Marriage of Lozano

Filed 3/20/06 Marriage of Lozano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

3

APPEAL from a judgment of the Superior Court of Imperial County, Donal B. Donnelly, Judge. Reversed.

Donna D. Ruffier de Lonzano (Donna) appeals from a judgment of nullity entered by the trial court on the basis of bigamy, after determining that Donna was still married to her previous husband Abraham Martinez (Abraham) at the time she purported to marry Enrique H. Lozano (Enrique).^[1] Donna argues that the trial court incorrectly disregarded a nunc pro tunc judgment of dissolution entered by the San Diego County Superior Court in the marriage of Donna and Abraham. Donna also appeals the trial court's denial of putative spouse status, as well as the trial court's order requiring her to pay Enrique's costs and a portion of his attorney fees under Family Code section 2255.^[2]

We conclude that the trial court erred in disregarding the nunc pro tunc judgment entered by the San Diego County Superior Court. Accordingly, we reverse the judgment of nullity and remand for the trial court to consider Donna's dissolution petition. Further, because the trial court did not have before it sufficient evidence of Enrique's income and financial condition to allow it to properly exercise its discretion, we also reverse the trial court's order requiring Donna to pay Enrique's costs and a portion of his attorney fees.

I

FACTUAL AND PROCEDURAL BACKGROUND

Donna and Enrique were married on March 15, 2000. Their son Moises was born in October 2000. When Donna and Enrique met, Donna was in the process of getting a divorce from her husband Abraham. Donna was not represented by counsel in the dissolution proceeding, which was filed in San Diego County Superior Court. At the time she married Enrique, Donna inadvertently had not followed through with the necessary steps to obtain a final judgment of dissolution from Abraham. According to Donna, she was advised by a clerk of the court that she would automatically be divorced six months after the date that Abraham was served with process in August 1999, and for that reason, she failed to take the proper steps to obtain a final judgment of dissolution before marrying Enrique. Donna explained she first learned in 2002 that she was not divorced from Abraham when she applied for a job with a governmental agency. The agency checked court records to confirm Donna's marital history but could not find a record of her divorce. Realizing that she was not divorced from Abraham, Donna applied in pro per to the San Diego County Superior Court to finalize the divorce. The San Diego County Superior Court entered a final judgment of dissolution on August 14, 2002, effective as of that date.

By late 2002 Donna and Enrique were having marital problems, and Donna filed a child custody and child support action against Enrique in San Diego County Superior Court and petitioned to have Moises's last name changed from Lozano to Ruffier (the name-change application). In the name-change application, Donna stated that she and Enrique were not married at the time of Moises's birth. Donna apparently withdrew the petition when she and Enrique temporarily reconciled.^[3]

Donna subsequently filed a petition for dissolution of her marriage to Enrique in Imperial County Superior Court (the trial court) in July 2004. Enrique responded on September 1, 2004, by commencing an action for nullity pursuant to section 2201, alleging that his marriage to Donna was void because Donna was still married to Abraham at the time she married him.^[4] The trial court consolidated the nullity and dissolution proceedings.

Shortly thereafter, Donna brought an ex parte application in San Diego County Superior Court for an order directing that the judgment of dissolution in her marriage to Abraham be entered nunc pro tunc to February 6, 2000 -- a date before Donna's marriage to Enrique.^[5] The San Diego County Superior Court granted the relief sought by Donna (the nunc pro tunc judgment).

The trial court then held an evidentiary hearing to resolve Enrique's action for annulment of his marriage to Donna. Enrique was represented by counsel; Donna was not. The court was presented with evidence of the nunc pro tunc judgment, but in closing argument Enrique's counsel argued that the trial court should disregard the nunc pro tunc judgment because the judge presiding over that action in San Diego County Superior Court abused her discretion in entering the judgment.

The trial court ruled in favor of Enrique, concluding that the marriage of Donna and Enrique was void on the basis of bigamy in that Donna was already married to Abraham at the time she married Enrique. The trial court expressly disregarded the nunc pro tunc judgment, stating:

"The court will find the order of the San Diego Superior Court . . . granting a nunc pro tunc dissolution . . . was in violation of . . . section 2346. This court in this case disregards that ex parte nunc pro tunc order, finding it to be in violation of [section] 2346 . . . ; and, I will further find that the San Diego [Superior] Court's order has no bearing on this annulity case for the reason that it was obtained only after a petition for annullity was filed by [Enrique] on September 1[, 2004]. So, I find it not only to be improper, but untimely, as it occurred after the petition for annulity has been filed here in Imperial County. [¶] So, the nunc pro tunc does not cure the fundamentally nullified and voiding the marriage judgment [sic]."

