IN RE: the MARRIAGE OF Angela and Ronald LIPPEL.

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Court of Appeal, First District, Division 2, California.

IN RE: the MARRIAGE OF Angela and Ronald LIPPEL. Ronald LIPPEL, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Respondent.

No. A043490.

Decided: December 08, 1989

Richmond & Chamberlin, C. Rick Chamberlin, San Francisco, for appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Josanna Berkow, Deputy Atty. Gen., Christopher J. Wei, Deputy Atty. Gen., San Francisco, for respondent.

Ronald Lippel appeals from an order denying his motion to vacate a child support order entered in 1971 and an order assigning his wages to respondent, the City and County of San Francisco acting through the family support bureau of the district attorney's office, entered in 1987.   We affirm the order under compulsion of existing California Supreme Court authority.

Factual and Procedural Background

On March 12, 1971, appellant's former wife, Angela Lippel, filed a petition for dissolution of their marriage of 11 and one-half months.   Appellant was personally served with a copy of the summons and petition.   The petition requested that custody of the parties' 17–month–old child, Kristin, be awarded to Angela and that spousal support not be awarded.   Although the form petition provided a box which could have been checked in front of the statement “Support of children be awarded if need is found,” this box was left blank.   A copy of the petition is attached to this opinion as Appendix A.

Appellant did not file a response to the petition and on April 27, 1971, his default was entered.   On May 26, 1971, an interlocutory judgment of dissolution of marriage was entered, awarding custody of Kristin to Angela with reasonable visitation rights to appellant and ordering appellant to pay $100 per month child support commencing June 1, 1971, and continuing until Kristin reached the age of 21 or became otherwise emancipated.   A notice of entry of that judgment was served on appellant by mail on May 27, 1971.   A notice of entry of the final judgment was served upon him on October 12, 1971.

On December 1, 1987, respondent filed a declaration requesting an assignment of appellant's wages, alleging that he owed child support arrearage/reimbursement of $18,200 as of July 31, 1985.   On December 7, 1987, the trial court entered its order assigning appellant's wages, finding $18,200 plus interest owing and ordering a deduction from his wages in the amount of $300 per month until the total amount was paid.   On December 24, 1987, respondent recorded an abstract of support judgment with the county recorder and served it upon appellant by mail.

On June 1, 1988, appellant moved to vacate the child support provision of the interlocutory judgment and to vacate the order assigning his wages.   Appellant filed his supporting declaration which may be summarized as follows:  Appellant was served with the summons and complaint, the request to enter default and the notice of entry of the interlocutory judgment.   The petition made no reference to child support.   Appellant was never served with a copy of the interlocutory judgment and was unaware of the child support order until he received by mail a copy of the abstract of support judgment which had been recorded by respondent on December 24, 1987.   For the past 18 years, appellant has maintained a close relationship with Kristin, with regular visits with him and his family during holidays and summer vacations.   Appellant purchased clothes, school supplies, and miscellaneous personal items for Kristin, including a bedroom set and stereo, and paid for dance classes and other extracurricular activities.   During several periods in the preceding 18 years, appellant assumed custody and total responsibility for Kristin at Angela's request.   At the time the declaration was made, Kristin was residing with appellant's mother on Santa Monica in San Francisco and finishing her senior year at Lincoln High School, with plans to attend City College the next year and then pursue an accounting degree at San Francisco State University.   Appellant had agreed to pay the cost of tuition and books for this education.

Additionally, appellant stated that Angela participated in some holiday and other family gatherings involving appellant's family and Kristin.   She never brought up the subject of a child support order and he was unaware of its existence until the events giving rise to this proceeding, some 16 years after entry of the order.

In opposition to appellant's motion, respondent filed a declaration of Lynn Fitzer, the assistant district attorney assigned to this case.   She stated on information and belief that Kristin had been a recipient of AFDC since on or about 1971 and that respondent was aware that the child has been a recipient of AFDC.   Angela Lippel assigned her rights to the city and county and could not enforce the support order herself.   Fitzer also alleged on information and belief that unsuccessful efforts had been made to locate appellant and serve him with documents seeking to enforce his support obligations ever since the matter had been referred to the district attorney's office by the department of social services in early 1980.   She also stated on information and belief that when Kristin went off AFDC in 1985, Angela requested the office to enforce the child support order as a non-welfare case.   However, because the office was unable to locate appellant, the case was placed in closed files pending new information regarding his whereabouts.

On July 14, 1988, the trial court entered its order denying appellant's motion to vacate the child support order and the order assigning his wages.   This timely appeal followed.

Discussion

Appellant contends that entry of the child support order in the dissolution proceeding was in excess of the court's jurisdiction under Code of Civil Procedure section 580, which provides:  “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint;  but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.” 1  Although we think this contention has logical appeal, the issue is foreclosed by what we shall refer to as “the Cohen line of cases,” Supreme Court authority dating to 1906.

