IN RE: the Marriage of James N. BECKER (1982)

Yvonne E. Becker (wife) appeals from an order of the Superior Court of Los Angeles County denying her motion to set aside her default.

On March 11, 1980, respondent James N. Becker (husband) filed a petition to dissolve his marriage to wife and a summons was issued on that date.   Wife acknowledged receipt of a copy of the petition and summons on April 7, 1980.   Wife did not file a response.   Husband filed a request to enter wife's default on May 13, 1980, and the default was entered by the clerk of the court on that date and set for hearing on July 28, 1980.

Husband's counsel appeared at the default hearing.   Husband was in the United States Army and stationed in West Germany and did not appear.   Wife was present at the hearing, without counsel.   Husband's counsel had an affidavit executed by husband and read it into the record.   In addition to the usual averments concerning jurisdiction and irreconcilable differences, the affidavit recited that the parties had entered into a property settlement agreement and requested the court to receive it into evidence and approve it.   The property settlement agreement dealt with the issues of child custody and visitation, child support, spousal support and division of personal and real property.

In response to the court's questions, wife stated that she signed the agreement but was forced into it without representation of counsel and objected to it at this time.   Husband's counsel suggested that the dissolution be granted and that all of the other issues be reserved to a later date.   Wife neither agreed nor objected to this.   The court granted the interlocutory judgment of dissolution of marriage and continued the hearing to September 24, 1980, to enable wife to obtain counsel.   It was specifically mentioned at the hearing that wife's default had been taken and that there would have to be a motion to set aside the default.   It is also apparent from the record that those persons present at the hearing believed that husband would proceed to obtain a judgment on the reserved issues on September 24 if wife's default was not set aside.

An interlocutory judgment of dissolution of marriage was prepared and signed by the court on July 28, 1980.   It recited that the interlocutory judgment of dissolution of marriage was granted and that all other matters were reserved.

Wife retained counsel who filed a motion to vacate the default, a proposed response and other documents.   Wife's declaration in support of the motion recited that she had appeared at the default hearing on July 28, and had advised the court that she did not object to the dissolution but did not understand or agree to a default or any property settlement agreement.   The motion was set for hearing on September 24, 1980, the date to which the default hearing on reserved issues had been continued.

On September 24, wife's motion to vacate the default was heard and denied.   Husband did not proceed with the default hearing on the reserved issues.   Instead, the matter was placed off calendar.   No further proceedings have been conducted to date and no further judgment on reserved issues has been made by the court.

Wife appeals from the order denying the motion to vacate the default.

Three issues are presented by this appeal:

(1) Did the court set aside wife's default at the hearing on July 28?

(2) Is the court's order of September 24, denying wife's motion to vacate her default an appealable order?

(3) Did the court err in denying wife's motion to vacate the default?

I

 The court did not vacate wife's default at the hearing conducted on July 28.

There is nothing in the record to support this contention.   Wife appeared at the default hearing without counsel.   Husband's counsel stated, “By bifurcating the matter, I do not wish to waive the right of Mr. Becker to rely on the default.”   The court responded, “I understand.”   The dissolution was granted and all other matters were reserved and continued.   The hearing on July 28 concluded with the expectation that wife would obtain counsel and file a motion to vacate her default.   The court made no order vacating the default.

II

Husband contends that the order denying wife's motion to set aside her default is not appealable.   In support of his position, husband cites the general rule that no appeal lies from an order denying a motion to vacate a default on which no judgment has been given and that the remedy available to the aggrieved party is to appeal from the default judgment entered after the ruling was made.   (Sherman v. Standard Mines Co. (1913) 166 Cal. 524, 525, 137 P. 249;  Tregambo v. Comanche M. and M. Co. (1881) 57 Cal. 501, 503;  Kester Motors, Inc. v. Haddad (1952) 109 Cal.App.2d 369, 373, 240 P.2d 1011;  Turner v. Follmer (1948) 84 Cal.App.2d 815, 191 P.2d 777.)   He further contends that since no judgment has been entered on the reserved issues that the appeal should be dismissed.

 The rule that no appeal lies from an order denying a motion to vacate a default on which no judgment has been given works well in most cases.   On the one hand, if the plaintiff proceeds to obtain a default judgment after the motion has been denied, the defendant may appeal from the judgment and raise the issue of the court's denial of the motion on appeal.   If the appellate court agrees, it will vacate the default judgment, set aside the default and remand the case for trial.   On the other hand, if the plaintiff does not proceed to obtain a default judgment, the defendant is not ordinarily adversely affected.

