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Court of Appeal:
Fall of Paternity Judgment Doesn’t Void Support Order
Justices Say Florida Court’s Conclusion That It Lacked Jurisdiction Earlier to Make Parenthood Determination Doesn’t Mean That Past-Due Payments, Under Los Angeles Superior Court Order, Are No Longer Enforceable
By a MetNews Staff Writer
A man who was ordered by the Los Angeles Superior Court to pay child support, pursuant to a 2010 Florida judgment of paternity, is not relieved of his obligation to make back payments even though the parenthood determination was vacated in 2022 based on lack of personal jurisdiction 12 years earlier, the Court of Appeal for this district held Friday.
Presiding Justice Maria E. Stratton authored the unpublished opinion, filed Friday. It affirms a Dec, 2, 2022, order by Los Angeles Superior Court Judge Alexander C. D. Giza rejecting the contention by Pierre Richard that eradication of the paternity judgment compels wiping out the child-support order and, with it, an estimated $524,258.63 in arrearages.
Giza ruled that “vacating of the underlying Florida Paternity Judgment is a defect in this case that makes the Support Judgment in excess of jurisdiction,” not void as being based on an absence of fundamental jurisdiction.
Under Family Code §§3691 and 3692, he noted, a motion to set aside a support order must be made within six months of learning of a flaw. The judge said that “[c]ertainly no later than July 28, 2015, when Richard filed” an earlier “motion to vacate the Support Judgment, Richard was aware of this case and, from the Petition in this case, had notice of the Florida Paternity Judgment.”
He reasoned:
“Accordingly, Richard’s motion is denied as untimely.”
In any event, a judgment in excess of jurisdiction remains enforceable until attacked, he said, noting that Richard did not move for an order vacating the support order until July 7, 2022, by which time the child had already reached his majority, meaning that granting the motion “would have no practical effect.”
Appellant’s Contentions
Pasadena attorney Robert A. Brown, representing Richard, argued on appeal:
In the present case, the Florida Circuit Court ruled that, when the default judgment of paternity was originally entered in Florida, it lacked personal jurisdiction of Mr. Richard and that, therefore, the default judgment of paternity was void ab initio. Under the Full Faith and Credit clause of the U.S. Constitution [and case law], the lower court’s ruling applying California statutory law and jurisdictional law that it was not bound by the ruling of the Florida court to declare the California Default Child Support Judgment void was unconstitutional.
The brief goes on to say”
“Simply put, an unconstitutional judgment of paternity in violation of due process never morphs into an enforceable child support judgment.
“All cases uniformly hold that a judgment based on a prior judgment which was unconstitutionally entered in violation of due process for lack of personal jurisdiction is, in turn, also void.”
Responding to the contention of the mother, Louise Clare, and the Los Angeles County Child Support Services Department that it is too late for Richard to challenge the support order, Brown wrote:
“There is no ‘too late’ when it comes to a constitutional right of due process.”
He quoted the 1951 Court of Appeal decision by this district’s Div. One saying that “what is initially void is ever void and life may not be breathed into it by lapse of time.”
Stratton’s Opinion
Stratton wrote:
“We find the Los Angeles County Superior Court (LASC) had fundamental jurisdiction over Richard in the child support action. We also find the child support judgment is not void on the face of the judgment roll. We find the trial court did not abuse its discretion when it denied as untimely Richard’s motion to vacate the child support judgment.”
Finding that the support order weas voidable, not void, she wrote:
“The judgment of paternity was in effect and not vacated or set aside when the child support action commenced in California. The judgment of paternity did not ‘morph’ into a child support judgment. The LASC—more specifically, the family court division of the LASC—had subject matter jurisdiction to enter a judgment of child support in this case, irrespective of whether the underlying paternity finding was subsequently deemed flawed 11 years later….
“[T]he LASC had personal jurisdiction over Richard in this case. Richard conflates the issue of the LASC’s personal jurisdiction over him with the Florida court’s decision finding that Clare’s amended petition in the Florida paternity case was not served on Richard, leaving the Florida court with no personal jurisdiction over him. The Florida court’s personal jurisdiction, or lack thereof, over Richard in a legal matter in Florida’s Broward County has no bearing on the California court’s personal jurisdiction over Richard in a separate case in Los Angeles, California.”
Stratton said that because Richard did not file his request for an order vacating the support judgment “within the allotted six-month window,” there was “no abuse of discretion” in denying the motion. She commented:
“This case serves as a clear reminder of a well-established principle: parties must act diligently to preserve their rights and avoid forfeiting potential remedies through delay.”
The case is Clare v. Richard, B327010.
Objection to Rubin
Joining in Stratton’s opinion were Justice John Shepard Wiley Jr. and retired Court of Appeal Presiding Justice Lawrence Rubin, who sat in this district’s Div. Five until his retirement on March 3, 2024. Brown filed a letter objecting to Rubin’s participation.
One of the attorneys representing the Los Angeles County Child Support Services Department, as intervenor, is Deputy Attorney General Jessica C. Butterick. She formerly served as Rubin’s research attorney.
Rubin revealed that fact, as reflected in a July 22 letter from the court to counsel. The jurist did not recuse himself.
Brown responded on July 25, pointing to Code of Civil Procedure §170.1, applicable to Superior Court judges, saying that they Butterwick are disqualified from acting in a matter if a “lawyer in the proceeding was associated in the private practice of law with the judge.” The lawyer did not explain how a member of the Court of Appeal and a research attorney can be considered to be in private practice together.
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