County of Orange v. Dishman

Filed 2/28/07 County of Orange v. Dishman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Lon F. Hurwitz, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed.

Bill Lockyer, Attorney General, Thomas R. Yanger, Assistant Attorney General, Paul Reynaga and Sharon Quinn, Deputy Attorneys General, for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

The County of Orange (the County) appeals from the trial courts order granting, based on principles of fairness, Kip Robert Dishmans second motion to vacate a stipulation and order establishing paternity and requiring child support of Frank C. The County argues the court erroneously granted the motion because: (1) Family Code section 7645 et seq.,[1] provides the comprehensive statutory framework for vacating a paternity judgment; (2) the principle of res judicata prevents Dishman from relitigating his motion; (3) there was no evidence of extrinsic fraud; and (4) the County, despite public policy concerns to the contrary, is required to follow existing law. Dishman did not file a respondents brief.

As we explain below, we conclude the trial court abused its discretion in granting the motion to vacate based on principles of fairness because section 7645 et seq., provides the comprehensive statutory framework for vacating a paternity judgment, Dishman did not file his motion within the statutorily required period, and there was no evidence of extrinsic fraud. We reverse the order.

FACTS

In September 1991, the Orange County Family Support Division[2] filed a complaint to establish paternity naming Dishman as the father of Frank, a minor born in July 1991. The complaint requested Dishman be ordered to pay child support for Frank.

In November 1991, Dishman stipulated he was Franks father and agreed to pay monthly child support in the amount of $256. Dishman was advised of his right to a trial on the issue of Franks paternity, to be represented by an attorney during the paternity proceedings at no cost, and to have a blood test performed to exclude him as Franks father. He freely and voluntarily waived these rights. The trial court found [Dishman] willingly, knowingly[,] and intelligently waived his . . . due process rights in agreeing to the entry of . . . judgment. The court approved the stipulation and adopted it as its order. The court also ordered a wage and earnings assignment of Dishmans wages for monthly child support.

In April 1999, approximately seven and one-half years later, Dishman filed a request for hearing regarding notice of wage and earnings assignment asking the trial court to recall the earnings assignment and terminate child support. His request was based on an April 1995 Long Beach Genetics test (the 1995 test) finding he was not Franks father.

The next month, the Department opposed Dishmans request arguing the paternity issue was res judicata because Dishman stipulated he was Franks father in 1991. With the help of a family law facilitator, Dishman answered the September 1991 complaint. Based on the 1995 test, he denied being Franks father and requested a blood test.

The following month, Dishman filed a motion to vacate the judgment of paternity on equitable grounds. In his declaration in support of the motion, Dishman stated that after the Department filed the September 1991 complaint, he signed the stipulation because the mother, Teresa C., now Teresa L.,[3] told him she was pregnant and he was the father. Dishman stated he was nave and trusted her because

they were high school sweethearts and he was only 19 years old. He explained they lived together from 1992 to 1994, at which point they ended their relationship and L. and Frank moved to Kern County. He said after L. moved, the Kern County District Attorney filed a complaint to establish paternity, but the 1995 test excluded him as the father, and the district attorney dismissed the petition. Dishman claimed he had not seen L. or Frank since 1994, and he was not aware the Department maintained an open case against him because it had not contacted him since 1991.

The next month, the Department opposed Dishmans motion. It argued the motion was untimely and there was no evidence the stipulation was procured by extrinsic fraud. Dishman replied. The trial court heard argument and denied the motion.

Nearly six years later, in March 2005, Dishman filed another request for a hearing regarding the earnings assignment. Dishman requested the earnings assignment be modified because the 1995 test proves he is not Franks father, his work hours vary each week, and Riverside County takes $354 per month in child support. The Department responded Dishman had not filed the proper paperwork to establish he is not Franks father and requested the trial court determine the total child support arrears Dishman owed. The trial court stayed collection of the support arrears and continued Dishmans request for relief from the earnings assignment.

