Marriage of Welker

Filed 4/4/06 Marriage of Welker 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 a judgment and orders of the Superior Court of San Diego County, Randa Trapp, Judge. Reversed with directions.

Kristy Welker (Kristy), the respondent in this dissolution proceeding, appeals from the November 2004 default judgment entered against her and from the trial court's decisions of February 2004 and December 2004 that denied her motions to set aside the default or default judgment, and related requests. (Code Civ. Proc., § 473.)^[1] Kristy contends the pleadings and service were inadequate to justify the entry of the default and default judgment in favor of her former husband Gregory Welker (Gregory) in their dissolution case. We conclude that the trial court abused its discretion by denying in their entirety Kristy's motions for relief from the default and judgment, and we reverse for further appropriate proceedings.

STATEMENT OF CASE AND FACTS

A

April 2000: Premarital Agreement

Kristy and Gregory were married in April 2000 and separated in January 2002. Kristy had been married before and has three teenage children. Before they married, Kristy and Gregory executed a premarital agreement (PMA), which contained a number of provisions regarding property settlements in the event of any separation or dissolution, including valuation of the residence and payment of residential expenses. The parties lived in Gregory's residence on Tarantella Lane, which remained his separate property.

B

February 2002-September 2002: Petition for Dissolution; Litigation;

Withdrawal of Kristy's Attorney

On February 1, 2002, Gregory's attorney Kent McQuerter filed on his behalf the original petition for dissolution. Six weeks later, Kristy's then-attorney, Margo Lewis, wrote to Gregory's attorney that she had been retained by Kristy and sought an extension to file a response by mid-April, 2002. Attorney Lewis acknowledged that Kristy found the service documents in the door when she returned home, and she was not disputing that service had been made of the petition.

From April 2002 through June 2002, Gregory's attorney and Kristy's attorney Lewis negotiated and litigated mutual restraining orders and an agreement that Kristy could stay in Gregory's residence until July 2002. In Kristy's declaration, she referred to the provisions of the PMA. The attorneys reached a stipulation regarding restraining orders and moving out of the residence, and Gregory's attorney attempted to file it in June 2002. However, the clerk rejected the stipulation and order because Kristy had not paid her first paper fee of $196.^[2] Pursuant to the parties' agreement negotiated by counsel, on July 1, 2002, Kristy and her three children left Gregory's residence so that Gregory could move back in. Although Kristy's telephone numbers apparently remained the same, Attorney Lewis lost any meaningful contact with Kristy and was sending her letters requesting her to sign papers and cooperate with the representation, including discovery responses, addressed to her estranged husband's address. Kristy later claimed she was not receiving forwarded mail.

On August 30, 2002, Attorney Lewis filed a motion to withdraw as Kristy's counsel, citing her lack of cooperation and communication. Lewis represented that she had confirmed Kristy's residence address and served the motion there, on August 29, 2002.^[3] However, the address used was Gregory's residence, even though the same counsel had already assisted in negotiating a move-out stipulation from that address.

Attorney Lewis's motion to withdraw as counsel was granted, effective September 30, 2002. However, the order was not filed and served until October 22 and October 28, 2002, again using the address of Gregory's residence, which Kristy had left pursuant to the parties' agreement on July 1, 2002. The order stated there were no pending hearings or proceedings. No response was on file.

C

September 2002-January 2003: Amended Petition

of Dissolution; Service; Default

The same day Attorney Lewis's withdrawal as Kristy's counsel became effective, September 30, 2002, Gregory's attorney filed on his behalf the amended petition for dissolution. The proof of service by mail, dated two weeks earlier (Sept. 13), used the address of Attorney Lewis for Kristy. The amended petition attached a copy of the PMA, as part of paragraph 5 regarding separate and community assets and debts. As part of paragraph 7, the requests for relief, the amended petition sought damages resulting from Kristy's breach of the premarital agreement, as well as an unjust enrichment determination and an award of attorney fees and costs.

