Opinion
G053982
03-27-2018
SCOTT C. ELLENSON, Petitioner and Appellant, v. KAPRI HECKERMAN, Objector and Respondent.
Nakahara & Wasserman and Larry M. Nakahara; Broedlow Lewis and Jeffrey Lewis for Petitioner and Appellant. Serbin & Carmeli and Michele Carmeli for Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. A245304) OPINION Appeal from an order of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Reversed and remanded. Nakahara & Wasserman and Larry M. Nakahara; Broedlow Lewis and Jeffrey Lewis for Petitioner and Appellant. Serbin & Carmeli and Michele Carmeli for Objector and Respondent.
Scott C. Ellenson and Kapri Heckerman are the divorced parents of their adult son, B.E. B.E. is mentally and physically disabled. In 2008, Scott and Kapri settled a contested conservatorship proceeding over B.E. by agreeing to the entry of a negotiated order (2008 order) appointing Scott and Kapri as B.E.'s co-conservators and establishing a custody schedule. The 2008 order also contained a provision that one parent would pay the other parent a $250 daily payment for non-compliance with the custody and visitation schedule (per diem provision).
For ease of reference, we refer to the parties by their first names and intend no disrespect.
In 2015, Scott filed a petition to enforce the per diem provision for Kapri's failure to assume custody of B.E. for 113 days (2015 petition). The trial court denied Scott's petition. Scott contends the order denying enforcement of the 2015 petition (2015 order) should be reversed. He argues the 2008 order was a final order not subject to collateral attack, the court had jurisdiction to enforce the 2008 order, and the court's factual finding of impossibility had no application in proceedings to enforce the 2008 order. We agree. While we are sympathetic to Kapri's situation, we reverse the 2015 order. The matter is remanded with directions to grant Scott's 2015 petition.
FACTS
Scott and Kapri are B.E.'s biological parents. B.E. is mentally and physically disabled. He has a brain tumor and a seizure disorder. He is nonambulatory and nonverbal, and requires substantial assistance with his daily activities. It is not safe to leave B.E. without a caregiver.
Scott and Kapri divorced in 1998. In 2007, Scott and Kapri filed competing conservatorship proceedings, each seeking to be B.E.'s sole conservator. In 2008, the parties negotiated a settlement of the contested conservatorship proceedings that was reflected in the 2008 order. The 2008 order appointed Scott and Kapri as co-conservators of the person over B.E., established a custody schedule, and contained the per diem provision. The per diem provision stated: "If Scott, Kapri, or a grandparent fails to take custody of B.E. on a scheduled visitation day that is assigned to that parent or grandparent, then the defaulting parent, or the child of the defaulting grandparents, shall pay the other parent the sum of $250.00 per day for the days the non-defaulting parent continues to care for B.E., payable in thirty (30) days from the date of default." Neither party filed an appeal of the 2008 order.
From 2008 through September 2012, the parties complied with the terms of the custody and visitation schedule set forth in the 2008 order. At the end of September 2012, Kapri filed a petition to modify the visitation schedule. In March 2013, the parties agreed to modify the visitation schedule. Under the new schedule, Kapri had custody of B.E. from May 1 to June 30, from September 10 to November 10, and from approximately December 20 to January 4 each year. Scott maintained custody of B.E. at all other times. The modified visitation schedule was approved by the court in May 2013. The court's order stated "[e]xcept as otherwise provided or inconsistent with the provisions herein, all provisions of the [2008 order] shall continue in full force and effect." The per diem provision was not modified. The order also stated the intent of the settlement agreement was "to resolve, in its entirety, the [p]etition filed by Kapri on September 21, 2012."
Beginning in September 2013, Kapri failed to take B.E. to her Montana home in accordance with the revised visitation schedule on several occasions. During this time, Kapri alleged she and her new husband suffered injuries rendering them unable to assist in B.E.'s care. She also claimed her mother's health issues prevented her from taking custody of B.E.
In March 2015, Kapri petitioned for sole custody of B.E. in Montana. Scott then filed the 2015 petition, which sought to enforce the per diem provision contained in the 2008 order. Kapri resigned as conservator, and Scott was appointed sole conservator. The court denied Scott's 2015 petition.