In Cohen v. Cohen (1906) 150 Cal. 99, 88 P. 267, a default decree of divorce provided for payment of $10 per month permanent alimony.   The defaulting husband sought to collaterally attack the alimony award as void on its face, since the complaint contained no allegations or prayer with respect to this relief.   The court held that such a defect does not go to jurisdiction and hence does not render the judgment void because “ ‘[t]he provision for support in such cases is ordinarily an incident of the judgment of divorce․’ ”  (Id. at p. 101, 88 P. 267.)  “The judgment is not void on the ground that it gives relief in excess of that specifically prayed for.   Section 580 of the Code of Civil Procedure, providing that where there is no answer the relief cannot exceed that demanded in the complaint, does not make the judgment void in a case where the relief given is within the terms of a prayer for general relief and is germane to the cause of action stated, although it may not be authorized by the facts alleged.   In such cases the judgment may be erroneous as to the excess and subject to reversal or modification on appeal, but it is not void, nor subject to collateral attack on that ground․”  (Id. at p. 102, 88 P. 267.)

Following Cohen came Parker v. Parker (1928) 203 Cal. 787, 266 P. 283.   There the complaint for divorce alleged the weekly earnings of the defendant and that there was a minor child, aged seven.   The prayer sought divorce and custody of the child.   The default judgment entered against the husband in 1912 provided for the payment of $40 per month for the support of the wife and minor child.   In 1925, the wife sought execution for amounts due from 1913 through 1922.   The husband contended that the support judgment was void on its face because the relief granted was in excess of the relief demanded, in contravention of section 580.   Citing Cohen, the Parker court rejected this contention, holding that the granting of such relief is erroneous and may be corrected on appeal or under section 473 (which requires seeking relief within six months), but such a judgment is not void and subject to collateral attack on that basis.  (Id. at p. 792, 266 P. 283.)

In Karlslyst v. Frazier (1931) 213 Cal. 377, 2 P.2d 362, the default interlocutory judgment ordered the husband to pay permanent child support of $25 per month, although the wife sought only temporary support.   Citing Cohen and Parker, the court held that the decree could not be set aside on the ground that it violated section 580.  “Such a decree is not void.”  (Id. at p. 381, 2 P.2d 362.)   The court held that since “the interests of the child are a factor of prime importance,” the court is not bound by the prayer for relief.  (Ibid.)

In Miller v. Superior Court (1937) 9 Cal.2d 733, 72 P.2d 868, a contempt proceeding was brought against Miller for failure to comply with an order that he pay $75 per month for the support of his former wife.   He asserted that he could not be held in contempt because the complaint which resulted in a default interlocutory judgment against him had not prayed for an order commanding payment.   Citing Cohen and Parker, the court held:  “[A]ny error in going beyond the prayer would be in the exercise of jurisdiction, and the order made and permitted to become final would not be subject to collateral attack on the ground that it went beyond the prayer.  [Citations.]”  (Id. at p. 740, 72 P.2d 868.)

The fifth and last of the Supreme Court's Cohen line of cases is Bowman v. Bowman (1947) 29 Cal.2d 808, 178 P.2d 751.   There a defaulting husband sought to attack an award of alimony on the ground that the complaint had not contained a prayer for such relief.   The wife contended that by seeking the payment of debts, the complaint gave the defendant sufficient notice that alimony might be granted.   Justice Traynor rejected the defendant's argument and, citing Cohen and Parker, stated:  “Plaintiff need not rely solely upon the sufficiency of her complaint and prayer, however, since it is established that if the relief in excess of prayer is alimony, the judgment, although erroneous, is not void.”  (Id. at p. 812, 178 P.2d 751.)

Thereafter the Supreme Court held in Burtnett v. King (1949) 33 Cal.2d 805, 205 P.2d 657, 12 A.L.R.2d 333, that a husband could collaterally attack a default divorce decree awarding community property to his wife because the prayer for relief in the divorce complaint made no mention of the community property and did not request that it be awarded to anyone.   Relying upon section 580, the court held that “the court's jurisdiction to render default judgments can be exercised only in the way authorized by statute.   It cannot act except in a particular manner, that is, by keeping the judgment within the bounds of the relief demanded.”  (Id. at p. 807, 205 P.2d 657.)  “Certainly no statutory method of procedure or limitation on power could be more clearly expressed than that set forth in section 580 of the Code of Civil Procedure, supra.   Thus the court wholly lacked jurisdiction to render a judgment affecting the community property, for there was no demand for such relief.   Having no jurisdiction the judgment was not res judicata on this issue.   It was void.”  (Ibid.)