On September 25, 2002, Attorney Lewis's office forwarded a copy of the amended petition to Kristy, again at Gregory's Tarantella Lane address, where Kristy no longer resided.

In November 2002, Gregory attempted to refinance the residence, but was unable to do so when Kristy refused to sign the papers.

On January 29, 2003, Gregory's request to enter Kristy's default was granted, based on mail service to Kristy at a new address, on Ruette Alliante.

D

March 2003-February 2004: Motion to Set Aside; Denial

In March 2003, Kristy obtained new counsel, who, in April 2003, filed a motion and order to show cause to set aside the default, and also paid her first appearance fee and lodged a proposed response. In declarations filed in May 2003, Kristy contended that the default had been taken by surprise after she rejected Gregory's settlement proposal to release her interest in the house, and she did not know why Attorney Lewis had not previously filed the response on Kristy's behalf.

In February 2004, Gregory filed opposition to the motion to set aside the default, which was now set for hearing in February 2004. Meanwhile, Kristy had sued Attorney Lewis in small claims court, seeking damages for legal malpractice, but Kristy did not provide the required expert testimony and judgment was entered for Attorney Lewis in January 2004. A transcript of these small claims proceedings was provided in Gregory's opposition papers, for the purpose of showing Kristy had not cooperated with Attorney Lewis. (See fn. 3, ante.)

In reply, Kristy contended Attorney Lewis's forwarding of the amended petition to her at Gregory's address was insufficient service. She also contended Attorney Lewis's motion to withdraw as counsel and order had not been properly served on her, even though Attorney Lewis knew Kristy had a new address, and she also should have told her she had 30 days to file a response.

The trial court denied the motion on February 23, 2004, stating Kristy could not show "that [she] was not at fault" in having the default entered, and that Gregory had incurred some prejudice in that there should be finality to the proceedings at some point. Over objections by Kristy, the court took judicial notice of the transcript of the small claims court proceeding against Attorney Lewis.

E

November 2004: Prove-Up Hearing; Default Judgment

The default prove up hearing was conducted in September and October 2004, with testimony provided by Gregory about his understanding of the PMA terms, particularly about the date of valuation of the fair market value increase in the residential property during the marriage. Midway through those proceedings, the trial court ordered a continuance, noting that this was not an ordinary default proceeding. Kristy and her attorney were present in the audience but were not allowed to participate, except at the end regarding inquiries into any settlement talks and access to the file.

The trial court initially entered a judgment of dissolution as to status only and then resolved the reserved issues, including separately listed awards of damages for several different alleged breaches of the PMA. The court interpreted the PMA as requiring that Kristy's separate property interest in the increased value of the residence during the marriage be determined as of the date of separation (January 2002; approximately $23,700), not the date of the prove-up hearing (October 2004; much more, about $200,000). Under the PMA terms, the court also awarded to Gregory a 2001 income tax reimbursement ($3,824), damages for delay caused by Kristy's refusal to cooperate with refinancing the residence ($4,877), damages for Kristy's lack of payment of residential expenses from January 2002-July 2002 ($14,652), and attorney fees for the default proceedings only ($12,700, out of approximately $32,000 requested).

F

December 2004: Kristy's Postjudgment Motions; Denial; Appeal

In December 2004, Kristy sought to have the default and default judgment set aside, or alternatively, to have Gregory ordered to personally serve the amended petition (thus effectively setting aside the default and default judgment). Kristy argued that the default judgment was void because Gregory obtained monetary relief for several alleged breaches of the parties' PMA, which were inadequately pled in the amended petition. Kristy also argued that the default judgment was void because Gregory failed to personally serve the amended petition on Kristy, and that she was entitled to personal service because she was a defaulting defendant, but new relief was being sought. Further, she objected that no box was checked regarding attorney fees. Kristy also sought a new trial, reconsideration of the previous rulings, and her own attorney fees. (§§ 657, 1008; Fam. Code, § 2030.) Evidentiary objections were raised by both sides in the new trial matter and taken under submission.