However, this case presents a unique situation.   The court bifurcated the issues at the default hearing on July 28, granted the dissolution and continued all other issues to September 24.   Wife obtained counsel and filed a statutory motion to set aside the default pursuant to Code of Civil Procedure section 473.   Her motion was heard and denied on September 24.   Instead of proceeding to obtain a default judgment on the reserved issues after her motion was denied, husband took no further action, allowed the matter to go off calendar and has not obtained a judgment to date.   At this time, husband has obtained all that he apparently wants and needs—that is, the dissolution of the marriage and a property settlement agreement with which he is satisfied.   He also contends that wife is barred from obtaining appellate review of the trial court's order denying her motion to set aside her default because he has not obtained a judgment on the reserved issues.   Unlike the usual case, wife is left without standing to require the husband to proceed to a hearing on the reserved issues and, if husband's position is accepted, she's left without a means of obtaining appellate review of the order denying her motion.

In In re Marriage of Fink (1976) 54 Cal.App.3d 357, 126 Cal.Rptr. 626, the court held that the bifurcation of the issue of dissolution from the other issues involved in a marriage dissolution proceeding was permissible and did not violate the one-judgment rule.   In arriving at this conclusion, the court stated that the policy of the Family Law Act (Civ.Code, § 4000 et seq.) was to permit the prompt and simple severance of a marriage relationship which had irrevocably failed and that the court should employ novel and practical procedures in family law cases to accomplish the purposes of the act.   It also quoted rule 1249 of the California Rules of Court in support of its decision.  Rule 1249 states:

“In the exercise of the court's jurisdiction pursuant to the Family Law Act, if the course of proceeding is not specifically indicated by statute or these rules, any suitable process or mode of proceeding may be adopted by the court which appears conformable to the spirit of the Family Law Act and these rules.”

In our opinion, the facts of this case require us to employ the kind of novel and practical procedures which Fink and rule 1249 envision to accomplish the purposes of the act.

Wife's default was entered on May 13.   She moved to set her default aside pursuant to Code of Civil Procedure section 473.   Just as her appeal from a default judgment entered after the denial of her motion would have necessarily included a request to vacate the judgment, if there had been one, so does her motion include a request to set aside the default judgment of July 28.   The court could not have granted her motion without vacating the default judgment.   For that reason, we will construe wife's motion to set aside her default as including a request to vacate the default judgment entered on July 28.

The default judgment of July 28 is an appealable judgment.  (In re Marriage of Fink, supra, 54 Cal.App.3d at p. 366, 126 Cal.Rptr. 626.)   Wife's motion to vacate the default judgment and to set aside the default was a statutory motion brought pursuant to Code of Civil Procedure section 473.   It is established that an appeal lies from the denial of a statutory motion to vacate an appealable judgment.  (Spellens v. Spellens (1957) 49 Cal.2d 210, 229, 317 P.2d 613;  Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 282, 153 P.2d 714;  Martin v. Johnson (1979) 88 Cal.App.3d 595, 603–604, 151 Cal.Rptr. 816;  In re Marriage of Simmons (1975) 49 Cal.App.3d 833, 836, 123 Cal.Rptr. 213;  Sanford v. Smith (1970) 11 Cal.App.3d 991, 998, 90 Cal.Rptr. 256;  Daley v. County of Butte (1964) 227 Cal.App.2d 380, 389, 38 Cal.Rptr. 693;  6 Witkin (2d ed. 1971) Appeal, § 94, pp. 4100–4102.)

III

Wife contends that the trial court erred in denying her motion to vacate the default entered on May 13.   We agree.

It is well established that a motion to set aside a default is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse of discretion, an appellate court will not disturb the trial court's order.  (Brill v. Fox (1931) 211 Cal. 739, 743, 297 P. 25;  Martin v. Johnson, supra, 88 Cal.App.3d at p. 604, 151 Cal.Rptr. 816;  MacKinnis v. McHugh (1954) 128 Cal.App.2d 774, 776, 276 P.2d 51;  Vartanian v. Croll (1953) 117 Cal.App.2d 639, 644, 256 P.2d 1022;  Miller v. Lee (1942) 52 Cal.App.2d 10, 15, 125 P.2d 627.)

