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IN RE: the MARRIAGE OF Margaret L. and Stanley E. AYRES.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: the MARRIAGE OF Margaret L. and Stanley E. AYRES. Margaret L. AYRES, Respondent, v. Stanley E. AYRES, Appellant.

G 000248.

Decided: April 30, 1985

James R. Goff, Orange, and Thomas P. Stabile, Santa Ana, for appellant. Sidney L. Radus, Santa Ana, for respondent.

OPINION

Ten years after a default judgment of legal separation was taken against him, a nonresident husband moved to set it aside on the ground it was void for lack of personal jurisdiction.   The trial court denied the motion, finding the husband was estopped to deny California had jurisdiction over him to make a valid support order because he had acquiesced to the payment of support under the judgment.   On appeal the husband asserts estoppel is not a basis for in personam jurisdiction.   Although the trial court's ruling was expressed in terms of “estoppel to deny jurisdiction,” the question presented is actually whether a party manifesting an intention to treat a judgment as valid may be estopped from denying its validity.

I.

Husband and wife were married in New York in 1949 and later moved to Pennsylvania.   They separated in February 1971.   Wife moved to California with the youngest of their three children and, on October 26, 1971, filed a petition for legal separation in the Orange County Superior Court.   On December 3, 1971, husband was personally served in Pennsylvania with summons and petition, together with an order to show cause for temporary spousal and child support scheduled for hearing December 16, 1971.   After he failed to appear, an order was entered on December 22, 1971, requiring him to pay to wife the sum of $450 per month as combined spousal and child support for the parties' two minor children, Susan and Richard.1  A copy was mailed to husband in Pennsylvania on December 24, 1971.   Husband also failed to respond to the petition, and a request to enter his default was filed February 28, 1972;  a copy was mailed to him on February 24, 1972.

On March 17, 1972, an interlocutory judgment of legal separation was entered, indicating the court had acquired jurisdiction over husband on December 3, 1971, by service of process on that date.   The judgment included a support provision identical to that contained in the December 22, 1971 order.   A final judgment was entered October 12, 1972.2

On August 22, 1975, wife obtained the first in a series of writs of execution on husband's military retirement plan.   A month later husband's Pennsylvania attorney wrote the Department of the Navy claiming the California court never acquired jurisdiction over husband, and “the diversion of Mr. Ayres' retirement earnings would be a violation of his rights and contrary to law.”   He requested an acknowledgement of receipt of the letter and a response as to the Navy's position.   The record does not reflect any response, and we presume there was none.   As of December 12, 1979, wife had received from this source the approximate sum of $3,447;  however, arrearages as of that date totalled $39,977.

Husband made no further attempt to challenge the judgment's validity until August 27, 1982 when he filed a motion to set it aside for lack of personal jurisdiction 3 by special appearance and to recall, quash and vacate a writ of execution dated January 1, 1980.4  His supporting declaration alleged he was a resident of Wilkes-Barre, Pennsylvania, had never been a resident or domiciliary of California, had not conducted business in California, and had not consented to jurisdiction by the California court.   While he stated he was not apprised of the judgment until 1975, he gave no explanation for waiting so long to contest its validity.

 In her declaration in opposition to husband's motion,5 wife alleged that prior to December 1971 she obtained a Pennsylvania support order for $650.   She made no attempt to enforce that order in reliance on husband's failure to prevent the Navy from honoring the writs.   Moreover, she had been advised she may be precluded from ever enforcing it because more than ten years had elapsed since it was made.6

At the hearing on February 4, 1983, wife's attorney claimed husband had initially been paying support voluntarily and only after he stopped did wife levy against his military pension.   Husband's counsel did not dispute this representation.7

II.

 There is no question the California court did not have personal jurisdiction over husband on March 17, 1972—the date on which the default judgment was entered.  “In order to issue an enforceable order for child [and spousal] support, a court must first obtain jurisdiction over the person sought to be ordered.  (Kulko v. California Supreme Court [1978] 436 U.S. 84 [98 S.Ct. 1690, 56 L.Ed.2d 132].)”  (In re Marriage of Meredith (1982) 129 Cal.App.3d 356, 361, 180 Cal.Rptr. 909;  see also Judd v. Superior Court (1976) 60 Cal.App.3d 38, 131 Cal.Rptr. 246.)  “The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought [citation], and a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in the forum.  [Citations].”  (Kulko v. California Supreme Court, supra, 436 U.S. at p. 91, 98 S.Ct. at p. 1696;  see also World Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490, International Shoe Co. v. Washington (1945) 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and Circus Circus Hotels, Inc. v. Superior Court (1981) 120 Cal.App.3d 546, 174 Cal.Rptr. 885.)