In May 2005, Dishman filed another motion to vacate the stipulation and order on the grounds of equity and fundamental fairness. Dishman stated he filed the motion within two years of the effective date of the recently enacted paternity set aside legislation. ( 7646, subd. (a).) He recited the same facts as he had in the June 1999 motion, except Dishman stated he had not seen L. or Frank since sometime in 1992. Dishman requested the trial court vacate the 1991 stipulation and order based on section 7646, equitable grounds, and County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246 (Navarro).

The Department opposed the motion. It argued Dishman failed to establish the stipulation was procured through extrinsic fraud and section 7646 superseded Navarro.

At the June 2005 hearing, the trial court found Dishman established a prima facie case he was not Franks father and ordered Dishman, L., and Frank to submit to genetic testing.

At the August 2005 hearing, the Department advised the court genetic testing excluded Dishman as Franks biological father. The trial court found Dishman was not Franks father and continued the matter for a [b]est [i]nterest hearing. At the [b]est [i]nterest hearing[,] Dishman and L. testified (L. stated the court should grant Dishmans request), and the court took the matter under submission. After the hearing, the Department filed a brief opposing vacating the 1991 paternity judgment.[4] The court granted Dishmans motion finding continued enforcement of the child support obligation would be fundamentally unfair. The County appealed.[5]

DISCUSSION

Trial Court Ruling

Because we are reviewing the trial courts order vacating the paternity judgment, we will include, in relevant part, the courts ruling. The court acknowledged the motion was Dishmans second attempt at vacating the 1991 paternity judgment.[6] The

court explained Dishman lived with L. and Frank until 1994, and after being served with a paternity complaint, the 1995 test excluded him as Franks father. The court provided the factual and procedural history of Dishmans first motion to vacate the paternity judgment.

Turning to the motion before it, the court stated there was no dispute

(1) Dishman had no involvement with Frank after 1994, when Frank was approximately two years old; and (2) Dishman was not Franks biological father. The court explained Dishmans motion was based on the then recently decided case, Navarro, supra,

120 Cal.App.4th at pages 249-250, where the court reversed a default judgment of paternity on facts similar, though not identical, to the facts here based on principles of fairness. The court then described the Departments response that the Legislatures recent enactment of section 7646 and its deadlines for filing a motion to vacate a paternity judgment supersedes Navarro.

The court, in rejecting the Departments position, stated the Legislature did not disapprove of Navarro in section 7645 et seq., and Navarro specifically rejected a statutory scheme which would have produced an unjust result. The court stated: [The Department], despite uncontroverted evidence that [Dishman] is not the father and has had no contact with [Frank] since 1994, wishes to continue to seek child support from him for no other reason but that the statutes within which he should have done something have run; not because he is the father; not because he has established a relationship with this child; not because he has an ethical or moral obligation to support this child-he should pay because the statute has run. This renders [the Departments] position as no different than the Countys position in Navarro-it is asking the [c]ourt to assist it in enforcing a [j]udgement it knows to be unfounded[.] [] . . . [] Allowing the continued enforcement of a child support obligation in this case would, in this [c]ourts opinion, undermine the public perception of our judicial system and of its goal of fundamental fairness. The court granted Dishmans motion to vacate the paternity judgment.

Standard of Review

The County claims that although the trial court has considerable deference in ruling on a motion to vacate a judgment, we must review the trial courts ruling

de novo because it is a matter of statutory interpretation. We disagree that we are concerned solely with an issue of statutory construction. As we explain below, the issue here is whether the trial court erroneously granted Dishmans motion to vacate the paternity judgment based on equitable principles.

