Friday, July 31, 2015
Defaulting Party in Dissolution of Marriage Action May Later Seek Modification—Court of Appeal
By a MetNews Staff Writer
A party who defaults in a dissolution of marriage case is not precluded from later seeking a modification of the child custody order, the Court of Appeal for this district held yesterday.
Presiding Justice Frances Rothschild of Div. One pointed to Family Law Code §3087, which provides:
“An order for joint custody may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order.”
“Nothing in this section or any provision of the Family Code suggests that it does not apply in cases where a divorce was granted via default judgment. To the extent that this provision conflicts with the general rules applicable to default judgments, the ‘general...provision must yield to one that is special.’ ”
The party seeking the modification was the former wife, Heather Olson. Her ex-husband, Christopher Olson, argued that her proper course, before seeking a modification, was to secure a relief from default.
“But relief from the default is not what [the former wife] sought. She did not ask that the dissolution of the marriage be set aside.”
Christopher Olson purported to appeal from the order by then-Los Angeles Superior Court Commissioner (now Judge) John Slawson that the parties participate in a “parenting plan assessment program.” That order, Rothschild said, was nonappealable.
The appeal was treated as if it were a petition for a writ of mandate, which was denied.
S. Roger Rombro, Melinda A. Manley, and Kelly A. Tufts of Rombro & Associates represented Christopher Olson. Heather Olson filed no brief.
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