After correctly stating the law with respect to personal jurisdiction over nonresident defendants, husband's argument goes astray.   He relies on Kulko v. California Supreme Court, supra, 436 U.S. 84, 85, 98 S.Ct. 1690, 1693, 56 L.Ed.2d 132 and Judd v. Superior Court, supra, 60 Cal.App.3d 38, 131 Cal.Rptr. 246 8 to support his contention the judgment must be set aside because he had no contacts with California to warrant the state's assertion of personal jurisdiction over him.   However, in so doing he erroneously analogizes the case at bar to those in which jurisdictional challenges were made before the California court issued any orders.   Husband's faulty premise is best illustrated by his contention “[i]t was incredible for the trial court to hold that because Margaret Ayres was able to attach Stanley Ayres' pension based on a jurisdictionally defective judgment the court had in personam jurisdiction.   If Stanley Ayres had paid the support as in Judd this state would not have obtained in personam jurisdiction.   His payments by attachment give this state no more jurisdiction.”   To the contrary, husband is in a far different position than was Mr. Judd, because the challenge came here long after the California court had issued its order.

Notwithstanding husband's mischaracterization of the issue, wife contends he is estopped from denying California has personal jurisdiction over him by virtue of his action (or inaction) after entry of judgment.   But she too misses the point.  “The principle is settled that, unlike jurisdiction of the subject matter ․, jurisdiction of the person may be conferred by consent of the person, manifested in various ways.”  (1 Witkin, Cal. Procedure, supra, Jurisdiction, at § 116, p. 644;  emphasis in original.)   However, estoppel is not designated as one of these methods.  (See Judicial Council com. to Code Civ.Proc., § 410.10.)

 Relying on dictum in In re Marriage of Meredith, supra, 129 Cal.App.3d 356, 180 Cal.Rptr. 909, wife urges estoppel has been recognized as a possible basis for personal jurisdiction.   In Meredith, the wife argued her husband “is estopped to dispute jurisdiction because he did not contest jurisdiction timely, and she relied upon his acquiescence to her detriment.”   However, the court found she “produced no evidence on the issue and so her argument fails.”  (Id., at p. 363, 180 Cal.Rptr. 909.)   But even if Meredith could be construed as endorsing estoppel as a basis for personal jurisdiction, it would not support wife's position.   Mrs. Meredith's claim was based on an act occurring before the default judgment was entered.9  As stated above, husband's “acquiescence” to the support order occurred long after the judgment was rendered.10

In short, the question presented is not whether personal jurisdiction may be based upon an estoppel theory.11  Rather, we must decide if relief from a default judgment on the ground of invalidity may be denied when the party seeking relief manifests an intention to treat the judgment as valid.   However, before doing so we dispose of husband's contention he was not required to take any action because the judgment was void.

III.

 A judgment which is invalid on its face is generally said to be void.   (5 Witkin, Cal.Procedure, supra, Attack on Judgment in Trial Court, at § 166, p. 3739.)   Here, the judgment was valid on its face.   However, “the courts in an endeavor to differentiate between judgments which on their face ․ affirmatively disclose their invalidity and those which do not, have described the former as ‘void judgments' and the latter as ‘voidable judgments.’   Nevertheless, the courts generally are careful to point out that a judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all the attributes of a void judgment․  “[W]hile the phrase ‘void judgment’ is convenient, it is a contradiction in terms.   If a judgment is void it is not a judgment.”  (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 732–733, 234 P.2d 319.)   Thus, “[w]hether the want of jurisdiction appears on the face of the judgment or is shown by evidence aliunde, in either case the judgment is for all purposes a nullity—past, present and future․  All acts performed under it and all claims flowing out of it are void ․  No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality.'  (1 Freeman on Judgments, 5th ed., § 322, pp. 643–644.)”  (Id., at p. 732, 234 P.2d 319.) 12

 Nonetheless, while “[w]hat is initially void is ever void and life may not be breathed into it by lapse of time[,] ․ a court of equity may ․ refuse to exercise its jurisdiction in a proper case by declining to grant affirmative relief․”  (City of Los Angeles v. Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.)   This is such a case.

IV.

