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COUNTY OF FRESNO, Plaintiff and Appellant, v. Sergio Tovar RUIZ, Defendant and Respondent.
Appellant County of Fresno (the County) contends the mere fact that respondent Sergio Tovar Ruiz (Ruiz) was later shown not to be the biological father of a child fails to provide grounds to vacate a judgment of paternity entered against Ruiz seven years earlier. We agree with this as an abstract principle of law. However, that principle of law is not presented by the present record. The applicable law supports the trial court's order vacating the judgment of paternity based on evidence here of extrinsic fraud committed by the mother. Additionally, we conclude the court erred in discharging accrued arrearages; however, this conclusion will not preclude Ruiz from seeking reimbursement from funds, attributed to the same time period, if subsequently collected by the County from a legally responsible parent. Accordingly, we will affirm in part and reverse in part the order of December 12, 1996.
Facts and Procedural History
The proceedings in this matter were tape recorded. When it came time to transcribe the hearing in question so as to complete the record on appeal, a trial court employee advised this court by declaration that the relevant portion of the tape “is blank.” The County, as far as our record reflects, has not proceeded under either rule 6 or rule 7, California Rules of Court, so as to provide us with a substitute for a transcript of the oral proceedings at the hearing in question, and the County did not designate the transcript of an earlier hearing as part of the record on appeal. Accordingly, this is a judgment roll or clerk's transcript appeal, and the record is presumed sufficient to support the order from which the appeal is taken unless the “error claimed by appellant appears on the face of the record.” (Cal. Rules of Court, rule 52; see 9 Witkin, Cal. Procedure (4th ed.1997) Appeal, § 352, pp. 399-400.)
The minute order of the hearing in question does not indicate that the court received testimony from witnesses. There is a rather sketchy declaration by Ruiz as part of the record, but there is a much fuller statement of facts in the points and authorities presented at the hearing. In keeping with the relevant presumptions for judgment roll appeals, we will presume that the statement of facts in the points and authorities was accepted by the trial court as an offer of proof without objection from the County and, where relevant, we will set forth the facts based on that offer of proof. (Cf. In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1059, fn. 3, 202 Cal.Rptr. 116 [discussing necessary level of informality of proceedings in domestic relations law-and-motion hearings].)
The Original Proceedings
Christina was born on January 20, 1989, to Beatriz E., apparently an undocumented alien. Beatriz told Ruiz he was the father of the child and he believed her. He began visiting with the baby under Beatriz's supervision; she would never let Ruiz take the baby away from her presence.
Beginning February 1, 1989, Beatriz began receiving welfare benefits on behalf of Christina pursuant to the Aid to Families with Dependent Children program (AFDC). On June 8, 1989, the County filed a complaint on behalf of Christina to establish Ruiz's paternity and to establish an amount of child support to be paid to the County as reimbursement for AFDC paid to Beatriz for Christina. (See Welf. & Inst.Code, §§ 11475, 11350.1.)
Ruiz contacted Beatriz and requested that she participate in blood testing to establish Ruiz's paternity. She told him such tests were unnecessary “since he was the father.” She said she would take Christina to Mexico if Ruiz tried to force blood tests. As a result, Ruiz accepted Beatriz's representations concerning paternity of Christina and did not respond to the complaint filed against him, since he was agreeable to paying child support for his own child.
On October 6, 1989, the court entered a default judgment against Ruiz. The judgment decreed that Ruiz was Christina's father and ordered him to pay child support in the amount of $176 per month. It fixed the amount of arrearages on support and ordered a wage assignment in the total sum of $200 per month. Apparently, the default judgment was not served on Ruiz until June 19, 1991. Ruiz paid child support through the wage assignment through July 12, 1991.
Throughout the relevant time period, Ruiz requested that Beatriz permit unsupervised visitation. She continually declined to permit unsupervised visitation because, she said, the child was too young. In April of 1991, Ruiz filed a petition to establish a visitation schedule and to prohibit Beatriz from leaving the country with Christina. As a result of this motion, Beatriz for the first time disclosed that Ruiz was not Christina's father. The parties agreed to obtain blood tests, and the court ordered visitation pending receipt of the test results. Beatriz then persuaded Ruiz to submit to the blood tests immediately, so she would not have to permit visitation. On June 5, 1991, Beatriz, Ruiz and Christina submitted to blood testing. The laboratory reported that “Sergio Tovar Ruiz is excluded as the father of Christina.”
