A California Appellate Court has ruled that Father’s motion to set aside a 1998 default child support judgment should have been granted by Trial Court because Trial Court never acquired personal jurisdiction over Father since he was never properly served with the Summons and Complaint. In the case of County of San Diego vs. Gorham, Family Support Division of San Diego County District Attorney’s Office (now Department of Child Support Services) filed, on October 15, 1997, a Complaint to establish Father’s paternity of child who was born in 1991, and for child support, retroactive child support, and health insurance coverage. On May 19, 1998, D.C.S.S. filed proof of service signed by a registered process server under penalty of perjury, stating that the process server had personally served Father with the Summons and Complaint on May 8, 1998, at 7:13 p.m. at a San Diego residential address. D.C.S.S. followed that up on June 18, 1998, with a request to enter Father’s default and they sent notice of that request and hearing date to Father at that same address. On July 15, 1998, Trial Court found that Father was Child’s father and ordered him to pay $341 per month for child support, plus child support arrearages of $12,000, payable at the rate of $100 per month beginning on August 1, 1998. Trial Court also ordered Father to provide health insurance coverage for Child, and issued a wage assignment order.
On March 13, 2002, Father met with D.C.S.S. caseworker regarding existing support judgment for his son from another relationship. Caseworker informed Father that there was another default judgment against him, then continued to explain details of the new judgment regarding his son, including "zero" arrearages for periods of time when he was incarcerated, including from February 1, 1998, through October 31, 1998. Caseworker did not discuss Child’s case because Child ceased to receive aid on August 31, 2000, but suggested that Father contact local family law facilitator for help him with that case.
When D.C.S.S. received intercepted funds from Father’s unemployment benefits in June 2002, and from May through July 2003, it allocated those funds between Father’s two cases.
Father was in Kern Valley State Prison in December 2007, when he received notification from D.C.S.S. that he owed $58,000 in child support arrearages in Child’s case. After his release in January 2008, Father retained counsel and on April 24, 2008, Father specially appeared through counsel to file a motion to set aside the 1998 default judgment on grounds of fraudulent service and to dismiss underlying Complaint. In supporting declaration, Father stated that he lived at the address on proof of service only from May to June 1997, and was incarcerated on the date that he was allegedly personally served by the process server. Father claimed that he had never been served with the Summons and Complaint, and attached copies of Trial Court’s minutes showing his guilty plea and sentencing. In opposition, D.C.S.S. asserted that address of alleged service was furnished by D.M.V. and that Father had failed to show that he had not posted bail and been released when alleged service occurred.
At the hearing on May 29, 2008, Father argued that he had been denied due process because D.C.S.S.’s failure to properly serve him meant that Trial Court had never acquired personal jurisdiction over him. D.C.S.S. countered that even if ineffective service made judgment void, he could not challenge judgment because he failed to file his set-aside motion within six months after he learned of it, in accordance with California Family Code Section 3691.
Trial Court then ordered the parties to file points and authorities regarding the application of Family Code Section 3691, and continued the hearing. At the continued hearing, Trial Court stated that it did not believe that process server had either attempted to or properly served Father, but it was troubled by Father’s waiting until 2008, after learning of default judgment in 2002. Trial Court then ordered parties to submit additional briefing on whether it ever acquired jurisdiction over Father and whether Section 3691 barred Father from seeking remedy.
On October 31, 2008, Trial Court issued a tentative decision to dismiss the entire case on the basis that fraudulent service precluded it from having personal jurisdiction over Father, but after further argument, took the matter under submission. On March 11, 2009, Trial Court issued a final statement of decision, finding that (1) lack of personal service made default judgment void for lack of personal jurisdiction; (2) false proof of service constituted extrinsic fraud; (3) Father’s set-aside motion was untimely under California Code of Civil Procedure Section 473.5(a) six month time limit or within reasonable time (Father did not act promptly, significant interests of Mother and County would be impaired by set-aside, and false proof of service was not intentionally or willfully false); (4) Father’s motion was untimely under California Family Code Section 3691, which preempts equitable set-aside and adequately addresses due-process considerations; and (5) request for dismissal under California Code of Civil Procedure Section 583.210 [failure to serve] was untimely. Accordingly, Trial Court denied Father’s motions.
Father appealed, and California Appellate Court has now reversed the Trial Court’s decision and has remanded the case back to Trial Court with specific directions. The Appellate Court has ruled that (1) lack of proper service on Father deprived Trial Court of personal jurisdiction and renders any judgment automatically void; (2) Trial Court retains inherent power to vacate default judgment that is void for lack of due process; (3) California Family Code Section 3691 does not preempt where Trial Court failed to acquire personal jurisdiction over litigant because of fraudulent service (whether intentional or unintentional); (4) D.C.S.S. failed to properly inquire into underlying facts before pursuing its complaint against Father; (5) there is no evidence that Father acquiesced in default judgment or treated it as enforceable; (6) Trial Court’s finding regarding California Code of Civil Procedure Section 583.210 was erroneous because dismissal was mandatory due to improper service; and (7) default judgment was void as violating the fundamental due process rights of Father since he was never served with the Summons and Complaint. The Appellate Court, therefore, has ruled that Trial Court abused its discretion by failing to dismiss this case, and thus, reverses the decision and remands the case back to Trial Court with directions to dismiss the case.
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