 As a rule, a nonresident defendant need not take action to contest a judgment obtained without the court first having obtained jurisdiction.13  “[S]ilence is not a manifestation of assent.   It is not enough that the person against whom the judgment was rendered simply failed to take action to attack the judgment or to protest the fact that it had been rendered․”  (Rest.2d Judgments, § 66, com. b.)   However, once the nonresident defendant, either directly or indirectly, allows enforcement efforts to proceed, this principle can no longer be applicable.   There is a rebuttable presumption a judgment or order is valid, with the burden of proof on the party attacking the judgment to show lack of jurisdiction.  (5 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, at § 3, pp. 3586–3587.)   Indeed, a court cannot know a judgment is jurisdictionally defective unless someone brings the defect to its attention.   Consequently, the 1972 judgment was presumptively valid until such time as husband took action to eliminate its effect.   The fact he finally did so some seven years after he first learned of its existence neither nullified the events which transpired in the interim nor revived the rights he had in 1975.

 Section 66 of the Restatement of Judgments 2d provides:  “Relief from a default judgment on the ground that the judgment is invalid will be denied if:  (1) The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid;  and (2) Granting the relief would impair another person's substantial interest of reliance on the judgment.”

Comments b and c offer guidance in making this determination:  “There are various forms by which acceptance of the terms of an invalid judgment may be manifested․  In some instances, the party against whom the judgment was rendered may in subsequent events be placed in a position where he would be expected to deny the effect of the judgment but does not do so.   His failure to protest the judgment in such a situation can be taken as an affirmation of the judgment because the circumstances invited an expression of a contrary position․”  (Rest.2d Judgments, supra, § 66, com. b.;   emphasis added.)

“The interests of reliance protected by denying relief may include property interests, interests in status, or interest in repose from legal controversy.   Whether an interest of reliance is sufficient to justify denying relief is determined not only by the extent of reliance but also by the relative equities between the parties, as appraised according to the tradition that the court exercises discretion in determining whether to grant relief.”  (Rest.2d Judgments, supra, § 66, com. c.;   emphasis added.)

Applying the foregoing principles, we conclude the trial court exercised its discretion soundly in refusing to grant relief.   Even if husband was not apprised of the judgment until 1975, he still could have challenged its validity in a more timely manner.   Instead, he sat back for seven years following an inconsequential attempt to prevent the Navy from proceeding with execution and allowed his retirement fund to be utilized to satisfy the support obligation.   We view this conduct as “an affirmation of the judgment because the circumstances invited an expression of a contrary position.”

Although the extent of wife's reliance on the judgment is minimized by the fact her rights to enforce the Pennsylvania order have not been impaired (see fn. 6, ante ), we think it would be grossly unfair to place the burden on her to now do so.   The extent of reliance is not the sole factor to be considered in determining the sufficiency of an interest in the reliance to justify denying relief;  the court's discretion also encompasses an appraisal of the relative equities between the parties.

Finally, while the aforementioned principles do not embrace the defense of laches, we find husband's conduct in waiting seven years before filing his motion, coupled with his acquiescence to the payment of support under the challenged judgment for at least as many years, to be exemplary of the doctrine.14  (See Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258.)   Having allowed this extended period of time to pass, without any explanation for the delay, husband should not be heard to complain.15

The order is affirmed.   Wife is entitled to costs on appeal.

FOOTNOTES

1.   The record indicates the parties had three children:  Susan, born December 22, 1951, Janet, born March 1, 1954, and Richard, born August 12, 1965.   There is no explanation as to why Janet, then 17 years old, was not named in the order.   However, we note wife's order to show cause requested support for only two children;  thus, we presume Janet was already emancipated.   Furthermore, Susan, then 20 years old, was still a minor because the amendment to Civil Code section 25 changing the age of majority from 21 to 18 did not become effective until March 4, 1972.

2.   The record does not reflect whether husband was served with copies of the judgments;  however, notices of entry of both were mailed to him in Pennsylvania, on March 20, 1972 and October 13, 1972, respectively.

3.   Although husband's motion was designated as a “motion to vacate the judgment,” it specifically requested relief only as to the “judgment for child support.”   Thus, husband did not purport to set aside the portion pertaining to the status of the parties' marriage.

4.   The most recent writ of execution in the clerk's transcript was filed January 9, 1980.   Pursuant to former Code of Civil Procedure section 683 (repealed by Stats.1982, c. 1364, § 1, operative July 1, 1983), a writ of execution was returnable in no less than 10 nor more than 60 days;  thus, it appears the January 9th writ was already ineffective.

5.   It is curious wife did not object to the manner in which husband attacked the judgment.   Where, as here, a judgment is valid on its face, a court has no power to set it aside on motion unless the motion is made, pursuant to Code of Civil Procedure section 473, within six months of its entry.  (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909.)   After this statutory period for direct attack has elapsed, any challenge to the judgment is collateral.  (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 6, p. 3588.)   However, only a judgment void on its face may be collaterally attacked at any time (id., at § 166, p. 3739);  husband should therefore have brought an independent action in equity.  (Id., at § 182, p. 3751.)Nonetheless, there is a presumption the trial court acted within its personal jurisdiction when it rendered the default judgment.  (Id., at § 3, pp. 3586–3587.)   And although this presumption may be rebutted by extrinsic evidence only in a direct attack (ibid.), the party relying on the judgment may waive the benefit of the rule excluding extrinsic evidence by failing to object to it when offered.  (Id., at § 11, p. 3592;  see also Thompson v. Cook, supra, 20 Cal.2d 564, 569, 127 P.2d 909.)