The motion to set aside the judgment was addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse of discretion the courts order will not be disturbed on appeal. [Citation.] (County of Alameda v. Mosier (1984) 154 Cal.App.3d 757, 760; In re Margarita D. (1999) 72 Cal.App.4th 1288, 1294-1296.) We do agree with the County, however, [t]he trial courts exercise of discretion must be guided, however, by fixed legal principles, and must be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citation.] (In re Marriage of Varner (1997)

55 Cal.App.4th 128, 138.) We will review the Countys contentions with these principles in mind.

Navarro, Section 7646, and Sanchez[7]

The County argues the trial court erroneously granted Dishmans motion to vacate the paternity judgment because (1) section 7646 provides the comprehensive statutory framework for vacating a paternity judgment and it does not afford Dishman relief; and (2) section 7646 supersedes Navarro. We agree with both contentions.

After the trial court denied Dishmans first motion to vacate the paternity judgment, the Court of Appeal, Second Appellate District, Division Eight filed its

decision in Navarro, supra, 120 Cal.App.4th 246. In Navarro, a default judgment of paternity was entered against Navarro. Navarro denied paternity, and he had no relationship with the children. Five years later, Navarro moved to vacate the judgment because a recent genetic test performed in a separate paternity action conclusively proved that he was not the father. The County of Los Angeles conceded the error, but nevertheless opposed Navarros motion. (Navarro, supra, 120 Cal.App.4th at p. 248.) The Navarro court acknowledged that by strict application of the law, Navarro should be denied relief. The motion to vacate the default was untimely and the mothers false assertion that Navarro was the father did not constitute extrinsic fraud. Nevertheless, the court reversed the trial courts order denying Navarros motion. The Navarro court concluded that [s]ometimes even more important policies than the finality of judgments are at stake . . . . (Navarro, supra, 120 Cal.App.4th at p. 249.) The court noted that it is this states policy to correct mistakes in child support actions, not exploit them, and [t]he County, a political embodiment of its citizens and inhabitants, must always act in the public interest and for the general good. Accordingly, the court refused to assist the County in its effort to enforce a child support judgment the County knew to be unfounded. (Ibid.) Rather, the Navarro court decided it would not sully [its] hands by participating in an unjust, and factually unfounded, result. (Id. at pp. 249-250.)

Approximately four months later, the California Legislature enacted Assembly Bill 252, which added section 7646. Section 7646, subdivision (a), states: Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established mother of a child, the previously established father of a child, the child, or the legal representative of any of these persons if genetic testing indicates that the previously established father of a child is not the biological father of the child. The motion shall be brought within one of the following time periods: [] (1) Within a two-year period commencing with the date on

which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision. [] (2) Within a two-year period commencing with the date of the childs birth if paternity was established by a voluntary declaration of paternity. Nothing in this paragraph shall bar any rights under subdivision (c) of [s]ection 7575. [] (3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period commencing with the enactment of this section.

After the Navarro decision was filed and the California Legislature enacted section 7646, Dishman filed his second motion to vacate the paternity judgment. As we explain above, the trial court granted the motion based on its reading of Navarro. As we explain anon, we conclude section 7645 et seq., provides the comprehensive statutory scheme for vacating a paternity judgment, and it limits Navarro. Additionally, section 7646 does not afford Dishman relief from the paternity judgment.

We recognize Sanchez, supra, 135 Cal.App.4th 15, was decided approximately one year after the proceedings here and the trial court did not have the benefit of its reasoning. We find it persuasive on the issue of the interplay between section 7645 et seq., and Navarro. In Sanchez, the Court of Appeal, Fifth Appellate District explained that less than four months [after Navarro], a statutory remedy for such unjust, and factually unfounded results was added to the Family Code. ( 7645, et seq.) This article sets forth the procedure for setting aside or vacating a judgment establishing paternity, [n]otwithstanding any other provision of law. ( 7646, subd. (a).) Essentially, within a two-year period commencing with the established fathers knowledge of the judgment, the childs birth if there was a voluntary declaration

