Opinion
A131123
01-20-2012
MARIE BRESSLER PETERS, Respondent, v. MICHAEL G. PETERS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. MSD0302721)
Family Code section 215, subdivision (a), requires a party requesting an order after a judgment of dissolution has been entered to serve notice upon the other party to the proceeding, and service on the party's attorney is insufficient. Unless there has been such service of notice, any order resulting from the request is invalid. Here, respondent moved the family court for a declaration that a promissory note was in default, but only served the notice of motion on the appellant's attorney, not appellant. Even though appellant through his attorney objected to the lack of notice, the trial court found he waived the requirements of section 215 and refused to vacate a postjudgment order declaring the note in default. We disagree with the trial court's conclusion that there had been a waiver and are compelled by the procedural requirement of section 215 to reverse.
Further statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Michael Peters and respondent Marie Bressler Peters entered into a marital settlement agreement (MSA) in May 2005 to resolve issues arising out of their five-year marriage that ended with a December 2003 judgment of dissolution. A judgment on reserved issues was filed in the superior court in 2005. Part of the MSA "incident to the parties' dissolution of marriage" required Michael to buy out all of Marie's interest in a car dealership and other community property assets. The terms of the buyout were specified in an Agreement Regarding Stock that was an exhibit attached and incorporated as an "integral part" of the MSA. Michael was to purchase Marie's shares in the business over time, and his indebtedness was memorialized in a secured promissory note. The family law court retained jurisdiction to enforce the Agreement Regarding Stock.
In November 2007, the parties stipulated to terminate a wage assignment order that was entered to satisfy Michael's child support obligation. Then, in January 2009, Marie filed the first of two requests for orders to show cause that were heard and determined by the trial court in 2009 concerning whether Michael was in default of the MSA and the Agreement Regarding Stock. An entry in the register of actions shows the trial court completed the last hearing and issued a dispositive order on December 18, 2009. The record in this appeal does not show whether Michael was personally served with the notice of each of these motions. For purposes of this discussion, we will assume that he was not personally served but nonetheless appeared and defended against each of them.
There is no record of further litigation in this case until October 2010, when Marie filed a motion seeking a determination that Michael had breached his obligations under the MSA and a declaration that he was in default of the promissory note and that the note was due and payable in full. On November 3, 2010, attorney Richard Conway wrote to counsel for Marie and stated that the motion was not properly served in compliance with section 215 and that he had not been retained by Michael to represent his interests in connection with the matter. That same day, Marie's lawyer filed a statement advising the court that there had been no opposition filed by Michael to the motion.
The court heard the motion on November 8th. Marie was present with her lawyer and there was no appearance on Michael's behalf. The court found Michael in default of the promissory note, and declared the balance of $1,276,923.08 due and payable in full. The court also awarded Marie $5,000 in attorney fees.
Michael moved to vacate the order on the ground that he was not personally served with notice as required by section 215. The court denied the motion. The court ruled that Michael had waived section 215's requirement of personal service because he had appeared previously through attorney Conway on postjudgment matters concerning his liability under the promissory note. Conway had not withdrawn as Michael's lawyer, and the court had retained jurisdiction in the MSA to enforce the note. The court also concluded that the order sought by Marie was not within the scope of section 215 because it was not seeking to modify a support or custody determination. Michael timely appealed.
DISCUSSION
The determination of waiver is normally a question of fact, and we are bound by the trial court's finding if it is supported by substantial evidence. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) But when the facts are undisputed and only one inference may reasonably be drawn, whether or not there has been a waiver is a question of law and we are not bound by the trial court's ruling. (Ibid.) Neither are we bound by the trial court's interpretation of section 215. Questions of statutory interpretation are pure matters of law upon which we exercise de novo review. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311.)
In relevant part, section 215, subdivision (a) provides: "[A]fter entry of a judgment of dissolution of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent order in any other proceeding in which there was at issue the visitation, custody, or support of a child, no modification of the judgment or order, and no subsequent order in the proceedings, is valid unless any prior notice otherwise required to be given to a party to the proceeding is served, in the same manner as the notice is otherwise permitted by law to be served, upon the party. For the purposes of this section, service upon the attorney of record is not sufficient."
When it announced its ruling, the trial court determined that the Legislature could not have intended section 215 to require personal service upon Michael in this case because "the attorneys had continued to appear and led the court to believe that they were both the attorneys of record." Moreover, it was the trial court's view that section 215 was designed to prevent surprise in family court proceedings by requiring parties who seek modified support or custody to provide personal service, and was not enacted to address the situation presented in this case. We disagree with both aspects of the trial court's construction of section 215.