6.   Wife cites no authority for this proposition and it appears she was misinformed.   Under California law, there is a ten-year limitation on enforcement of judgments (Code Civ.Proc., § 683.020) which, in the case of a support order, runs as to each installment.  (Code Civ.Proc., § 683.030.)   However, had wife sought enforcement of the Pennsylvania order under the Revised Uniform Reciprocal Enforcement of Support Act (Code Civ.Proc., §§ 1650, et seq.), Pennsylvania law would have governed.  (See Code Civ.Proc., § 1670.)   Under that state's law, an execution against personal property may issue at any time within 20 years after the entry of judgment.  (Former 12 P.S. § 2094, repealed 1978, now 42 Pa.C.S.A. § 5529, eff. June 27, 1978.)   Thus, wife is not precluded from executing upon the 1971 support order.

7.   We note, however, according to the August 1975 writ of execution, wife had not previously received any payments under the judgment.

8.   In Kulko, a father's acquiescence to his daughter's stated preference to live in California with her mother was not a sufficient contact to establish personal jurisdiction.   And in Judd, the court held that a father's acts of mailing support payments into California, pursuant to a New York order, did not confer jurisdiction over him.

9.   In Meredith, an interlocutory judgment of dissolution of marriage was entered by default, the trial court having found jurisdiction was acquired when the husband, a nonresident, signed a Notice and Acknowledgment of Receipt.   Six years later, when the wife sought an increase in child support and a judgment for arrearages under the interlocutory decree, the husband for the first time challenged the court's jurisdiction over his person.   The appellate court held the husband's signing a Notice and Acknowledgment of Receipt did not confer jurisdiction.

10.   Nor is there any merit to wife's reliance on McGlothen v. Superior Court (1981) 121 Cal.App.3d 106, 175 Cal.Rptr. 129.   The McGlothen court held a husband's actions in leaving his wife and children destitute, which in turn obliged them to return to California where they received welfare, caused an effect in this state sufficient to confer personal jurisdiction.   Her attempt to pigeonhole the facts of this case into McGlothen's holding fails for two reasons:  not only is there no evidence wife moved to California because of husband's acts, but more importantly, in McGlothen, as in Kulko and Judd, the court's jurisdiction was challenged before any orders were made.

11.   It is of no moment the court's order denying husband's motion was based on a theory of estoppel to deny jurisdiction.  “If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.   Two theories seem to be involved here:  First, that the appellate court reviews the action of the lower court and not the reasons for its action;  second, that there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.”  (6 Witkin, Cal. Procedure, supra, Appeal, at § 226, pp. 4215–4216;  emphasis in original.)

12.   It seems to us the distinction between a “void” and “voidable” judgment is an artificial one which comes into play only as a means of differentiating between the propriety of a direct or collateral attack.   (See fn. 5, ante.)

13.   For example, in In re Marriage of Meredith, supra, 129 Cal.App.3d 356, 180 Cal.Rptr. 909, the court noted the husband did not waive his right to raise the jurisdictional issue by failing timely to object because “[t]he service of process upon [him] gave the court no power over his person.   It follows that it could not require him to do any act nor could it deprive him of any weapon to protect his in personam rights.   To rule otherwise would require [him] to appear in California, something the jurisdictional rules ․ exist to prevent.”  (Id., at p. 363, 180 Cal.Rptr. 909.)

14.   We realize the issue was raised neither in the trial court nor here;  however, the defense is cognizable “even where not pleaded if it appears from the complaint or the evidence.  [Citations.]”  (City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637, 644, 149 Cal.Rptr. 705.)

15.   From a practical standpoint, we fail to see how husband would benefit if we reached a contrary result.   Then, wife presumably would seek enforcement of the Pennsylvania order, and husband would be subjected to a greater support obligation.   Frankly, we question his motive in moving to vacate the judgment in the first place.   The motion did not purport to seek recoupment of the payments already made;  thus, our ruling affects only future support payments.   Consequently, it seems to us it would have been advisable for husband to instead seek a reduction or termination of support, an option which is still available to him.

WALLIN, Associate Justice.

TROTTER, P.J., and CROSBY, J., concur.

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