Kristy's motions were denied, evidentiary rulings issued, and she appeals.

DISCUSSION

Kristy's appeal seeks reversal of both the default judgment and the orders denying relief from default and associated orders. Both parties agree that the legal conclusions drawn by the trial court from the undisputed procedural facts may be reviewed on a de novo basis. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 ["When the decisive facts are undisputed, we are confronted with a question of law and are not bound by the findings of the trial court. [Citation.]"].) The decisive facts here are undisputed, that the amended petition sought different relief from the original petition, by expressly incorporating the parties' PMA. The main issue is whether the notice given to Kristy of the relief sought was adequate under these circumstances, based on the entire sequence of events.

A claim for relief from default may either be based upon alleged voidness of the resulting judgment, or may raise the grounds stated in section 473 to support an order setting aside the default (i.e., mistake, inadvertence, surprise or excusable neglect). (In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 883, fn. 8 (Andresen).) To the extent that our review will also focus upon the trial court's evaluation of the record in denying the motions for relief from default, both those of February 2004 and December 2004, an abuse of discretion standard applies. (In re Marriage of Rhoades (1984) 157 Cal.App.3d 169, 172 [A court's refusal to set aside a default judgment may be evaluated under an abuse of discretion standard; in a dissolution case, only "a very slight showing" can suffice]; Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

To address Kristy's contentions the entry of her default and the default judgment are void on this record due to inadequate pleading and/or service of the amended petition, we next set out rules for pleading different kinds of relief in the family law context, and the notice required to be given. We then outline the facts regarding the nature of her appearance in this case and the taking of her default as shown by the record. These arguments are necessarily interrelated and must be considered together, as none of them is dispositive individually.

I

EVALUATION OF PLEADINGS AND RELIEF REQUESTED:

PETITION AND AMENDMENT

Kristy first contends the default judgment must be overturned because the pleading itself (the amended petition), did not specify the nature of her alleged breaches of the PMA and the relief requested, such as the amounts of damages. She argues the amendments made in September 2002 significantly changed the relief requests of which she had previously been placed on notice at the time of the earlier proceedings, when the case was being litigated by her former counsel from April through June 2002.

In particular, Kristy claims the predefault pleadings, as amended, failed to allege the specific kind and amount of relief ultimately obtained by way of the judgment, and that the trial court erred in awarding relief in excess of what was requested in the original petition. She argues Gregory did not sufficiently plead any breaches of the premarital agreement nor request specific monetary relief, so as to put her on adequate notice of the true consequences of the default. She relies on cases interpreting section 580, such as Andresen, supra, 28 Cal.App.4th 873, 883, as standing for the proposition that an amendment that adds previously unalleged facts to a pleading will serve to open a previously entered default, and will entitle the defendant to renewed personal service of an amended pleading. Otherwise, the default is invalid.^[4]

In Andresen, supra, 28 Cal.App.4th 873, 879-880, the default judgment was held to be proper, because the wife had adequately completed the petition and its necessary attachments to specify the extent of the relief requested on the face of those documents. The court concluded that the record showed the defaulting husband had been given adequate notice that the wife sought a division of the property and liabilities identified in the wife's papers. (Citing In re Marriage of Lippel (1990) 51 Cal.3d, 1160, 1169-1170.) It commented, "If he desired to be heard on the subject of the valuation and division of the listed items, he should have appeared." (Andresen, supra, at p. 880.)

In Andresen, supra, 28 Cal.App.4th 873, 878, the court further explained the governing principles as follows:

"In general, when the defendant has defaulted, the trial court may not grant relief to the plaintiff in excess of that which is demanded in the complaint. (Code Civ. Proc., § 580.) The primary purpose of section 580 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. [Citation.] A defendant who has been served with a lawsuit has the right to be fully apprised of the relief which the complainant is seeking from him or her in order to make an informed decision about whether to appear and defend. (In re Marriage of Lippel[, supra,] 51 Cal.3d 1160, 1166.)"

