park nor Kwon was precluded from litigating the issue of domicile in the trial court, it could and would have said so.
Rule 5.63(e) provides that the failure to timely request an order to quash waives any challenge to residency under Family Code section 2320. (See rule 5.63(b)(3).) Park argues that this provision only applies to Family Code section 2320's six-month residency requirement, and "not the constitutional domicile requirement." Park's argument presumes that there is a difference between the residency requirement of section 2320 and domicile. Yet this directly conflicts with Park's earlier statement that the "residency requirement [of section 2320, subdivision (a)] is synonymous with 'domicile.'" (See In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13-14 [under section 2320, "residency means domicile"]; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 153 [under predecessor statute of section 2320, "residency is synonymous with domicile"].) Contrary to Park's argument, we need not read anything into or out of the rules of court in order to preserve their constitutionality.
C. Any Lack of a General Appearance by Park Is Irrelevant to the Waiver Argument
Park next argues that even if the issue of domicile could be waived, he did not waive it because he never made a general appearance in the case. The concept of a general appearance, however, is not at issue here. "'A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.'" (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) But we are concerned here with whether Park timely raised the issue of domicile, not whether service was proper (an issue which has already been decided against Park).
Rule 5.63 provides that a respondent in a dissolution of marriage matter is deemed to have waived the right to challenge the residency requirement in Family Code section 2320 if the respondent does not file a request for an order to quash the proceeding "[w]ithin the time permitted to file a response." (Rule 5.63(b).) Kwon filed the dissolution petition in June 2017. Almost a year later, the trial court entered Park's default. Although Park filed a motion to quash service and a motion for relief from default, both of which alleged the lack of proper personal service, the trial court rejected those arguments and entered a default judgment. This court affirmed the judgment. (In re Marriage of Young Ah Kwon, supra, G057226.)
Park did not file a request for an order to quash the proceeding due to the alleged lack of domicile within the time permitted to file a response. Whether Park ever made a general appearance is irrelevant to this issue. Park's time to challenge domicile expired long before he made any appearance-general or special-in this action.
The cases and statutes cited by Park do not affect our analysis. Park correctly notes that a motion to quash service or stay or dismiss an action does not constitute a general appearance. (Code Civ. Proc., § 418.10, subd. (d).) Whether the motion to set aside the default constituted a general appearance is a closer question. Park again cites Code of Civil Procedure section 418.10, which provides in relevant part: "[N]o motion . . . under Section 473 or 473.5 when joined with a motion under this section, . . ., shall be deemed a general appearance by the defendant." (Id., subd. (d), italics added.) Park's motion to set aside the default was not joined with a motion to quash or stay under section 418.10. Further, the motion to set aside was not limited to arguments regarding the lack of personal jurisdiction, and therefore constituted a general appearance. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at p. 1145; 366-386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1193.)
In his declaration in support of his motion to set aside the default, Park stated: "I concede that I had actual knowledge of this action and I do not deny the fact that I could have filed a response. [¶] . . . One of the main reasons why I did not file a response nevertheless was because [Kwon] stated she was seeking division of three properties located in California only. She further stated that she would amend the Petition when additional properties subject to division are ascertained." Thus, Park concedes that he could have timely raised the issue of domicile, but chose not to do so for tactical reasons. This also disposes of Park's related argument that he could not have raised a challenge to Kwon's domicile in his motion for relief from default or from default judgment. Had Park challenged service of the summons and complaint before default was entered, he could then have challenged domicile within the time to respond to the petition. His voluntary decision to allow his default to be taken does not grant Park more time to raise his challenge.
Park also argues that he could not have raised the jurisdictional issue of domicile in his motion to quash service of summons. Park contends that only the issues specified in Code of Civil Procedure section 418.10, subdivision (a) may be raised in such a motion. Case law does not support his position: "[Former r]ule 1230, which applies to all actions and proceedings under the Family Code [citation], provides that, within the time permitted to file a response, the respondent may move to quash the proceeding based on petitioner's lack of legal capacity to sue. Unlike other civil proceedings, the motion to quash is not limited to jurisdictional challenges. [Citation.] Thus, here, Michael permissibly responded to the complaint by seeking to quash the proceeding on the ground Gary did not have standing to pursue an action to determine the existence or nonexistence of a father and child relationship under [Family Code] section 7630." (Miller v. Miller (1998) 64 Cal.App.4th 111, 116.)