After they received the blood test results, Ruiz (in pro. per.) and Beatriz (represented by counsel) entered into a stipulation submitting the matter of paternity for adjudication on the blood test report. Ruiz, again acting in propria persona, filed a petition for determination of nonpaternity, naming Beatriz as the sole defendant. (Ruiz v. Beatriz E., Super.Ct. Fresno County 1991, No. 437574-7.) After the parties appeared at a settlement conference before Judge Levy (Beatriz represented by counsel), the court on December 31, 1991, entered a judgment purporting to determine “the non-existence of a parent/child relationship” between Ruiz and Christina. The court ordered the issuance of a new birth certificate without Ruiz's name as the father. (Although the judgment recited that Ruiz appeared without counsel, the judgment also contained a notation that it was “approved as to form and content,” signed by Nicholas Reyes as “Attorney for Plaintiff Sergio Ruiz.”) After he learned he was not Christina's father, Ruiz stopped paying child support.1
In April of 1993, Ruiz began receiving unemployment compensation benefits. Ruiz learned that a portion of his unemployment compensation had been withheld for transmittal to the County for payment of child support arrearages. Ruiz went to his previous attorney, who said he would “take care of” the matter. However, in 1994, Ruiz again received unemployment benefits and a portion was withheld for child support. In June of 1994, the County garnished Ruiz's bank account. “Prior counsel helped [Ruiz] get the money back.” Ruiz also “went down to Family Support Division and spoke with [a person named] Luz. He informed her as to what had happened and she indicated to him that the problem was remedied.” Nevertheless, after Ruiz filed his tax returns in 1995, he was told his refund had been sent to the County as support arrearages. Again Ruiz spoke to Luz at the Family Support Division. This time, she told him he needed legal assistance. Ruiz contacted his previous attorney, who again assured him “he would help [Ruiz],” but nothing was done.
At the County's request, the court on March 7, 1996, ordered Ruiz to appear in the present action for examination as a debtor to aid in enforcement of the child support order. On May 30, 1996, Ruiz appeared as ordered, without counsel; Beatriz was also present. Ruiz was “excused after having been examined.” A deputy district attorney told Ruiz at the examination proceeding that he would need to move to vacate the default judgment in order to resolve this matter in any final way.
On July 16, 1996, Ruiz filed, in propria persona, a notice of motion and motion to set aside default and default judgment. The hearing was set for August 2, 1996. On that date, Ruiz's present counsel filed a substitution of attorneys and appeared at the hearing on the motion to set aside the default and judgment. The court heard the motion and took it under submission. It permitted Ruiz to file additional points and authorities by October 1 and the County to file its response by October 15, 1996.2 On October 1, 1996, Ruiz's attorney filed the points and authorities from which we have drawn many of the factual allegations set out above.3 On October 18, 1996, Deputy District Attorney Geisel submitted points and authorities on behalf of the County. Attorney Geisel did not object to the statement of facts in Ruiz's points and authorities nor did he present any additional or different facts.
At a further hearing on November 22, 1996, attended only by the parties' attorneys, the court granted the motion to set aside the default and found Ruiz is not the father of Christina. The court directed Ruiz's attorney to prepare an order after hearing. On December 12, 1996, the court filed its order, drafted by Ruiz's attorney and approved as to form and content by the deputy district attorney. After reciting certain formalities, but not any findings or conclusions, the order states:
“Upon hearing the matter the Court ruled as follows:
“IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS;
“Defendant's motion to Set Aside Default Judgment is granted. The court finds that the Defendant is not the father of the minor child. Defendant shall not be reimbursed by the County of Fresno for any moneys already collected by said County. Defendant shall not pay any existing overdue child support payments.”
The County filed a notice of appeal on January 9, 1997.
