Marriage of Benson

Filed 3/20/06 Marriage of Benson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Adam Wertheimer, Commissioner. Affirmed.

I.

INTRODUCTION

In July 2004, Lorette Speer^[1] filed a motion to vacate a child support order obtained by her former husband, Bradley Benson, on April 10, 2000, pursuant to Code of Civil Procedure section 473.^[2] Speer claimed that the April 2000 order, which modified a prior child support order, was void because she was not provided with proper notice of the hearing pursuant to which the April 2000 order was entered. The trial court denied the motion, finding that Benson properly served Speer with notice of the April 2000 hearing.

On appeal, Speer claims the trial court erred in relying on a transcript of the April 2000 hearing that had not been provided to Speer prior to the hearing on her July 2004 motion, and in finding that Benson properly served Speer with notice of the April 2000 hearing. We affirm the order.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Speer and Benson were divorced at some point prior to the proceedings at issue in this appeal.^[3] On July 26, 1999, the court held a hearing regarding child support for their three minor children. Both Speer and Benson appeared in court at the hearing. After the hearing, the court entered an order requiring Benson to pay $1,321 per month in child support.

On November 8, 1999, Benson filed an application for an order to show cause (OSC) seeking to modify the July 26, 1999, child support order due to a reduction in his income. The court issued an OSC directing Speer to appear in court on December 6, 1999. On December 6, 1999, Benson filed an application for reissuance of the OSC because he had been unable to serve Speer, as required, prior to the hearing date. That same day, the court issued a new OSC setting a hearing date of January 26, 2000. On January 25, Benson filed a second application for reissuance of the OSC due to his inability to serve Speer. The following day, the court issued an OSC setting a new hearing date of February 29. On February 22, Benson filed a third application for a reissuance of the OSC, again because he had been unable to serve Speer, as required, prior to the hearing date. The same day, the court again issued an OSC, this time setting a hearing date of April 10.

On April 10, 2000, the court held a hearing on the February 22 OSC. Benson's counsel appeared at the hearing, but neither Speer nor her counsel appeared. At the hearing, the court questioned Benson's counsel as to whether Speer had been provided notice of the hearing. Benson's counsel responded that he had served Speer both by certified mail and by regular mail. He stated that the certified mail had not been picked up, but that the regular mail "went through perfectly." The court inquired whether Benson's counsel had filed a proof of service. Benson's counsel responded that he had filed three proofs of service indicating the various dates on which he had mailed documents to Speer.

Benson filed three proofs of service on the day of the April 10 hearing. The proofs of service were executed on December 6, 1999, January 14, 1999,^[4] and March 1, 2000. The December 6, 1999 proof of service contained the following notation near the top of the form:

"Judge Stern

"Dept: F-5

"Date: 1/26/00 Time: 8:45 a.m."

The January 14, 1999 proof of service contained a similar notation near the top of the form that stated:

"Judge Kutzner

"Dept: F-5

"Date: 2/23/99 Time: 8:45 a.m."

The March 1, 2000 proof of service contained the same notation as the December 6, 1999 form:

"Judge Stern

"Dept: F-5

"Date: 1/26/00 Time: 8:45 a.m."

In each proof of service, Benson's counsel declared that he had mailed to Speer an OSC and an application for order.

On April 10, 2000, Benson's counsel filed a declaration in which he stated, in relevant part:

"I sent a copy of the original Order to Show Cause to Respondent's former attorney, John Lightener. He was not authorized to accept service on her behalf. I then sent the notices to Respondent directly. A certified copy went unclaimed. I then sent the OSC twice by regular mail and received no response."

After the April 10, 2000 hearing, the court modified the child support order that had been entered pursuant to the July 26, 1999 hearing. The court reduced the amount of child support to $100 per month for the period November 1, 1999 through January 9, 2000, due to Benson's unemployment during this time. As of January 9, the court ordered Benson to pay Speer $548 per month, rather than the $1,321 per month that had been previously ordered.

In June 2004, Speer filed a motion to vacate the April 10, 2000 order. Speer filed a declaration in which she claimed she had not received notice of the April 10, 2000 hearing. She also filed a memorandum in which she claimed that Benson had failed to properly serve her with notice of the April 2000 hearing.

In December 2004, the court held a hearing on Speer's motion to vacate the April 10, 2000 order. At the hearing, the court reviewed the various proofs of service and found that Benson had properly served Speer with notice of the April 10, 2000 hearing. The court denied the motion to vacate. Speer filed a motion for reconsideration, which the court denied.