of paternity, or the effective date of this section if there was a default judgment, the established father can move to set aside or vacate the judgment of paternity if genetic testing indicates that he is not the biological father of the child. ( 7646.) The legislation also includes specific requirements for granting the motion and factors to be considered in determining whether, despite the genetic test, denial of the motion is in the best interest of the child. ( 7647[,] 7648.) []In light of this comprehensive statutory scheme for setting aside a judgment of paternity when otherwise established procedural rules would not permit relief, it must be concluded that section 7645, et seq., vitiates . . . Navarro. The amorphous equitable considerations and general policies relied on in Navarro must give way to the later enacted detailed procedure. Accordingly, this court cannot rely on Navarro to grant appellant relief. (Sanchez, supra, 135 Cal.App.4th at pp. 19-20.)

The Sanchez court relied on section 7646, subdivision (a)s language [n]otwithstanding any other provision of law to conclude the Legislature intended it be the comprehensive statutory scheme for vacating a paternity judgment. Additionally, [n]otwithstanding any other provision of law has a specific legal meaning. [I]t is considered an express legislative intent that the specific statute in which it is contained controls in the circumstances covered by that statute, despite the existence of some other law which might otherwise apply to require a different or contrary outcome. [Citations.] (Souvannarath v. Hadden (2002) 95 Cal.App.4th 1115, 1125-1126; 3B Singer, Sutherland Statutes and Statutory Construction (6th ed. 2006) Environmental Protection in the States, 77:6, p. 279.) It has been interpreted as referring to both statutory and decisional authority. (People v. Tillman (1999) 73 Cal.App.4th 771, 784-785; In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, fn. 3.) Based on our reading of section 7645 et seq., and Sanchez, we conclude the Sanchez courts reasoning that section 7646 limits Navarro is persuasive. (In re Marriage of Perez (1995)35 Cal.App.4th 77, 81 [when the rules are covered by statute, equity does not apply].) Therefore, the trial court abused its discretion in granting Dishmans motion to vacate the paternity judgment based on Navarro.

Section 7646 does not afford Dishman relief. Subdivision (a)(1), allows a previously established father to file a motion to vacate a paternity judgment within two years of when he knew or should have known of a judgment that established him as the father of the child[.] Here, Dishman filed his first motion to vacate the paternity judgment in June 1999, over seven years after the paternity judgment, and over four years after the 1995 test excluded him as Franks father. Although the Legislature enacted section 7646 in September 2004, and Dishman filed his second motion within two years of its enactment, Dishman was not diligent in seeking relief after the 1995 test excluded him as Franks fatherhe waited over four years to file his first motion to vacate the paternity judgment.

Section 7646, subdivision (a)(2), allows a previously established father to file a motion to vacate a paternity judgment within two years of the date of the childs birth if paternity was established by a voluntary declaration of paternity. Here, Frank was born July 11, 1991. Again, Dishman filed his first motion to vacate the paternity judgment in June 1999, over seven years after Frank was born. Additionally, section 7570 et seq., authorizes voluntary declarations of paternity for live births occurring after January 1, 1995; Frank was born in 1991. Finally, Dishman did not voluntarily declare paternity before L. left the hospital as section 7571 requires. Dishman stipulated to paternity after the Department filed a paternity complaint.

Section 7646, subdivision (a)(3), allows a previously established father to file a motion to vacate a paternity judgment entered by default within two years of the enactment of section 7646. Here, the paternity judgment was not entered by default, and section 7646 does not afford Dishman relief. Therefore, the trial court abused its

discretion in granting Dishmans motion to vacate the paternity judgment based on Navarro because section 7645 et seq., provides the comprehensive statutory framework for vacating a paternity judgment and it limits Navarro.

Extrinsic Fraud

The County also contends there was no evidence of extrinsic fraud. We agree.

After the time for ordinary direct attack has passed [citation], a party may obtain relief from an erroneous judgment by establishing that it was entered through extrinsic fraud or mistake. [Citations.] To warrant relief on this ground, the moving party must establish: (1) facts constituting extrinsic fraud or mistake; (2) a substantial defense on the merits; and (3) diligence in seeking relief from the adverse judgment. [Citation.] (Warga v. Cooper (1996) 44 Cal.App.4th 371, 376.)