A. The Order Vacating the Default Judgment
After expiration of the time to obtain relief from a judgment pursuant to Code of Civil Procedure section 473, the court issuing the judgment continues to have the equitable power to set aside the judgment. One of the few grounds for such relief is extrinsic fraud or mistake. A party moving for relief from judgment on this basis must show the fraud or mistake, his reasonable reliance on it, and the existence of a meritorious defense. (8 Witkin, Cal. Procedure (4 ed.1997) Attack on Judgment in Trial Court, §§ 224, 237, pp. 728, 751; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982, 35 Cal.Rptr.2d 669, 884 P.2d 126.) In addition, the party must be reasonably diligent in seeking relief from the judgment. (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 239, p. 754.)
On appeal, the County, now represented by the Attorney General, premises its argument on the following statement: “On December 12, 1996, the trial court set aside respondent's 1989 default judgment of paternity on the basis of one reason and one reason only: the court found that respondent ‘is not the father of the minor child.’ ” Thus, the County argues that the mere fact of nonpaternity does not constitute extrinsic fraud or mistake and, therefore, the trial court abused its discretion in setting aside the judgment.
The County's argument is based on a misconception concerning the order in question. The County treats the order as if it reads: “The court finds that the Defendant is not the father of the minor child. Defendant's motion to Set Aside Default Judgment is granted.” In such circumstances, ordinary rules of logic and usage of the English language would lead to an inference that the first sentence is the premise for the conclusion expressed in the second sentence. (See Fowler's Modern English Usage (2d ed.1965) p. 435 [paragraphs are to be “sequential in treatment”].)
However, in the order as actually written, the sentences are not only reversed, but constitute two of four sequential statements. In the circumstances, the only reasonable reading of the statements is that each is a conclusion; none is a premise. In other words, it is as if the order were laid out in the following manner:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. Defendant's motion to Set Aside Default Judgment is granted.
2. [Having reopened the case on the merits,] The court finds that the Defendant is not the father of the minor child.
3. Defendant shall not be reimbursed by the County of Fresno for any moneys already collected by said County.
4. Defendant shall not pay any existing overdue child support payments.
This commonsense reading of the order in question is fully supported by the proceedings that led up to the order, at least as those proceedings are documented in the record before us. While Ruiz's supplemental points and authorities discuss the existence of the blood test results, that discussion occurs in the context of the reasons for his delay in filing the present motion, a different element for consideration in the trial court's exercise of its discretion to set aside the default and judgment. The test results are not relied upon in the points and authorities to establish extrinsic fraud. Rather, Beatriz's course of conduct in assuring Ruiz he was Christina's father is asserted as the extrinsic fraud.
Similarly, the County's points and authorities in opposition to the motion squarely place in issue the question of Beatriz's deception as extrinsic fraud: “Assuming that the mother in this action did tell the Defendant that he in fact was the father, the Defendant still should not have sat on his rights, but should have settled his rights in the prior court action.” The County's only discussion of the blood test results is to contend that the separate court action declaring Ruiz's nonpaternity is a nullity.
Accordingly, as framed by the parties in the trial court, the initial issue for resolution by the trial court was whether Beatriz's conduct constituted extrinsic fraud. The court impliedly found it did. After setting aside the default and default judgment, the court then turned to the merits of the re-opened action. Based on the uncontradicted blood test results, the court concluded Ruiz is not Christina's father. Finally, the court dealt with the issues presented by the previous support order. In our view, that is why the court's order follows the sequence it does.
The County does not contend on this appeal that Beatriz's deception was not extrinsic fraud as a matter of law. Nor does it contend the evidence failed to establish the nature of her deception, Ruiz's actual reliance on her misrepresentations and threats, or his due diligence in moving to set aside the judgment.4
We are satisfied that the record before us establishes the necessary elements to permit an order setting aside the 1989 default and judgment.5 Extrinsic fraud has been defined generally as conduct that deprives the defrauded party of the opportunity to present his or her claim or defense to the court, “that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding.” (In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1068, 202 Cal.Rptr. 116.) “[E]xtrinsic fraud is a broad concept that tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114, 39 Cal.Rptr.2d 535 [citation and internal quotation marks omitted]; see In re David H. (1995) 33 Cal.App.4th 368, 381, 39 Cal.Rptr.2d 313.)