Kristy would apply this type of analysis to argue that Gregory's addition of the PMA allegations in the amended petition went beyond the normal scope of a petition for dissolution, such that additional personal service of the amendment was required. In general, Kristy makes a valid point about the normal limitations of family law jurisdiction, as outlined in Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339:

"The superior court's jurisdiction in domestic relations cases is limited. It has authority 'to inquire into and render any judgment and make orders that are appropriate' concerning marital status; custody; child and spousal support; settlement of property rights; and attorney fees and costs. (Fam. Code, § 2010.) Rule 1212 of the California Rules of Court in turn limits the relief the parties to a dissolution proceeding can obtain: 'Neither party to the proceeding may assert against the other party or any other person any cause of action or claim for relief other than for the relief provided in these rules or the Family Code.' [¶] Given finite family law jurisdiction, a tort action claiming damages cannot be joined with or pleaded in a dissolution proceeding." (Fn. omitted.)

Also, as set out in California Practice Guide: Family Law (The Rutter Group 2005) paragraph 3:284, page 3-99, "The permissible scope of a status proceeding is limited to an adjudication of dissolution, nullity or legal separation and the rights and obligations arising out of the union (support, custody/visitation, parentage of children born to the parties before their marriage/domestic partnership, property rights, attorney fees and costs). [Citations.] [¶] Other causes of action and claims for relief may not be brought before the family law court by the petition or response. . . . [Citation.]" Again: "In default cases, properly filed and served supplemental pleadings would be required to empower the court to adjudicate and render a binding judgment on new issues not raised in the original pleadings. [Citations.]" (Cal. Practice Guide: Family Law, supra, com. to ¶ 4:194, p. 4-52).)

However, in this case, the added allegations are those of the PMA between the parties, which is generally treated as a contract matter. The parties' resolution of their respective property rights would ordinarily fall within the finite scope of the family law court's jurisdiction. However, the fact remains that the amended pleading in this case changed the nature of the original petition, from seeking a standardized division of property, to an effort to enforce a unique, contractual agreement between the parties. Contractual damages were sought for breach of the PMA, and these do not fall within the scope of the normal family law property division inquiries.

Generally speaking, "A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration. (Family C. 1611; [Citation.].)" (11 Witkin, Summary of Cal. Law (10th ed. 2005) Community Property, § 25, pp. 554-555.) To enforce premarital agreements, the courts will apply concepts derived from contract law. (Ibid.) For example, "The primary defenses that may be raised in an action to enforce an agreement include the following: [¶] (1) Failure to comply with the formalities or other requisites for marital agreements. [Citation.] [¶] (2) Invalid restrictions on the duty to provide child and spousal support. [Citation.] [¶] (3) Involuntary or unconscionable agreements. [Citation.] [¶] (4) A marriage declared void. [Citation.] [¶] (5) Statute of limitations and equitable defenses. [Citation.] [¶] (6) Agreements violating public policy. [Citation.]" (Id. at § 27, pp. 556-557.)

In light of these authorities, we agree with Kristy that the amended petition changed the original allegations "as to a matter of substance" (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 440 (Engebretson)), even though the PMA contractual issues may appropriately be subject to family court treatment and could appropriately be resolved in the family law context, if adequately pled and served. However, we must also seek to determine the effect of Kristy's previous participation in the proceedings during their initial period, through her then-counsel's participation in litigating the restraining orders based on the original petition, from April through June 2002.

II

EVALUATION OF SERVICE AND APPEARANCE:

PETITION AND AMENDMENT

Kristy next claims that the family law court had no jurisdiction to issue the default judgment, due to lack of personal service on Kristy of the amended petition. At the time of the clerk's entry of the default, in January 2003, service by mail of the amended petition had been made upon Kristy's then-counsel, before her withdrawal as counsel became effective. Also, Kristy had apparently been sent a forwarded copy from that counsel's office in September 2002 at her former address. She contends that in light of the changes made in the pleadings, service by mail was ineffective and either the default judgment should be set aside or alternatively, personal service on her should now be ordered.