DISCUSSION
I. The 2008 Order Was a Final Order Not Subject to Collateral Attack
Scott argued the trial court erred by denying the 2015 petition because it was an impermissible collateral attack of the 2008 order. We review the trial court's determination the per diem provision was an unenforceable penalty de novo. (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1355.) Finding legal error, we reverse.
Orders appointing conservators are appealable. (Prob. Code, § 1301, subd. (a); Conservatorship of Sanderson (1980) 106 Cal.App.3d 611, 613, fn. 1 ["An order appointing a conservator is an appealable order"].) "'A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.' [Citation.] A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. [Citation.] In contrast, a judgment is valid but voidable if it is the result of the court's failure to follow proper procedure. [Citation.]" (Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98.) Thus, "[t]he key question in the case at bench is whether the [alleged] error, appearing on the face of the judgment [or in the judgment role], [would render] the judgment void . . . as being beyond the jurisdiction of the court, and subject to collateral attack, or [would simply render] the judgment erroneous - - not void - - but within the jurisdiction of the court, and free from collateral attack." (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 844.)
Here, the trial court had subject matter and personal jurisdiction over the parties when it entered the 2008 order containing the per diem provision. Neither party appealed the 2008 order. Because it was never set aside by appeal or motion for relief under Code of Civil Procedure section 473, an action to prevent enforcement of the order is an impermissible collateral attack.
Kapri argues the court lacked authority to order enforcement of what amounts to an illegal liquidated damages provision. Assuming without deciding the per diem provision was an unenforceable liquidated damages penalty, the 2008 order was merely voidable, not void. (See Estate of Buck (1994) 29 Cal.App.4th 1846, 1855.) Kapri's argument the 2008 order violated rules against contractual penalties may have been a colorable argument on direct appeal. Kapri, however, did not appeal the 2008 order. Nor did she file a motion to set aside the 2008 order as provided by Code of Civil Procedure section 473. Instead, more than seven years passed before Kapri tried to set the per diem provision aside.
Kapri next claims the 2008 order was not a conclusive order, and therefore is subject to collateral attack. We disagree. The 2008 order appointed B.E.'s co-conservators and approved the settlement agreement between the parties. The parties stated their intent in settling was to resolve the matter in its entirety. So while the court may have maintained continuing jurisdiction over conservatorship proceedings, the 2008 order was a conclusive, appealable order. To hold otherwise would open the door for collateral attacks on all types of court orders. We decline to do so.
Finally, Kapri asserts the per diem provision in the 2008 order was an illegal forfeiture provision that could not be made legal simply by including it in a settlement agreement. In support of her claim, Kapri cites Timney v. Lin (2003) 106 Cal.App.4th 1121. Timney involved an action arising from a real estate transaction. (Ibid.) The prospective buyers and sellers of a home entered into a written settlement agreement, which included a forfeiture provision. (Id. at p. 1124.) The provision allowed for the forfeiture of the buyers' deposit, without regard to damages, if buyers did not deposit a quitclaim deed in escrow within five days of the closing date of the transaction. (Ibid.) The buyers could not secure financing and took timely steps to cancel the escrow. (Ibid.) Due to the September 11, 2001, terror attacks, however, the quitclaim deed was late. (Id. at pp. 1124-1125.) Sellers moved to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6. (Id. at p. 1125.) The trial court granted the sellers' motion to enforce the settlement, permitting sellers to retain buyers' deposit. (Ibid.) The Court of Appeal reversed the trial court's order and remanded the matter with instruction to issue a new judgment invalidating the forfeiture provision and ordering the sellers to return the buyer's deposit. (Id. at pp. 1129-1130.)
We do not disagree with the Timney court. In Timney, the court considered a direct appeal of a motion to enforce a settlement agreement as to the forfeiture provision. (Id. at pp. 1125-1126.) The only issue was whether the forfeiture provision was legal. (Ibid.) Here, however, Kapri seeks to appeal not the 2008 order approving the parties' settlement, but rather a different petition filed seven years later. Because Kapri failed to appeal the 2008 order, Timney is not persuasive. We reverse the 2015 order because it was based upon an impermissible collateral attack on the 2008 order.