II.
Attorney Fees
Park argues that the attorney fees award must be reversed because there has not yet been a determination of whether the trial court has jurisdiction over this dissolution of marriage proceeding. Because we have concluded, ante, that the trial court did not err by determining that Park waived the issue of domicile, the trial court has made a determination as to its jurisdiction, and we affirm the attorney fees award as well.
The cases cited by Park in support of his argument that the trial court lacked jurisdiction to award attorney fees are distinguishable. In Gutting v. Globe Indemnity Co. (1931) 119 Cal.App. 288, 288 (Gutting), the trial court granted the defendant's motion to dismiss the plaintiff's action "'for want of jurisdiction.'" The appellate court concluded that a trial court may not order costs in an action in which it lacks jurisdiction. (Id. at p. 289.)
Ablett v. Hancock Oil Co. (1935) 10 Cal.App.2d 58 (Ablett), distinguished Gutting, supra, 119 Cal.App. 288, based on the difference between the dismissal of an action "for a lack of jurisdiction to act therein or for failure of proof." (Ablett, supra, at p. 60.) In Ablett, the trial court had determined it lacked jurisdiction because the plaintiff had failed to exhaust its other remedies. (Ibid.) The failure to exhaust remedies had not appeared in the complaint, and the appellate court therefore inferred that the defendant had offered evidence to prove that defense. (Ibid.) The dismissal for want of jurisdiction was therefore based on a failure of proof rather than the lack of jurisdiction by the court, and the court had jurisdiction to award costs to the defendant. (Ibid.)
In Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, the court distinguished Gutting because that case "does not address the question of whether, or under what conditions, a cost award may be based on or incidental to a judgment of dismissal that was entered under a trial court's jurisdiction to determine jurisdiction. . . . [¶] . . . [¶] . . . In this case, where the potential that the trial court lacked subject matter jurisdiction was one of the issues between the parties in the case, having been specifically raised in the pleadings as an affirmative defense, and defendant succeeded in proving that defense, the trial court had power to award costs following entry of the resulting judgment of dismissal. That judgment of dismissal and the proceedings on which it depended were based on the trial court's jurisdiction to determine its own jurisdiction. Moreover, the trial court did not merely declare that it lacked jurisdiction or abate the action or refuse to act, it determined by resolution of disputed facts that the defendant prevailed on its jurisdictional defense. We believe that such a judgment of dismissal is sufficient to carry with it the power to award costs incidental thereto, and that such cost award would rest on the same jurisdictional foundation that supported the judgment of dismissal." (Brown, supra, 193 Cal.App.4th at p. 744.)
Finally, in Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1 (Shisler), on which Park relies, the court distinguished Gutting, supra, 119 Cal.App. 288, on the ground that the dismissal in Gutting was due to lack of the court's subject matter jurisdiction, while in Shisler the dismissal was due to the court's lack of personal jurisdiction over a party. (Shisler, supra, at p. 6.)
Similarly, the petition for dissolution of the marriage in this case alleges that Kwon was domiciled in California at the time of the filing; Park contends that Kwon was not. But Park has waived that issue. Therefore, the trial court had jurisdiction to award attorney fees and costs to Kwon.
Even if we were to conclude that the trial court erred by determining that Park waived the issue of domicile, we would nevertheless affirm the trial court's pendente lite order awarding Kwon the attorney fees and costs she incurred in connection with the first appeal. The purpose of an attorney fees award in a family law matter is to assure that a party has adequate resources to properly litigate the issues in controversy, and to further the public policy favoring parity between spouses in their ability to obtain legal representation. (Fam. Code §§ 2030-2032; In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) No matter which party had the better argument on appeal, the award was reasonable and necessary to allow both parties to present their arguments to this court.
Disposition
We affirm the trial court's orders. Respondent shall recover costs on appeal.
WE CONCUR: O'LEARY, P. J., GOETHALS, J.