Marriage of Entezari and Heravi

Filed 1/18/07  Marriage of Entezari and Heravi CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this family law matter respondent Shahrokh Entezari Heravi (husband) appeals from the trial court's denial of his motion for relief from the default judgment entered against him and in favor of petitioner Ziba Jabali Entezari (wife).  Husband claims that the default was the result of his attorney's mistake and that relief was mandatory under Code of Civil Procedure section 473, subdivision (b).[1]   Husband also argues that the relief was warranted because he was never properly served with the summons and petition and because wife had fraudulently transferred community property to herself.  We conclude that husband did not show that entry of default was actually caused by attorney error, that husband voluntarily submitted to the jurisdiction of the court, and that the alleged fraudulent transfer does not warrant relief from the judgment.  Accordingly, we shall affirm.  

I.                                    Factual and Procedural Background

Husband and wife were married in 1989.  In February 1999 husband left the United States and did not return until December 2002.  Upon his return he and wife decided to separate and file for divorce.  Husband retained counsel to negotiate a property settlement and then left the country again.

On July 2, 2003, after negotiations failed, wife filed a petition for dissolution.  Service of the summons and petition was complicated by husband's absence from the country.  The proof of service contained in the record shows that the summons and petition were left at husband's offices in Tehran, Iran on August 2, 2003, and that copies had been mailed to his office two weeks earlier.  If copies were also mailed to husband on or after August 2, 2003, as required by section 415.20, subdivision (b), service was completed 10 days later (§ 415.20, subd. (b)) and a response would have been due 30 days after that on September 11, 2003 (§ 412.20, subd. (a)(3)).  On September 24, 2003, when husband had not responded to the petition, wife requested entry of default. 

Husband's former counsel was obviously aware that wife had requested entry of default because, on October 3, 2003, counsel filed papers opposing the request, including  husband's signed declaration stating â€