Because we determine the 2015 order was an impermissible collateral attack on the 2008 order, we need not review the trial court's finding of impossibility.
II. The Trial Court Had Jurisdiction to Enforce the 2008 Order
Scott argues the 2015 order should be reversed because the trial court had jurisdiction to enforce the provisions of the 2008 order. The trial court's conclusion it lacked jurisdiction is a question of law reviewed de novo. (Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774.) We determine the court had jurisdiction to enforce the provisions of the 2008 order.
We note Kapri's brief does not argue the trial court lacked jurisdiction.
The trial court's statement of decision denying Scott's 2015 petition concluded it did "not have jurisdiction to enforce" the per diem provision. The court also determined such relief was barred because "[p]arents' support obligations as to adult disabled children are addressed by the Family Code. (Fam. Code §§ 270, 3028.)"
All further statutory references are to the Family Code, unless otherwise indicated.
Under section 3028, a parent may apply to the court by noticed motion for reimbursement of additional childcare costs incurred when the other parent "fails to assume the caretaker responsibility" contemplated by a custody agreement, or thwarts the moving parent's attempts to exercise court-ordered custody rights. (§ 3028.) Section 3028, which is contained in Part 2 of Division 8, only applies to the limited situations enumerated in section 3021. We see no argument as to how section 3028 would concern this situation.
"This part applies in any of the following: (a) A proceeding for dissolution of marriage. (b) A proceeding for nullity of marriage. (c) A proceeding for legal separation of the parties. (d) An action for exclusive custody pursuant to [s]ection 3120. (e) A proceeding to determine physical or legal custody or for visitation in a proceeding pursuant to the Domestic Violence Prevention Act (Division 10 (commencing with [s]ection 6200)). In an action under [s]ection 6323, nothing in this subdivision shall be construed to authorize physical or legal custody, or visitation rights, to be granted to any party to a Domestic Violence Prevention Act proceeding who has not established a parent and child relationship pursuant to paragraph (2) of subdivision (a) of [s]ection 6323. (f) A proceeding to determine physical or legal custody or visitation in an action pursuant to the Uniform Parentage Act (Part 3 (commencing with [s]ection 7600) of Division 12). (g) A proceeding to determine physical or legal custody or visitation in an action brought by the district attorney pursuant to [s]ection 17404." (Fam. Code, § 3021.)
The trial court also cited Estate of Kampen (2011) 201 Cal.App.4th 971, as authority for its lack of jurisdiction to enforce the per diem provision. The dispute in Estate of Kampen involved, among other things, whether the trial court was authorized to amend a final order of distribution to deduct cash from individual retirement accounts (IRAs). (Id. at p. 1003.) The trial court issued a final order for distribution of the estate in 1999, which identified money in IRAs. (Id. at p. 979.) The IRAs, however, were not part of the estate. (Id. at p. 1003.) Because the court lacked subject matter jurisdiction over the IRAs, the order was void. (Ibid.) Therefore, the appellate court determined the trial court did not err in amending its final order to deduct the cash in the IRAs, since the court never had subject matter jurisdiction over those accounts. (Id. at p. 1004.) Here, however, the court acquired subject matter and personal jurisdiction over the parties when they filed their competing petitions for conservatorship in 2007. (Prob. Code, §§ 800, 2200.) There is no argument the trial court lacked subject matter jurisdiction over the conservatorship proceedings, and we find Estate of Kampen unpersuasive.
This is an unfortunate case, and we are sympathetic to the parties' difficult situation. However, we are bound by the law and cannot permit a collateral attack on the 2008 order.
DISPOSITION
We reverse the order denying the 2015 petition. The matter is remanded with directions to grant the 2015 petition. In the interests of justice, each party is to bear its own costs on appeal.
O'LEARY, P. J. WE CONCUR: MOORE, J. GOETHALS, J.