The trial court also denied putative spouse status to Donna^[6] and ordered that Donna pay $750 of Enrique's attorney fees -- half of the $1,500 requested by Enrique. Explaining the attorney fees award, the trial court stated:

"I'm going to award $750 in attorney's fees. I'll note from [Donna]'s income and expense declaration that she apparently had a very well-paying job with the Coastal Transport but has been unemployed since April of 2004, but I do impute an ability to earn a healthy income. [¶] [Enrique] didn't file an [income and expense declaration] that I saw, but I've taken note of evidence that he is employed with a governmental agency, and evaluated the relevant financial circumstances, and find a $750 award is appropriate."

The trial court entered a judgment of nullity on December 17, 2004. Donna appeals from the judgment of nullity, the trial court's decision that Donna was not entitled to putative spouse status, and the trial court's order requiring Donna to pay a portion of Enrique's attorney fees.

II

DISCUSSION

A

The Trial Court Erred by Disregarding the Nunc Pro Tunc Judgment

Donna contends that the judgment of nullity must be reversed because the nunc pro tunc judgment established that the date of the dissolution of Donna's marriage to Abraham was prior to the date of Donna's marriage to Enrique. As we will explain, we agree.

We begin with an overview of the authority that permitted the San Diego County Superior Court to enter the nunc pro tunc judgment. Section 2346 gives a court authority to order that a judgment of dissolution of marriage be entered nunc pro tunc on the basis of mistake, negligence or inadvertence. "[E]ntry of a final decree of divorce nunc pro tunc usually has as its purpose the validation of a marriage which would otherwise be bigamous . . . ." (Hurst v. Hurst (1964) 227 Cal.App.2d 859, 867.)

Specifically, section 2346 provides that a court may order a dissolution judgment to "be signed, dated, filed, and entered in the proceeding as of the date when the judgment could have been signed, dated, filed, and entered originally," "even though the judgment may have been previously entered, where through mistake, negligence, or inadvertence the judgment was not entered as soon as it could have been entered under the law if applied for." (§ 2346, subds. (a), (c).) The court may enter such an order "if it appears to the satisfaction of the court that no appeal is to be taken in the proceeding or motion made for a new trial, to annul or set aside the judgment, or for relief under Chapter 8 (commencing with Section 469) of Title 6 of Part 2 of the Code of Civil Procedure." (§ 2346, subd. (a).) Pursuant to section 2346, subdivision (b), a nunc pro tunc judgment may be entered in an ex parte proceeding, except that "[i]n contested cases, the motion of a party shall be with notice to the other party."^[7] Apart from the authority conferred by section 2346, " ' "[t]he power to enter judgments nunc pro tunc is inherent in the courts . . . ." ' " (In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1177 (Mallory).)

Here, the San Diego County Superior Court exercised its authority by granting Donna's ex parte application for entry of judgment nunc pro tunc to February 6, 2000. Accordingly, unless the trial court had a valid basis to disregard the nunc pro tunc judgment, that judgment established that Donna and Abraham's marriage was dissolved as of February 6, 2000, and that Donna and Enrique's marriage on March 5, 2000, was accordingly not bigamous. This is because a nunc pro tunc judgment "acts retroactively to restore [the parties] to the status of single persons and at the same time gives them and their later acquired spouses legal married status." (Estate of Hughes (1947) 80 Cal.App.2d 550, 553; see also § 2346, subd. (d) ["Upon the entry of the [nunc pro tunc] judgment, the parties have the same rights with regard to the dissolution of marriage becoming final on the date that it would have become final had the judgment been entered upon the date when it could have been originally entered"].)

The trial court relied on two grounds for disregarding the nunc pro tunc judgment: (1) that the nunc pro tunc judgment was "in violation of" section 2346, and (2) the nunc pro tunc judgment was "untimely," as it was entered after Enrique had filed his action to annul his marriage to Donna. As we will explain, neither of these grounds provided a proper basis for the trial court to disregard the nunc pro tunc judgment.

1. The Trial Court Erred in Disregarding the Nunc Pro Tunc Judgment on the

Basis That It Was "in Violation" of Section 2346

We first address the trial court's decision to disregard the nunc pro tunc judgment on the grounds that it was "in violation of" section 2346. We conclude that the trial court erred.