In Steven W., a man filed an action against the mother of a child and the mother's husband to establish the plaintiff's paternity of the child. The mother told her husband that he, not the plaintiff, was the father of the child. She told her husband she had hired a lawyer and that the husband's “interests would be protected.” Instead, the mother filed her answer, admitting the plaintiff was the father of the child, and a default judgment was entered against the husband. More than six months later, the husband moved to vacate the default judgment. The trial court granted the motion and the appellate court affirmed, finding no abuse of discretion. (Steven W. v. Matthew S., supra, 33 Cal.App.4th at pp. 1113-1114, 39 Cal.Rptr.2d 535.)
Similarly, in the present case, Ruiz relied on an express misrepresentation by a person with whom he was in a close personal relationship. Beatriz told Ruiz he was (not might be ) Christina's father when she knew he was not the father, a fact about which she had unique knowledge. In addition to the misrepresentation, Beatriz threatened to take Christina to Mexico when Ruiz said he wanted blood testing in 1989, a threat on which she was uniquely capable of acting. (See In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 75-76, 260 Cal.Rptr. 403 [inter alia, husband threatened to file for bankruptcy and to take custody of child if wife refused to sign unfair settlement agreement; wife's default set aside].) The trial court did not abuse its discretion in granting the motion to set aside the default and default judgment.
The County cites City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 41 Cal.Rptr.2d 797 for the proposition that the paternity judgment in this case is inviolable. That case is distinguishable. In Cartagena, the child's mother represented to Cartagena that he was the father of the child. Cartagena signed a stipulation with the county in which he acknowledged he was the child's father. Judgment of paternity was entered. Three years later, Cartagena filed a motion to set aside the judgment. In his motion he alleged the child's mother “had told various mutual acquaintances that Cartagena was not [the child's] father.” (Id. at p. 1064, 41 Cal.Rptr.2d 797.) At the hearing on the motion, the sole witness was Cartagena's present girlfriend, who said the child's mother had said on two separate occasions that Cartagena was not the child's father. The court took the motion to set aside under submission and ordered that, in the meantime, the parties submit to blood tests. (Ibid.) The county appealed.
The Court of Appeal reversed the order for blood testing. It held that the issue of paternity was foreclosed by the existing judgment, unless and until that judgment was vacated. (35 Cal.App.4th at p. 1069, 41 Cal.Rptr.2d 797.) The court held that blood test results were irrelevant on the issue of extrinsic fraud. (Id. at p. 1068, 41 Cal.Rptr.2d 797.) The appellate court did not, however, rule on the issue now before us, namely, whether the judgment could be set aside in the first instance. In particular, the court did not hold that the mother's prejudgment representations concerning paternity were insufficient as a matter of law to constitute extrinsic fraud: “[T]he issue of vacating the paternity judgment must be resolved. If the [trial] court rules Cartagena has met his burden of proof and sets aside that judgment, the paternity of the child is then placed directly in issue and the blood test becomes a proper subject for discovery.” (Id. at p. 1069, 41 Cal.Rptr.2d 797.)
Blood testing as a precursor to an order vacating a paternity judgment was also the issue in cases such as City and County of San Francisco v. Stanley (1994) 24 Cal.App.4th 1724, 30 Cal.Rptr.2d 106 and Brown v. Superior Court (1979) 98 Cal.App.3d 633, 159 Cal.Rptr. 604. As discussed in Cartagena, those cases also hold that an order for blood tests is impermissible while a judgment of paternity is still in place.
In the present case, there was no order for blood tests. The blood tests had already been obtained by voluntary action of the parties. While the existence of the blood test allowed the court to resolve the matter of paternity on the merits in the same order in which it set aside the default and judgment, the existence of the blood tests was merely coincidental; it was Beatriz's actions that constituted extrinsic fraud, not the blood test results.
B. The Arrearages
The County also argues that the trial court erred in discharging any arrearage in child support that accrued prior to the order setting aside the default judgment. The County argues that Family Code section 3651 (section 3651) precludes such a discharge of arrearages. That statute provides that a “support order may not be modified or terminated as to an amount that accrued before the date of the filing of the ․ motion or order to show cause to modify or terminate.”
Respondent wholly fails to address this issue. We have found no cases establishing an exception to the applicability of section 3651 in cases involving a subsequent determination of nonpaternity.