To address the validity of the service made of the amended petition, Kristy mainly relies on Engebretson, supra, 125 Cal.App.3d 436, 442, in which the following analysis of the consequences of substantially amending a pleading is given, with respect to the adequacy of service upon a defaulting defendant:

"When a complaint is served, the defendant faces the decision to contest the action (perhaps seeking to negotiate a settlement at the same time) or to remain aloof and risk the entry of default. If the defendant fails to appear in the action after valid service of process, it is reasonable to assume the latter course has been chosen. Thereafter, if the complaint is amended in a way which would materially affect the defendant's decision not to contest the action, this new circumstance should be brought home to the defendant with the same force as the notification of the original action [e.g., personal service]." (Ibid.)

Based upon this approach, Kristy argues the amended allegations about the PMA changed the content of the petition significantly enough to make a theoretical difference to any decision to default to the original petition. She therefore contends the trial court erred in allowing a default and default judgment against her, and in refusing to set both aside, since Kristy, a defaulting defendant, was never personally served with the amended petition and only service by mail of the amendment on her [withdrawing] attorney was achieved. In response, Gregory argues that since Kristy had already made a general appearance in the action, her default could be taken based on the service by mail of the amendment on her then-counsel, as adequate at that time. (Engebretson, supra, 125 Cal.App.3d 436, 439-444 [where there was no general appearance by the defendant, personal service was required of an amendment "as to a matter of substance" before a default judgment could be taken].)

We agree with Gregory that Kristy's arguments in this respect overlook the effect of her participation in the initial litigation of the original petition, through her then-counsel's appearance on her behalf in seeking relief on the merits and in seeking a continuance. Even though Kristy did not pay her first appearance fee until the time of the motion to set aside the default, she allowed her then-counsel to represent her and she thereby subjected herself to the personal jurisdiction of the family law court, through a general appearance. The consequences of a general appearance are explained in California Practice Guide: Family Law, supra, paragraph 4.3, page 4-3:

"Respondent's 'general appearance' prior to judgment is a consent to the exercise of personal jurisdiction over him or her in the proceeding, satisfying procedural due process. Thus, respondent's general appearance waives (or, more accurately, forfeits) objections based on lack of personal jurisdiction or defective process or service of process; and orders and judgments in the action may not subsequently be attacked on that ground. [Citations.]"

It must be further noted that "The concept of a general appearance attaches only to the question of personal jurisdiction over respondent. The court's subject matter jurisdiction, in contrast, can never be conferred by party consent; and thus, defective subject matter jurisdiction cannot be waived by a general appearance. [Citation.]" (Cal. Practice Guide: Family Law, supra, ¶ 4.3, p. 4-3.) Also: "A general appearance waives only those defenses predicated on the court's exercise of personal jurisdiction over the appearing party. Other defenses or objections (e.g., lack of subject matter jurisdiction) are preserved notwithstanding a general appearance and may be raised by allegation in the response or appropriate motion." (Id. at ¶ 4.4, p. 4-3.)

Here, we must distinguish between Kristy's general appearance in these proceedings from April-June 2002, and her subsequent failure to file responsive papers. She could properly be subjected to a default for failure to file responsive papers within the meaning of section 1014 or California Rules of Court, rule 5.120,^[5] because her earlier general appearance did not preclude the later entry of default if she failed to follow through on it to participate in the proceedings, by filing responsive papers, and thereby obtaining the right to a contested resolution of the matter on the merits. We explain.

Under section 1014, "A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant."