 It is also well established that Code of Civil Procedure section 473 is a remedial statute which is highly favored and liberally applied to carry out the policy of permitting trial on the merits.  (Riskin v. Towers (1944) 24 Cal.2d 274, 279, 148 P.2d 611;  Brill v. Fox, supra, 211 Cal. at pp. 743–744, 297 P. 25;  Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 470, 221 P. 204;  Vartanian v. Croll, supra, 117 Cal.App.2d at p. 644, 256 P.2d 1022;  Miller v. Lee, supra, 52 Cal.App.2d at p. 15, 125 P.2d 627;  5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 126, p. 3702.)

 These two important principles, i.e., the policy to uphold the broad discretion of the trial court in the absence of clear abuse and the policy of liberally applying the remedial provisions of the statute in favor of trial on the merits, are given different weight depending upon the particular facts of the case in question and whether the trial court granted or denied the motion.   Appellate courts will ordinarily uphold a motion granting relief under section 473, thus giving force to both principles.   However, where the lower court denies relief the two basic principles may come into conflict.   When this happens, the case will be scanned more carefully and the second principle will be given greater weight in borderline cases.   Consequently, the lower court's order denying relief has a greater likelihood of being reversed in close cases.   Also, the opinions in these cases seem to place importance upon whether the setting aside of the default will seriously prejudice the adverse party.  (Brill v. Fox, supra, 211 Cal. at pp. 743–744, 297 P. 25;  MacKinnis v. McHugh, supra, 128 Cal.App.2d at p. 776, 276 P.2d 51;  5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 164, p. 3737 and cases cited therein.)

 In the instant case, wife claims she did not know what the summons and petition meant when she received them and did not have the money to consult with an attorney when she was served.   Her default was entered only six days after the time expired within which she could have filed a response.   She was apparently advised or learned in some manner that the default hearing was set on July 28.   She appeared in court at that time, expressed her opposition, was advised that she would have to obtain counsel and take steps to set aside her default, and obtained a continuance of the reserved issues to September 24.   She acted promptly to obtain counsel and filed her motion together with all necessary supporting papers on August 27.   Her motion to set aside the default was denied on September 24.   Wife contends that her failure to consult an attorney and file a response constituted “inadvertence” and “excusable neglect” within the meaning of Code of Civil Procedure section 473 and that the trial court erred in not granting the motion and permitting her to file a response.

The court appears to have balanced the equities in the case of Bernards v. Grey (1950) 97 Cal.App.2d 679, 218 P.2d 597, which involved a weak claim of inadvertence and excusable neglect.   In Bernards, the defendant, who was the administrator of a decedent's estate, was served with a copy of a complaint and summons on May 17, 1948, while he was standing outside the courtroom door in the county courthouse discussing a probate sale with his attorney and two other men.   At the time he received the summons and complaint, he placed them in his briefcase, merely noting that they referred to the present action, and did not bring the fact that he had received them to his attorney's attention.   He claimed that he was not aware of the nature of the papers when he received them and failed to bring them to counsel's attention through inadvertence.   No answer was filed and at plaintiff's request a default was entered by the clerk on June 22, 1948.   No judgment was entered.   It was not until on or about July 1, 1948, that the defendant, having the matter called to his attention by his attorney, checked his files and briefcase and found the documents.   On July 10, 1948, he filed a notice of motion to set aside the default on the grounds of inadvertence and excusable neglect.   The motion was granted and the trial court's decision was upheld on appeal.

The instant case appears to be the kind of borderline case in which the policy in favor of trial on the merits should take precedence over the policy of not disturbing the exercise of the trial court's discretion.   Also, it's difficult for us to see how the opening of the default will seriously prejudice husband.   He did not proceed to obtain a judgment on the reserved issues on September 24 and he has not done so to date.   The matter remains unresolved.   In all fairness, wife should be permitted to file a response and have the case tried on the merits.

The order denying relief under Code of Civil Procedure section 473 is reversed and the trial court is directed to set aside the default judgment of July 28 and the default entered on May 13 and permit wife to file her response.

FOOTNOTES

FOOTNOTE.  

BYRNE,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

SPENCER, P.J., and LILLIE, J., concur.