"The first principle of statutory interpretation is that, to ascertain the Legislature's intent, we turn initially to the words of the statute, and if „ "the statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. [Citation.] The plain language of the statute establishes what was intended by the Legislature." ' [Citation.]" (People v. Johnson (2006) 38 Cal.4th 717, 723-724.) Section 215's mandate is clear. By its terms subdivision (a) is not restricted to postjudgment proceedings seeking to modify support or custody, but instead provides that "no subsequent order in the proceedings[] is valid unless any prior notice otherwise required to be given" is served upon the party to the action. Section 215, subdivision (a) also contemplates that parties will have attorneys of record when a subsequent order is sought and that "service upon the attorney of record is not sufficient."
The plain language of section 215 makes clear that no post-dissolution order is valid unless any prior required notice is served on the party. Service on the party's attorney of record does not suffice. (In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033, 1039. [interpreting statutory predecessor to section 215].) The Legislature's clear expression leaves no room for the trial court to decide the question of sections 215's scope based upon the Legislature's general designs when enacting it. By its terms section 215, subdivision (a) applied in this case, and Marie was required to personally serve Michael with her postjudgment motion seeking to have him declared in default of the MSA and the promissory note.
We also conclude that Michael did not waive section 215's requirement of personal service. When it announced its ruling, the trial court cited Ruszovan v. Ruszovan (1969) 268 Cal.App.2d 902 (Ruszovan) for the proposition that a party can waive the right to personal service through the conduct of his or her attorney of record. However, the situation in Ruszovan is readily distinguishable from this one.
In Ruszovan, an ex-husband seeking to modify the custody provisions in a decree attempted to personally serve his former wife. (Ruszovan, supra, 268 Cal.App.2d at p. 904.) She was not present at her office when the process server arrived, and her new husband, who was also her lawyer, asked for and accepted the moving papers. (Ibid.) Thereafter, he contacted counsel for the ex-husband and sought a continuance of the hearing date. (Ibid.) The appellate court determined that this situation constituted a waiver of the personal service requirement. (Id. at pp. 906-907.) Similarly, personal service has been held waived by a party's appearance to contest a motion for modification of a decree. (In re Marriage of Askren (1984) 157 Cal.App.3d 205, 211 (Askren).)
This case is not like Ruszovan or Askren. Here, Marie did not attempt personal service of her moving papers upon Michael. Before the hearing on Marie's motion, Michael's attorney of record pointed out the personal service requirement to her counsel, and stated he had not then been retained to represent Michael on the motion. He advised the motion should not proceed, and neither counsel nor Michael appeared at the hearing. These facts do not reasonably raise an inference that Michael waived section 215, subdivision (a)'s requirement of personal service through conduct of his counsel.
Neither do we consider the fact that the parties engaged in previous postjudgment litigation to warrant a finding of waiver. (See In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1130, fn. 5 (Seagondollar).) It does not appear the parties were engaged in ongoing litigation when Marie moved to have Michael declared in default of the MSA and the note in November 2010. They were last before the court, albeit on these same obligations, in December 2009, when a hearing was completed. The only thing that appears to have occurred on the court's docket between the December 2009 proceedings and Marie's November 2010 motion was the filing of her counsel's change of address. Notice was not waived as the parties were not engaged in ongoing litigation over Michael's nonpayment under the MSA and the note.
Finally, although some of the cases suggest personal service of a notice of motion may be unnecessary when the responding party has actual notice, nothing in the record shows that Michael was aware of the date, time and basis for Marie's motion to have him declared in default. (See Seagondollar, supra, 139 Cal.App.4th at p. 1130, fn. 5.) Thus, even if we were inclined to consider an actual notice exception to section 215, we would not apply it here.
Section 215 requires personal service of any postjudgment notice of application for an order in a marital dissolution proceeding. (See In re Marriage of Gabriel (1975) 50 Cal.App.3d 556, 558 [discussing predecessor statute].) It applies here. An order issued in violation of section 215 "is void on its face and subject to collateral attack." (Seagondollar, supra, 139 Cal.App.4th at p. 1130.) The order denying Michael's motion to vacate must be reversed. Marie's motion to augment the record is denied as untimely and unnecessary to the disposition of this appeal.
DISPOSITION
The order denying appellant's motion to vacate is reversed. On remand the trial court is directed to grant the motion, and vacate its findings and order after hearing filed November 16, 2010, determining Michael G. Peters in default of the Promissory Note dated May 2005, and awarding attorney fees to Marie Bressler Peters.
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Siggins, J.
We concur:
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McGuiness, P.J.
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Pollak, J.