Rule 5.120(a) specifies in family law matters when a party is "deemed to have appeared in a proceeding," such as "when he or she files: [¶] (1) A response or answer; [¶] (2) A notice of motion to strike, under section 435 of the Code of Civil Procedure; [¶] (3) A notice of motion to transfer the proceeding under section 395 of the Code of Civil Procedure; or [¶] (4) A written notice of his or her appearance." Rule 5.120 continues: "(b) After appearance, the respondent or defendant or his or her attorney is entitled to notice of all subsequent proceedings of which notice is required to be given by these rules or in civil actions generally. [¶] (c) Where a respondent or defendant has not appeared, notice of subsequent proceedings need not be given to the respondent or defendant except as provided in these rules."

Although these provisions set out many specific examples of how a party or defendant may make an appearance in an action, they are not necessarily the exclusive ways of submitting to the court's personal jurisdiction. (Creed v. Schultz (1983) 148 Cal.App.3d 733, 739; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 53-54 and cases cited.) Once jurisdiction is established over a party by way of a general appearance, service by mail is ordinarily allowed for amended pleadings. (Engebretson, supra, 125 Cal.App.3d at p. 441.) The problem here is whether the January 2003 default was properly taken as to Kristy, either as to one or both of the petitions, the original February 2002 petition or the September 2002 amended petition. Clearly, Kristy submitted to the trial court's personal jurisdiction and acknowledged there was subject matter jurisdiction of the original petition when she litigated it in family law court in the summer of 2002. Her default could properly have been taken on the original petition in January 2003, in light of her lack of filing of a responsive pleading by that time.

However, that is not what happened, because Gregory's petition was amended and filed at the 11th hour, September 30, before Kristy's former counsel's withdrawal from representation of her became effective. Strangely, the proof of service by mail on that former counsel states that it was made two weeks earlier, presumably of an unconformed copy. As of the January 2003 entry of default, Kristy had already generally appeared in the action, even though she was now in propria persona as of October 1, 2002.

It makes no difference to Kristy's general appearance status that, as she now argues, her former attorney, Lewis, did not file a response despite allegedly promising to do so, and apparently forwarded the amended petition to Kristy at Gregory's house on Tarantella Lane, even though she knew based on her previous representation that Kristy was no longer at that address. Former Attorney Lewis also failed to indicate in the cover letter accompanying the amended petition that Kristy had thirty days to file a response. Those side issues do not answer the question before us, whether the default entered in January 2003 was appropriate at the time, based on the state of the pleadings, and whether the resulting judgment is void. Kristy cannot rationally claim that the trial court lacked personal jurisdiction over her as of January 2003, the time the default was entered, particularly as to all the issues pled in the original petition, such as marital status. Theoretically, however, she could challenge the family law court's subject matter jurisdiction over the amended petition if its allegations fell outside the scope of the normal family law finite jurisdiction (e.g., any potential tort claims; Sosnick v. Sosnick, supra, 71 Cal.App.4th 1335, 1339).

In any case, since the amended petition brought in the PMA allegations, concerning marital property issues that could ordinarily fall within family law jurisdiction, we must next inquire whether the statutory conditions authorizing entry of the default were satisfied, and whether the trial court had the jurisdictional power to enter Kristy's default when it did so. If the default "was valid on the face of the record at the time of its entry, it is not void now. [Citations.]" (Andresen, supra, 28 Cal.App.4th 873, 883-884.)

Moreover, a default judgment can be valid in some respects and not others, as explained in Andresen, supra, 28 Cal.App.4th 873, 886. There, the court interpreted In re Marriage of Lippel, supra, 51 Cal.3d 1160, 1167 as allowing a reviewing court to correct or modify a judgment which contains an unauthorized provision, based on "the principle that the judgment exceeds the trial court's jurisdiction solely to the extent the relief awarded by the judgment surpasses the allegations of the complaint." (Andresen, supra, at p. 886.) Under this authority, we seek to determine the extent of the enlargement of the issues by the amended petition, in order to analyze the validity of the default judgment, in light of Kristy's previous general appearance in the action.