Speer timely appeals.

III.

DISCUSSION

A. The trial court properly considered the April 10, 2000 hearing transcript

Speer claims the trial court erred in considering the transcript of the April 10, 2000 hearing in ruling on her motion to vacate because Benson failed to provide her with a copy of the transcript prior to the hearing on the motion to vacate.

1. Procedural history

In her July 2004 motion, Speer sought to vacate the court's April 10, 2000 order. Benson provided the court with a transcript of the April 10, 2000, hearing at some point prior to the hearing on the motion to vacate. The trial court referred to the April 10, 2000 hearing transcript at the outset of the hearing on the motion to vacate, before ruling on the motion. Speer's counsel did not object to the court's referring to the transcript from the April 2000 hearing at that time.

When the trial court referred to the transcript of the April 2000 hearing a second time after having ruled on the motion to vacate, Speer's counsel objected, claiming that she had not been provided with a copy of the transcript prior to the hearing. In response, Benson's counsel stated that Speer's former counsel previously had a copy of the transcript, and that a copy had also been mailed to Speer's current counsel. Benson's counsel gave Speer's counsel an extra copy of the April 2000 transcript, which he had brought to the hearing on the motion to vacate. Speer subsequently filed a motion for reconsideration, citing Benson's failure to provide her with a copy of the April 10, 2000, hearing transcript prior to the hearing on the motion to vacate. The court denied the motion for reconsideration.

2. Speer provides no authority to support her argument that Benson was

required to provide her with the April 10, 2000 hearing transcript

Beyond referring to "due process" and claiming that "Benson violated the Constitution rights [sic] of Ms. Speer," Speer cites no authority for the proposition that Benson was required to provide her with a copy of the transcript of the April 10, 2000, proceeding prior to the hearing on her motion to vacate. Further, Benson did provide Speer with a copy of the transcript at the hearing on the motion to vacate. Finally, it was clearly proper for the trial court to review the transcript of the hearing that resulted in the order Speer was seeking to vacate.

B. Benson properly served Speer with notice of the April 10, 2000 hearing

Speer claims the trial court erred in denying her motion pursuant to section 473 to vacate the April 10, 2000 order. Specifically, Speer maintains that the trial court erred in determining that Benson properly served Speer with notice of the April 10, 2000 hearing.

1. Speer's motion to vacate is not barred by any limitation period

contained in section 473

Benson claims that Speer's motion was untimely under section 473. Section 473, subdivision (d) provides in relevant part: "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."^[5]

Section 473, subdivision (d) does not mention a limitations period (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862). Speer suggests in her brief that a motion pursuant to section 473, subdivision (d) for relief from an order that is allegedly void for improper service must generally be brought within two years of the entry of that order, but that claims alleging a lack of personal jurisdiction may be brought at any time, citing Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444. Speer also appears to argue that her motion is timely, notwithstanding that it was filed approximately four years after entry of the April 10, 2000 order, because she is alleging that the trial court lacked personal jurisdiction over her. Benson claims that Speer's motion was not timely because the court had personal jurisdiction over her by virtue of her appearance in the action and, thus, the ordinary limitations period applicable to section 473 motions applies.

We conclude that Speer's motion is not barred by any limitation period contained in section 473, for reasons distinct from those the parties discuss. In In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033, 1036, appellant filed a motion to set aside a postjudgment order terminating spousal support on the ground that she had not been properly served with notice of the motion on which the order was based. The trial court denied the motion to set aside, concluding that the motion was untimely under section 473. On appeal, appellant claimed the order terminating spousal support was void because respondent failed to properly serve appellant with notice of the motion pursuant to former Civil Code section 4809, now Family Code section 215. (In re Marriage of Kreiss, supra, at p. 1036.) The Court of Appeal rejected respondent's argument that the motion was untimely under section 473, reasoning:

"Appellant contends that because respondent's noncompliance with [former] section 4809 rendered the orders invalid, Code of Civil Procedure section 473 does not apply. We agree. Respondent's failure to serve appellant with notice of the motion is the equivalent of failure to serve summons and complaint, which renders a judgment void on its face and subject to collateral attack at any time." (In re Marriage of Kreiss, supra, at pp. 1039-1040.)