The Burtnett court recognized the existence of the Cohen line of cases and, citing those five cases, stated that they “are not in point for the reason that there, support money or alimony was involved, and it may be conceded that this issue is so germane to the issue of divorce that a defendant must anticipate an award therefor although there is no prayer to that effect.   Those cases involved awards of alimony or support for children.” 2  (Burtnett v. King, supra, 33 Cal.2d at pp. 809–810, 205 P.2d 657, emphasis added.)

An American Law Reports annotation to the Burtnett case observed that the California decisions construing section 580 “manifest two different views.”  (Annot., Granting Relief Not Specifically Demanded in Pleading or Notice in Rendering Default Judgment in Divorce or Separation Action (1950) 12 A.L.R.2d 340, 348.)  “On the one hand, in matters other than awards of alimony or providing for the custody or maintenance of the children of the parties, it seems to be generally recognized that the granting of relief in excess of that demanded by the complaint as against the defaulting defendant in an action for divorce or separation is beyond the jurisdiction of the court and is open to collateral attack.  [Citations.]”  (Id. at pp. 348–349.)  “On the other hand the California courts hold that an award of alimony in a default judgment where such relief was not demanded, while erroneous and subject to direct attack, ․ is not void and is not subject to collateral attack.   [Citations.]”  (Id., at p. 351.)

This dichotomy has not gone uncriticized.   In his dissent in Burtnett, Justice Edmonds disagreed with the majority and felt that the complaint in that case gave the defendant adequate notice that a division of community property might be made, thus making the judgment erroneous but not void.   However, with respect to the internal consistency of the reasoning of the majority opinion, he found it to contain “a striking anomaly,” questioning the exception made for the Cohen line of cases:  “Why this exception?   If, as the opinion states, the court's jurisdiction to enter judgment in a default action is strictly limited to the ‘very specific’ terms of section 580 of the Code of Civil Procedure, how can a court be held to have ‘jurisdiction’ beyond the scope of the prayer in cases where alimony or support is in issue when the statute makes no mention of such an exception?   It would seem, rather, that if the majority has properly construed the statute, consistency requires that the support and alimony cases be overruled or disapproved.”  (Burtnett v. King, supra, 33 Cal.2d 805, 813, 205 P.2d 657 [dis. opn. of Edmonds, J.].)

Law review commentators have also noted the inconsistency between the majority reasoning in Burtnett and the Cohen line of cases.  “In 1906, the California Supreme Court decided Cohen v. Cohen.   This case, and those following it, have confused the California law.”  (Default Judgments in Excess of Prayer (1952) 4 Stan.L.Rev. 278, 280, fn. omitted.)  “The court in Burtnett v. King brushed aside the alimony cases as ‘not in point,’ although they seem clearly inconsistent.”  (Note (1950) 38 Cal.L.Rev. 313, 316, fns. omitted.)  “The [Burtnett ] majority concede the Cohen case exception, but refuse to extend it to a disposition of property.   Their position may well be criticized as inconsistent by posing the question put by the dissent as to why alimony is more ‘germane’ to an action for divorce than is the disposition of community property.   But, on the other hand, it can be argued that the Cohen case, although well established, is an unwarranted exception to California Civil Code [sic], Section 580, in that it goes beyond the express wording of the statute, and affords no notice to the defendant.”  (Note (1949) 23 So.Cal.L.Rev. 124, 125.)

While appellant is aware of the Cohen line of cases, he, mistakenly, seeks to rely upon the authority of Darsie v. Darsie (1942) 49 Cal.App.2d 491, 122 P.2d 64, Eddy v. Eddy (1944) 64 Cal.App.2d 672, 149 P.2d 187 and Craft v. Craft (1957) 49 Cal.2d 189, 316 P.2d 345.  Darsie and Eddy, while holding it erroneous to award support or alimony in the absence of a prayer for such relief, both involved direct appeals and are therefore inapposite to this case in which appellant seeks to collaterally attack the support order as void.   In Craft, the parties entered into an agreement in which the wife waived alimony but the court nevertheless awarded alimony.   In reversing the denial of the defendant's motion to modify or vacate the interlocutory decree, the court recognized and cited, but distinguished, the Cohen line of cases:  “It is obvious that a different situation is presented where, as here, there is not only a failure to pray for alimony but also a stipulation which amounts to an agreement to remove that issue from the case.   While a defendant must ordinarily anticipate an award of alimony in an action for divorce, he should not be required to do so where there is a stipulation waiving that relief, and the existence of such a stipulation precludes the court from awarding support money in the absence of proper notice to the defaulting defendant.”  (Craft v. Craft, supra, 49 Cal.2d at p. 193, 316 P.2d 345.)   Here, unlike in Craft, there are no circumstances which remove appellant's case from the principles of the Cohen line of cases.

