Tuesday, June 2, 2026
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C.A. Says Failure to Check Child-Support Box Did Not Deprive Father of Due Process
Opinion Says Party Who Was Ordered to Pay More Than $700,000 Did Not Lack Notice Where Previous Separation Decree Called for Such Payments
By a MetNews Staff Writer
The Third District Court of Appeal has held that a father was not deprived of due process as to an order demanding that he pay his former spouse more than $768,478, following a hearing on a petition for dissolution of marriage at which he did not appear, based on the fact that his ex-wife did not check boxes on the form petition and subsequent request for order indicating that she was seeking child support during the proceedings.
Pointing to the fact that child support was ordered in a previous decree governing legal separation, the court declined to find that he was not given notice based solely on the absence of a check mark in the Judicial Council forms filed by his ex-wife.
Raising the due process claim was Nicholas Capos, who asserted the argument in 2024, four years after the 2020 order at issue, in a filing seeking vacatur of the support decree. Pacer Superior Court Commissioner Michael Jacques denied the request in April of last year.
Presiding Justice Laurie M. Earl authored Friday’s opinion, joined in by Justices Louis Mauro and Shama Hakim Mesiwala, which acknowledges that Nicholas Capos failed to file a timely notice of appeal from either the 1988 judgment of legal separation in which he was ordered to pay $2,000 in monthly child support to his ex-wife, LaShelle Capos, or the 2020 order finding that he owed more than three-quarters of a million dollars in arrears.
However, she found the appeal timely, saying that “he is appealing the 2025 order denying his request to vacate the child support portion of the 2020 order” and, while such orders are generally “not appealable,” she pointed out that there is an exception when “the underlying judgment is void.”
Saying that Capos’ “lack of notice argument is somewhat unique,” Earl remarked:
“He does not contend he had no notice of the judgment of legal separation entered in 1998, or of the marital settlement agreement, which was attached to and made a part of the judgment. The marital settlement agreement provided he owed LaShelle $2,000 a month in child support beginning in April 1998 and continuing until their daughter turned 18 (which occurred in August 2010), and the judgment of legal separation ordered the parties ‘to comply with each and every term and condition contained’ in that agreement. Nicholas thus clearly had notice he owed LaShelle $2,00 a month in child support until their daughter turned 18.”
Noting that “Nicholas also does not contend he had no notice of the dissolution petition, and, in any event, he filed a response to the petition” in which he “argued all payments required by the marital settlement agreement had been paid,” she commented: “Nicholas’s lack of notice argument is based entirely on the boxes LaShelle checked or failed to check on the dissolution petition and the subsequent request for order. On the dissolution petition, LaShelle checked a box noting, ‘There are no minor children,’ and Nicholas argues she thus failed to provide him with notice she would be seeking child support arrears in connection with the dissolution petition.”
Rejecting this view, Earl reasoned that his former spouse check “the only box [she] could (truthfully)” mark as the couple’s daughter was in her late 20s when the petition for dissolution of marriage was filed in 2019. She added:
“Nicholas also complains LaShelle failed to check the box requesting child support when she filed the subsequent request for order. That request (Judicial Council Forms, form FL-300) does have boxes to check regarding child support….LaShelle…was not asking the court to order child support because it had already been ordered….Instead, she was effectively asking the court to enforce the 1998 child support order by confirming Nicholas owed her child support arrears and interest thereon in the amount of $768,478.65.”
Distinguishing the 1990 California Supreme Court opinion in In re Marriage of Lippel, in which the court held that it was a denial of due process to enter a default judgment ordering a husband to pay child support where the mother did not check a box providing, “Support of children be awarded if need is found,” in her petition for dissolution, Earl wrote:
“Nicholas’s default was not taken in either the 1998 legal separation case or the 2019 dissolution case;…LaShelle clearly stated in the request for order that she was seeking an order confirming Nicholas owed her $768,478.65 in child support arrears; and…Nicholas appeared and defended (at least in writing) against the request for child support arrears. Lippel thus provides no support for Nicholas’s arguments.”
She added:
“Finally, we note Nicholas makes passing reference to the fact that he was not present at the August 2020 hearing and was not represented by counsel at the time. To the extent he contends this constituted a due process violation, we note he cites no legal authority for such a contention.”
The case is Marriage of Capos, 2026 S.O.S. 1637.
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