Speer's motion to vacate the April 10, 2000 order was equivalent in all material respects to the motion at issue in In re Marriage of Kreiss, namely a motion to vacate a postjudgment support order, based on improper service. We conclude that Speer's motion was not barred by any limitation period contained in section 473.

2. Benson properly served Speer with notice of the April 10, 2000 hearing

Family Code section 215 provides:

"After entry of a judgment of dissolution of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent order in any other proceeding in which there was at issue the visitation, custody, or support of a child, no modification of the judgment or order, and 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. For the purposes of this section, service upon the attorney of record is not sufficient."

Any order issued without the notice prescribed in Family Code section 215 is void. (County of Shasta v. Smith (1995) 38 Cal.App.4th 329, 335; In re Marriage of Kreiss, supra, 224 Cal.App.3d at pp. 1039-1040.)

The requirement of Family Code section 215 that a party seeking modification of a postjudgment child support order provide notice to the opposing party "in the same manner as the notice is otherwise permitted by law to be served," is met by providing service pursuant to the provisions of the Code of Civil Procedure governing service of motions in civil actions generally (§ 1010 et seq.). (Parker v. Parker (1974) 43 Cal.App.3d 610, 613.) More specifically, a party may demonstrate proper service by mail of a motion to modify a child support order by complying with the proof of service requirements contained in section 1013a. (Gortner v. Gortner (1976) 60 Cal.App.3d 996, 1000, fn. 5.)

Section 1013a provides in relevant part:

"Proof of service by mail may be made by one of the following methods:

"[¶] . . . [¶]

"(3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business' practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit."

Although strict compliance with section 1013a is required, "The rule of 'strict compliance' is satisfied by substantial, without literal, compliance . . . ." (Douglas v. Janis (1974) 43 Cal.App.3d 931, 937; accord Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 443 ["[E]ven where proof of service must conform to the requisites of Code of Civil Procedure section 1013a, only substantial compliance is required"].)

In this case, Speer's contention that "[n]o proof of service was filed for [notice of] the 4/10/2000 [hearing]" appears to be premised on her theory that the proof of service executed on March 1, 2000, was a proof of service of documents pertaining to the January 26, 2000 hearing. We disagree.

Although it is not entirely clear from her brief, Speer's claim appears to be based on the fact that the March 1, 2000 proof of service contained the following notation near the top of the form:

"Judge Stern

"Dept: F-5

"Date: 1/26/00 Time: 8:45 a.m."

Although Speer suggests that this notation indicates that this proof of service refers to documents that were served in connection with the January 26, 2000 hearing, the notation does not on its face indicate that it refers to a hearing date. Further, even assuming the notation does refer to a hearing date, it makes little sense to interpret a document that was executed on March 1, 2000, as constituting a proof of service of documents pertaining to a January 26, 2000 hearing. Even more important, there is no requirement in section 1013a that the proof of service state the date of any hearing to which the document being served pertains. On the contrary, the notice of the hearing is contained within the documents that are being served. In this case, the March 1, 2000, proof of service indicated that Benson's counsel served Speer with an OSC, and the record contains an OSC that contains the correct hearing date of April 10, 2000. Therefore, we conclude that the March 1, 2000 proof of service substantially complies with section 1013a and constitutes adequate proof that Benson properly served Speer with notice of the April 10, 2000 hearing.

The trial court properly denied Speer's motion to vacate the April 10, 2000 order because Benson properly served Speer with notice of the April 10, 2000 hearing.^[6]

IV.

DISPOSITION

The order is affirmed. Benson is entitled to costs.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Apartment Manager Lawyers.

^[1] Speer's married name was Lorette Benson. We refer to her as Speer throughout this opinion.

^[2] Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.

^[3] The judgment of dissolution is not in the record. However, it is undisputed that the proceedings relevant to this appeal occurred postjudgment.

^[4] Benson claims the year 1999, rather than 2000, on this proof of service was a typographical error. Speer claims the proof of service pertains to documents related to a prior hearing in the beginning of 1999. We need not resolve this issue, because the year of the January 14 proof of service is not material to the resolution of this appeal.

^[5] Speer's memorandum of points and authorities in the trial court and her brief in this court refer generically to section 473 without specifying on which of the many subdivisions of that statute she is relying. Section 473, subdivision (d) appears to be the most relevant provision.

^[6] In light of our conclusion, we need not consider Benson's argument that Speer's claim should be rejected on the basis of the doctrine of equitable estoppel.