A trial court may entertain a collateral attack on the judgment of another superior court only when that court lacked jurisdiction to enter the judgment. It is a long-standing principle that " 'where a court has jurisdiction it has a right to decide every question arising in the cause, and, whether its decision be correct or otherwise, its judgment until reversed is binding on every other court. Errors which it may make must be corrected from within by motion or appeal.' " (Harris v. Harris (1935) 10 Cal.App.2d 734, 737, italics added.)^[8] Another party "may not collaterally attack a final judgment for nonjurisdictional errors. . . . ' "If a judgment, no matter how erroneous, is within the jurisdiction of the court, it can only be reviewed and corrected by one of the established methods of direct attack." ' " (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854, citations omitted; see also Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950 ["[c]ollateral attack is proper to contest lack of personal or subject matter jurisdiction or the granting of relief which the court has no power to grant"].) Thus, if the San Diego County Superior Court had jurisdiction over the dissolution of Donna and Abraham's marriage, "[a]s between . . . strangers and parties . . . the decree [of dissolution] is res judicata . . . in that it conclusively determines that the parties are thereafter free to remarry so far as any relation to each other is concerned." (Rediker v. Rediker (1950) 35 Cal.2d 796, 801 [explaining res judicata effect of dissolution judgment as to third parties].)

We conclude that the San Diego County Superior Court had jurisdiction to enter the nunc pro tunc judgment, and the trial court thus erred in permitting Enrique to collaterally attack it. The San Diego County Superior Court was clearly the proper court to entertain Donna's application for a nunc pro tunc judgment, as it was the court that entered the judgment in the action to dissolve Donna and Abraham's marriage, and section 2346 gave the court the authority to act on Donna's application for nunc pro tunc relief.^[9] Accordingly, we find no basis to question the San Diego County Superior Court's jurisdiction, and we thus perceive no valid basis for the trial court to have disregarded the content of the nunc pro tunc judgment, which establishes February 6, 2000, as the date of the dissolution of Donna and Abraham's marriage.

Enrique presents two arguments in support of his claim that the San Diego County Superior Court improperly entered the nunc pro tunc judgment. Although Enrique's arguments do not challenge the San Diego County Superior Court's jurisdiction, and accordingly do not address the only basis upon which the trial court could have validly attacked the nunc pro tunc judgment, we nevertheless address Enrique's arguments.

First, Enrique argues that the nunc pro tunc judgment was improper because he was not given notice of Donna's ex parte application. The argument lacks merit because case law establishes that a subsequent spouse, such as Enrique, who is seeking an annulment, need not be given notice that his wife is seeking a nunc pro tunc judgment of dissolution from her previous husband. (Macedo v. Macedo (1938) 29 Cal.App.2d 387, 392 (Macedo) [due process principles did not prevent the court from relying on a nunc pro tunc dissolution judgment in favor of the wife regarding her previous marriage even though the second husband did not receive notice of the nunc pro tunc proceeding, as the husband had no vested interest in the date of that dissolution].)

Second, Enrique points to the portion of section 2346 providing that a court should only grant nunc pro tunc relief "if it appears to the satisfaction of the court that no appeal is to be taken in the proceeding or motion made for a new trial, to annul or set aside the judgment, or for relief under [Code of Civil Procedure sections 469 through 475]." (§ 2346, subd. (a).) Enrique argues that because of his own disputes with Donna, it should have been evident that an "appeal" would be taken. We reject this argument because it is clear from the plain language of the statute that the appeal referred to in section 2346 is an "appeal . . . in the proceeding" in which the nunc pro tunc judgment is entered. Here, the relevant proceeding was the dissolution of Donna and Abraham's marriage. The possibility of an appeal in the annulment action brought by Enrique thus had no bearing on whether nunc pro tunc relief was proper in the proceeding to dissolve Donna and Abraham's marriage.

2. The Trial Court Erred in Disregarding the Nunc Pro Tunc Judgment on the

Basis That It Was Entered After Enrique Had Filed the Annulment Action

The trial court also believed that because the nunc pro tunc judgment was entered after Enrique had filed the annulment action, it could disregard the nunc pro tunc judgment as "untimely." As we shall explain, the trial court erred in disregarding the nunc pro tunc judgment on that basis.