Under limited circumstances, a court can exercise its inherent equitable power and vacate a valid final judgment on the ground of fraud. (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1066 (Cartagena).) A court may only vacate a judgment on the ground of extrinsic fraud, as opposed to intrinsic fraud. (Id. at p. 1067.) Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court[,] where he was kept ignorant of the proceedings, or where he was fraudulently prevented from fully participating in the proceeding[s][] by some manner unrelated to his own conduct. (Ibid.) Examples of extrinsic fraud include [k]eeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed, corruptly sells out his clients interest. [Citations.] (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 633; Cartagena, supra, 35 Cal.App.4th at p. 1067.) The essence of extrinsic fraud is one partys preventing the other from having his day in court. (Cartagena, supra, 35 Cal.App.4th at p. 1067.)

Intrinsic fraud, by contrast, is fraud which is intrinsic to the trial of the case itself. [Citation.] (Cartagena, supra, 35 Cal.App.4th at p. 1067.) Intrinsic fraud involves the merits of the issues raised in the prior proceeding which led to the judgment under attack. If the party seeking to vacate the judgment had notice of the prior proceeding and had an opportunity to present his case, but unreasonably failed to protect himself against his adversarys fraud or failed to take advantage of liberal discovery policies to fully investigate his . . . claim, any fraud is intrinsic fraud. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1069; see Cartagena, supra, 35 Cal.App.4th at

pp. 1067-1068.) Thus, it is not enough to claim a prior judgment is based on false facts. A mothers false assertion a particular man is the father of her child is not the sort of falsehood the doctrine [of extrinsic fraud] encompasses. [Citation.] (Navarro, supra, 120 Cal.App.4th at p. 249; see Cartagena, supra, 35 Cal.App.4th at p. 1068; cf. Brown v. Superior Court (1979) 98 Cal.App.3d 633, 636 [blood tests establishing paternity irrelevant to showing of whether or not there was extrinsic fraud].) Such a false assertion goes directly to the issue of paternity intrinsic to the case, an issue the purported father could have explored and resolved within the context of the proceedings. A mothers false assertion of paternity simply does not amount to extrinsic fraud, and cannot be used as a ground to vacate a judgment. (Cartagena, supra, 35 Cal.App.4th at p. 1068.)

Here, Dishman stipulated to paternity because L. told him he was Franks father. Dishman trusted L. because they were high school sweethearts and he was 19 years old and nave. These facts are not enough to establish extrinsic fraud because L. did not prevent Dishman from having his day in courthe was not denied the opportunity to contest paternity. Instead, when the Department served Dishman with the paternity complaint, he stipulated to being Franks father. Although Dishman was trying to do the right thing, he did not contest paternity in 1991, and principles of

extrinsic fraud do not provide him relief from L.s intrinsic fraud. And, as we explain above more fully, the Legislature did not provide Dishman relief when it enacted section 7646.

DISPOSITION

The order is reversed. In the interests of justice, the County shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(4).)

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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[1] All further statutory references are to the Family Code, unless otherwise indicated.

[2] Before 2000, the district attorneys family support division was charged with enforcing child support orders. After 2000, the duty was transferred to statutorily mandated county departments of child support services. ( 17304.) We refer to them collectively as the Department, unless the context indicates otherwise.

[3] Teresa L. did not file a brief in this court.

[4] In its brief, the Department noted Dishman has been making child support payments since 1992.

[5] This matter is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(10), and section 17407, subdivision (a). (County of Lake v. Palla (2001) 94 Cal.App.4th 418, 421.)

[6] Code of Civil Procedure section 1008 authorizes a party to make a subsequent application for the same order based upon new law.

[7]County of Fresno v. Sanchez (2005) 135 Cal.App.4th 15 (Sanchez).