While the wisdom of the continued adherence to the authority of the Cohen line of cases may be questioned,3 any change in this area of the law must come from our Supreme Court, not from this intermediate appellate court.   Not only has the Cohen line of cases not been disapproved, those cases have subsequently been cited with apparent approval by the Supreme Court in both the Burtnett and Craft cases.4  As an inferior tribunal, we are required to follow the decisions of the Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

At oral argument appellant urged, in reliance upon the recent decision In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 261 Cal.Rptr. 36, that it would be appropriate for this court to remand this case for a determination whether the trial court should order an offset from the amount due under the order assigning appellant's wages by any amounts he actually paid for the support of Kristin.   We afforded the parties opportunity to brief this issue following argument.   Having considered the supplemental briefing, we reject the request for remand.

In Trainotti, a wife was awarded custody of a minor in a dissolution proceeding and the husband was ordered to pay child support.   Three years later the husband assumed sole physical custody of the child, purportedly by agreement of the parties, and ceased making child support payments.   The wife, however, would not stipulate to entry of an order reflecting this arrangement.   The husband then commenced a proceeding to modify the original child custody and support orders and the wife sought child support arrearages.   Although the parties eventually stipulated to entry of an order granting the husband sole physical custody, they could not reach accommodation on the issue of support arrearages totalling $4,500.   The trial court concluded that it was without jurisdiction to offset accrued payments for the period the child was living with the husband.   The Court of Appeal reversed, holding that the child support order was similar to a judgment in which the husband, as judgment debtor, was entitled to a setoff of support paid which was equal to or in excess of the court-ordered amount.   The matter was remanded for a determination whether the husband had discharged in whole or in part his responsibility under the original order.  (Id. at pp. 1075–1076, 261 Cal.Rptr. 36.)

The Trainotti court relied upon Jackson v. Jackson (1975) 51 Cal.App.3d 363, 124 Cal.Rptr. 101, which held that a trial court possesses discretion to permit only partial enforcement or to quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child.  (Id. at p. 368, 124 Cal.Rptr. 101.)

In Trainotti and Jackson, offset for expenses actually paid was sought in the trial court.   The trial court in Trainotti found “that it was without jurisdiction to offset” accrued payments.  (In re Marriage of Trainotti, supra, 212 Cal.App.3d at p. 1074, 261 Cal.Rptr. 36.)   In Jackson, the husband sought in the trial court “reimbursement for money expended for the benefit” of his daughter.  (Jackson v. Jackson, supra, 51 Cal.App.3d at p. 365, 124 Cal.Rptr. 101.)   Here, in contrast, the issue of reimbursement for expenses actually paid was not raised in the court below.

Trainotti and Jackson both involved private parties seeking enforcement of a child support order, while this case involves a public entity, as assignee of the child's mother, seeking reimbursement for AFDC payments.   Different policy considerations may well arise regarding the possibility of offset when the enforcing party is a public agency rather than a private party who has presumably benefited from expenditures actually made by the other party.   Since the issue of the appropriateness of an offset in the circumstances of this case was not presented to the trial court, we decline to consider it for the first time on appeal.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, pp. 321–322, and cases there cited.)

Disposition

The order appealed from is affirmed.

APPENDIX A

FOOTNOTES

1.   All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

2.   Although Cohen, Miller and Bowman involved awards of alimony, it is obvious that the rationale of those cases applies equally to child support orders.  (See Karlslyst v. Frazier, supra, 213 Cal. 377, 2 P.2d 362;  Parker v. Parker, supra, 203 Cal. 787, 266 P. 283.)

3.   We note that this authority evolved from a 1906 decision.   Our society has seen many changes since that time.   Today it is probably far more common that it was in 1906 for a party seeking custody of a child to be in better economic circumstances than his or her spouse and not seek child support.   The unyielding rule of the Cohen line of cases precludes collateral attack upon a support order entered under such circumstances despite the fact that a defaulting party had no knowledge of the order until many years later and may be thousands of dollars in arrears under the order.

4.   Respondent contends that apart from the Cohen line of cases, the trial court has authority to enter a support order in circumstances such as those presented here by virtue of Civil Code section 4700, which provides in pertinent part that in any proceeding where there is at issue the support of a minor child, “the court may order either or both parents to pay any amount necessary for the support, maintenance, and education of the child.”   While appellant does not quarrel with this authority, he contends that the making of such an order without notice to a party being ordered to pay support would violate fundamental principles of procedural due process.   Since the Cohen line of cases precludes collateral attack upon a support order entered in a dissolution proceeding without notice to a defaulting party, we need not decide whether, absent the current Supreme Court precedent, an order entered pursuant to Civil Code section 4700 without notice could be collaterally attacked as void.

BENSON, Associate Justice.

SMITH, Acting P.J., and PETERSON, J., concur.