In State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 60 Cal.Rptr.2d 342, we discussed the fact that child support enforcement laws permit retroactive establishment of a child support obligation when the district attorney acts on behalf of a child receiving AFDC, even though the law does not permit retroactive support orders for non-AFDC children. Therefore, the County can still attempt to locate and obtain support payments from Christina's actual father.6
Repayment to the County by Christina's actual father is speculative at this point, however. As noted, section 3651 is inequivocal in its prohibition on retroactive modification of support orders. When section 3651 is applicable, a court acts in excess of its jurisdiction in reducing accrued arrearages in child support. (In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80, 41 Cal.Rptr.2d 377.) We conclude the court erred in the present case in discharging the full amount of arrearages. Instead, in accordance with section 3651, arrearages should have been discharged only from the date of filing the motion to set aside the default judgment, July 16, 1996. We will remand this matter for a further hearing to establish the amount of the arrearages that will not be discharged by court order.
We are concerned, however, that the County may be unjustly enriched if it recovers from Christina's real father support payments covering the periods for which Ruiz has paid or will pay. The County also may be unjustly enriched if it receives restitution from Beatriz for AFDC payments made during the period for which Ruiz has paid child support for Christina. It is within the power of the trial court to make an equitable assignment to Ruiz of restitution or support payments actually received by the County for the periods in question. We are confident the parties can provide the trial court with a workable method of insuring an equitable distribution of any restitution or support payments received by the County.
The order of December 12, 1996, is affirmed to the extent it sets aside the default and default judgment against respondent and determines that respondent is not the father of Christina. The order is reversed to the extent it determines that respondent is not entitled to reimbursement for past support paid to appellant on Christina's behalf and is discharged from the obligation to pay arrearages in such support accrued before July 16, 1996. As to those portions of the order, the matter is remanded to the trial court for proceedings consistent with this opinion.
1. The record is unclear about the mechanism by which Ruiz was able to stop paying, even though he was subject to a wage assignment order. A proof of service submitted in the present case by the County states that Ruiz was served with a copy of the original default judgment on June 19, 1991, at the offices of the family support division by a family support officer. The timing of Ruiz's presence at that office 15 days after the blood test was conducted seems to imply that he told representatives of the County about the test results on that day. The County's declaration filed in the present proceedings shows the wage assignment was “operative” through July 12, 1991. The record does not indicate whether the County terminated the wage assignment, Ruiz terminated his employment, or some other event intervened.
2. The County did not designate this transcript as part of the record on appeal. The information in our record does not indicate whether a verbatim record of the August 2, 1996, hearing exists.
3. We also note that on September 19, 1996, the Department of Motor Vehicles notified Ruiz his driver's license would be suspended effective February 16, 1997, for nonpayment of child support. Although the notice states that the case number to which it refers is “multiple cases,” the County has not contended in the present case that there are any additional child support cases pending against Ruiz.
4. The County is precluded from raising this issue in any event: “If the appeal is on the judgment roll alone ․ the evidence is conclusively presumed to support the judgment.” (9 Witkin, Cal. Procedure, supra, Appeal § 354, p. 402.)
5. Because the evidence establishes extrinsic fraud and reliance on the fraudulent misrepresentation, this case is wholly different from Robert J. v. Leslie M. (1997) 51 Cal.App.4th 1642, 1644-1645, 59 Cal.Rptr.2d 905. In that case, the putative father always doubted he was the child's father but elected to admit paternity “because he was concerned that a paternity suit would jeopardize his application to become a deputy sheriff․” (Id. at p. 1645, 59 Cal.Rptr.2d 905.)
6. Furthermore, Beatriz may have engaged in welfare fraud by causing the County to pursue Ruiz as Christina's father. (See, e.g., Welf. & Inst.Code, § 10980, subds. (a) [false statement to obtain aid], and (c) [false statement to obtain aid to which otherwise not entitled].) Restitution may be an available remedy against Beatriz in any criminal prosecution, even if Christina was entitled to AFDC benefits, since Beatriz's conduct caused economic loss to Ruiz. (See Pen.Code, § 1202.4.) As a “victim” of the crime Beatriz may have committed, Ruiz would be entitled to direct restitution. (See People v. Crow (1993) 6 Cal.4th 952, 956-957, 26 Cal.Rptr.2d 1, 864 P.2d 80.)
VARTABEDIAN, Associate Justice.
ARDAIZ, P.J., and WISEMAN, J., concur.
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