As established by long-standing case law, a nunc pro tunc dissolution judgment should be considered by a court in evaluating an annulment petition, even when the nunc pro tunc judgment was obtained after the filing of an annulment action by a subsequent spouse. (See Macedo, supra, 29 Cal.App.2d at p. 392 [the trial court properly denied the husband's application for annulment that was filed before his wife obtained a nunc pro tunc judgment concerning her previous marriage]; Overby v. Overby (1957) 154 Cal.App.2d 813 [in divorce case filed by wife, where husband cross-complained for an annulment on grounds that wife was already married at the time he married her, and wife obtained nunc pro tunc judgment the day before the trial adjusting the date of her previous divorce judgment, the court properly denied the annulment based on the nunc pro tunc judgment]; Nicolai v. Nicolai (1950) 96 Cal.App.2d 951, 954 [the court granted a dissolution rather than an annulment on the basis of a nunc pro tunc entry of judgment obtained on the day of trial, which dissolved the parties' prior marriage].)^[10] Further, neither the trial court nor Enrique identified any authority calling into question the binding nature of a nunc pro tunc judgment entered after a subsequent spouse files an annulment action. Accordingly, based on the above case law and the lack of any authority to the contrary, we conclude that the trial court did not have the authority to disregard the nunc pro tunc judgment on the basis that it was entered after Enrique filed the annulment action.

As we conclude that the trial court erred in disregarding the nunc pro tunc judgment, which establishes Donna was divorced from Abraham at the time she married Enrique, the marriage of Donna and Enrique is not void on the basis of bigamy. We accordingly reverse the judgment of nullity and remand for the trial court to consider Donna's dissolution action.^[11]

B

Because Enrique Submitted No Evidence Concerning His Financial Condition, the

Trial Court Abused Its Discretion in Ordering Donna to Pay Enrique's Costs and a

Portion of His Attorney Fees

Donna challenges the trial court's ruling requiring her to pay Enrique's costs and a portion of his attorney fees. We apply an abuse of discretion standard to the trial court's decision. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 (Keech).)

The trial court based its order for payment of attorney fees and costs on section 2255, which gives the court authority to grant attorney fees and costs in an annulment action in accordance with the standards set forth in sections 2030 through 2034. Section 2030, subdivision (a)(2) focuses on the respective incomes and needs of the parties and their ability to pay. "Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay. . . ." (§ 2030, subd. (a)(2).) Section 2032 authorizes the court to award attorney fees and costs ". . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) "In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in section 4320 [the statute governing an award of spousal support]." (§ 2032, subd. (b).) Under section 4320, the relevant factors " ' 'include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties." ' " (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)

The trial court based its order on the observation that although Donna had been unemployed for the last six months, "she apparently had a very well-paying job" according to the information in her income and expense declaration, and that although the trial court did not have an income and expense declaration from Enrique, the evidence showed that Enrique "is employed by a governmental agency." ^[12]

In reviewing whether the trial court abused its discretion, we focus on the principle that " 'although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.' " (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315 (Cheriton), italics added.)

Central to our analysis is that fact that California Rules of Court, rule 5.128(b) provides that "[w]hen a party is represented by counsel and attorney's fees are requested by either party, the section on the Income and Expense Declaration pertaining to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed, as well as the section pertaining to the amount of attorney's fees incurred, currently owed, and the source of money used to pay such fees," but Enrique did not follow this rule, and did not file an income and expense declaration. Further, we have reviewed the record and have found no evidence presented by Enrique during his testimony or in any court filing concerning his income, assets, debts and expenses. In short, the trial court ordered Donna to pay Enrique's costs and fees without having before it sufficient information as to Enrique's financial condition.^[13]

In light of the fact that Enrique failed to present the trial court with evidence of his income or to explain why his financial condition necessitated an order requiring Donna to pay his attorney fees and costs, we can reach no other conclusion than that the trial court could not have considered the parties' respective income and need, as set forth in sections 2030 and 2032. Because it is an abuse of discretion for a court to rule on a motion for attorney fees and costs " 'without considering the needs of the requesting spouse and the ability to pay of the spouse against whom the award is sought' " (Cheriton, supra, 92 Cal.App.4th at p. 315), we conclude that the trial court abused its discretion here. (See Keech, supra, 75 Cal.App.4th at p. 866 [trial court abused its discretion by awarding fees without considering the litigation needs of the parties and the parties' ability to pay].) Accordingly, we reverse the order requiring Donna to pay Enrique's attorney fees and costs.