III

APPLICATION AND ANALYSIS

Having rejected Kristy's first two specific arguments on appeal, as above, we now turn to a slightly different analysis: Whether the trial court abused its discretion when it refused to set aside the default and default judgment. We consider the validity of both the default judgment and the trial court's denial of the motions for relief, based upon the showings before it regarding both the pleadings filed and the service and appearances made. We also note that the record contains Kristy's proposed response to be filed on the merits, which does not contest the status issue, and which alleges that a marital settlement agreement could be reached concerning the division of property issues, but without mentioning the PMA.

Rule 5.122 provides the procedure for entry of defaults and default judgments in family law matters: "(a) Upon proper application of the petitioner, the clerk must enter the respondent's default if the respondent or defendant fails within the time permitted to: [¶] (1) Make an appearance as set forth in rule 5.120; [¶] (2) File a notice of motion to quash service of summons under section 418.10 of the Code of Civil Procedure; or [¶] (3) File a petition for writ of mandate under section 418.10 of the Code of Civil Procedure. [¶] (b) The petitioner may apply to the court for the relief sought in the petition at the time default is entered. The court must require proof to be made of the facts stated in the petition and may enter its judgment accordingly."

As we have already discussed, Kristy's 2002 general appearance in the action to litigate the mutual restraining orders, through counsel, did not exactly fit these rule criteria for making an appearance under rule 5.120, but nevertheless, her appearance through counsel was clearly sufficient to enable the court to issue relief on the merits as to her. Based on the state of the original petition, she could have reasonably believed that Gregory had decided to forego enforcement of the PMA terms, and she could have made a decision to go into default and to submit the matter on the allegations of the original petition, which did not invoke the PMA.

Ultimately, the proposed move-out stipulation and mutual restraining orders were rejected by the clerk due to the lack of payment of Kristy's first appearance fee, which led to Gregory's counsel's request to enter her default. However, it is clear that the amendment of the petition, by adding the PMA breach allegations, enlarged the issues to which Kristy had previously responded, and Gregory's service by mail on her soon-to-be former counsel of an unconformed copy of the amended pleading could legitimately have led to confusion on her part and the part of the former counsel's office (who forwarded it to Kristy at Gregory's address), about what issues were actually before the family law court. This manner of service of the amended petition does not provide sufficiently strong support for the default.

In light of all the circumstances of the case, we think that the trial court abused its discretion in denying relief from default, both at the February 2004 and the December 2004 motion proceedings. Although it can readily be concluded that Kristy was not sufficiently diligent in protecting her own rights, that is not the only issue to be considered; the trial court should also have more fully assessed the state of the pleadings and the state of service and the appearances, in light of the evident confusion inherent in the withdrawal of Kristy's counsel, which occurred shortly after that counsel obtained an agreement that Kristy would leave Gregory's residence on July 1, 2002. However, the same former counsel nevertheless continued to serve and forward dissolution papers and withdrawal of attorney papers on her at her estranged husband's address, apparently without any sufficient investigation of Kristy's current whereabouts and telephone numbers, and therefore without any reasonable basis to believe that she would actually be receiving these important papers. Also, former counsel evidently failed to notify Kristy that a response was due, even though that would have been a more reasonable interpretation of the requirements of obtaining leave to withdraw as counsel (notification of any additional hearings or other proceedings scheduled in the case).^[6]

Accordingly, we conclude that the January 2003 default was valid as to the marital status issue, which was originally pled and which was not ever disputed in any realistic way; at the default prove-up hearing, the trial court granted dissolution as to status. Gregory had the right to have this particular relief as demanded in the original petition. (§ 580.) In further proceedings, the status portion of the default should not be deemed to be reopened. (Andresen, supra, 28 Cal.App.4th at p. 886.)