DISPOSITION

The judgment of nullity is reversed. The order requiring Donna D. Ruffier de Lozano to pay Enrique H. Lozano's costs and a portion of his attorney fees is reversed. Donna D. Ruffier de Lozano to recover costs on appeal.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Apartment Manager Lawyers.

^[1] For purposes of clarity and not out of disrespect, we refer to the parties by their first names.

^[2] Unless otherwise indicated, all further statutory references are to the Family Code.

^[3] The appellate record does not contain the name-change petition, but it was offered as an exhibit at trial and it is described in Donna's testimony.

^[4] Section 2201 provides: "(a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless: [¶] (1) the former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage."

^[5] The appellate record does not contain a copy of the declaration in support of the ex parte application, but according to a statement made by Enrique's counsel to the trial court, the declaration was signed by both Donna and Abraham, and thus was an uncontested application. The ex parte application also states that notice was given as required by court rule.

^[6] The trial court relied on the name-change petition, among other evidence, in concluding that Donna did not believe in good faith that the marriage was valid, and accordingly denied the putative spouse petition.

^[7] The full text of section 2346 provides:

"(a) If the court determines that a judgment of dissolution of the marriage should be granted, but by mistake, negligence, or inadvertence, the judgment has not been signed, filed, and entered, the court may cause the judgment to be signed, dated, filed, and entered in the proceeding as of the date when the judgment could have been signed, dated, filed, and entered originally, if it appears to the satisfaction of the court that no appeal is to be taken in the proceeding or motion made for a new trial, to annul or set aside the judgment, or for relief under Chapter 8 (commencing with Section 469) of Title 6 of Part 2 of the Code of Civil Procedure.

"(b) The court may act under subdivision (a) on its own motion or upon the motion of either party to the proceeding. In contested cases, the motion of a party shall be with notice to the other party.

"(c) The court may cause the judgment to be entered nunc pro tunc as provided in this section, even though the judgment may have been previously entered, where through mistake, negligence, or inadvertence the judgment was not entered as soon as it could have been entered under the law if applied for.

"(d) The court shall not cause a judgment to be entered nunc pro tunc as provided in this section as of a date before trial in the matter, before the date of an uncontested judgment hearing in the matter, or before the date of submission to the court of an application for judgment on affidavit pursuant to Section 2336. Upon the entry of the judgment, the parties have the same rights with regard to the dissolution of marriage becoming final on the date that it would have become final had the judgment been entered upon the date when it could have been originally entered."

^[8] Applicable to adjudication of marital status, Code of Civil Procedure section 1908, subdivision (a)(1) provides that "[t]he effect of a judgment or final order in an action or special proceeding before a court or judge of this state . . . having jurisdiction to pronounce the judgment or order, [i]n case of a judgment or order . . . in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order . . . is conclusive upon the . . . condition or relation of the person." (Italics added.)

^[9] We note also that because the matter was not contested by Abraham, the trial court was authorized to hear the application on an ex parte basis. (§ 2346, subd. (b).)

^[10] These cases were decided under predecessor statutes to section 2346, which also allowed courts to enter nunc pro tunc judgments regarding judgments of dissolution. (Mallory, supra, 55 Cal.App.4th at pp. 1178-1179 [describing statutory history of section 2346 and predecessor statutes].)

^[11] Because we reverse the judgment of nullity, we need not reach Donna's argument that the trial court erred in denying her putative spouse status.

^[12] Donna's income and expense declaration states that when she was employed, she made $10 per hour, and worked approximately 70 hours per week as a travel consultant. Based on this information, we calculate that her monthly income was approximately $3,000 when she was employed and working a 70‑hour work week. However, she had been unemployed for six months. We note that based on her financial condition, Donna was granted a waiver from paying her own court fees and costs when she filed her action for dissolution of her marriage to Enrique. Further, Donna was unable to hire an attorney to represent her, and she explained to the trial court that she did not have funds to pay the fees and costs that the trial court had ordered her to pay to Enrique. The trial court suggested that she borrow the money from family or friends.

^[13] We note also that the trial court "impute[d]" to Donna "an ability to earn a healthy income," based solely on the fact that she was previously employed. Section 4320 (which is referenced in section 2032, subdivision (b)) explicitly allows a court to consider earning capacity in determining the circumstances of the parties (id., subd. (a), but case law establishes that " ' "[e]arning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire." ' " (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338.) Here, the trial court did not undertake a review of any of these factors except for work experience.