However, the alleged breaches of the PMA had not been properly brought before the court in the original petition, with respect to issues such as the time of the valuation of the fair market value increase of the residence, the income tax reimbursement requested, the damages for alleged delay in refinancing, and the like. At the time Kristy went into default, after generally appearing but failing to timely file a responsive pleading, the issues did not include the PMA breaches, and the standard form property division allegations were too general in nature. Before she was adequately placed on notice for default purposes that the PMA was before the family law court, through the amended petition, she was without counsel, who had withdrawn from representation, leaving a number of loose ends to tie up. Kristy cannot reasonably argue, however, that her January 2003 entry of default was "reopened" by this September 2002 amended pleading, because the default postdated the amendment. Nor can she claim any existing right to personal service of the amended pleading, merely because it added new allegations, since she had already generally appeared in the case. (Engebretson, supra, 125 Cal.App.3d at pp. 440-444.) Instead, to analyze the validity of the default, the operative time to evaluate the state of her notice of Gregory's claims was the time of her general appearance, when the original petition was still in effect. There is no reason why the amendment of the petition should change her appearance and default status, except as to the substantially new allegations.

Accordingly, the portions of the default judgment that award damages for breach of the PMA are void because they give Gregory greater relief, in both nature and amount, than he had requested in his original petition, of which Kristy had been placed on notice at the time of her general appearance. (See Andresen, supra, 28 Cal.App.4th 873, 886.) The orders denying relief from default must be reversed in part with directions to the trial court to allow Kristy to file her response forthwith and to allow further appropriate proceedings on the property settlement, PMA, and related issues, exclusive of marital status.

IV

REMAINING ISSUES ON REMAND

In light of the conclusions reached above, it is unnecessary for this court to discuss Kristy's further arguments regarding the denial of her new trial motion or her reconsideration motion. We also decline to issue the requested ruling that the case should be reassigned to another judge upon remand (due to alleged prejudging of the PMA issues), as the reversal is an open reversal, except as specified above (status). New evidence may be presented at further proceedings, to litigate the issues regarding property division and the proper interpretation of the PMA, in light of any admissible extrinsic evidence as will be determined by the trial court anew. In any case, Kristy has not shown any proper grounds for disqualification of the trial judge, and we are confident that these further proceedings may appropriately be conducted by any assigned judge as ordinarily would be determined by the presiding department, potentially including the current trial judge, in accordance with the principles set forth in this opinion.

DISPOSITION

The judgment and orders are reversed in part with directions to the trial court to allow the response to be filed forthwith and to conduct further appropriate proceedings on the division of property issues, the PMA, and the attorney fees issues, in light of the allegations of the amended petition and the response to be filed. Both parties are to pay their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All further statutory references are to the Code of Civil Procedure unless noted.

^[2] Kristy paid a $2,500 retainer fee to Attorney Lewis, but apparently no provision was made to pay costs such as filing fees for any response, which was never filed.

^[3] Kristy's reply brief contains a reference to a motion to strike Attorney Lewis's declaration (based on alleged breach of attorney-client privilege), but no such motion has been adequately briefed nor would it be well taken, as that material was properly included in this record.

^[4] Section 580, subdivision (a) provides in part: "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he or she shall have demanded in his or her complaint or in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue."

^[5] All further rules references are to the California Rules of Court.

^[6] At the February 2004 hearing, the trial court took judicial notice of the small claims appeal reporter's transcript as a means of determining that Kristy was more at fault than was her former counsel in the underlying proceedings. Kristy raised evidentiary objections on this point, which were overruled. The record does not currently establish that the small claims appeal result creates any res judicata or collateral estoppel effect on the issues of fault on Kristy's or her former attorney's part, and we note that those issues have not been briefed or argued in any meaningful way. However, on this entire record, we are able to say that the trial court should have exercised its discretion to allow relief from default, and that evidentiary ruling is not to the contrary or dispositive in any way. Accordingly, we need not examine its propriety and leave the matter open for any relitigation in any further proceedings as appropriate.