Depart. Child Support Serv. v. Powell























Filed 2/7/13 Depart. Child Support Serv. v. Powell CA2/6











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION SIX




>

DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. BRIAN K. POWELL, Defendant and Appellant.	2d Civil No. B238444 (Super. Ct. No.BD086977) (Los Angeles County)
In re Marriage of CHANTAL and BRIAN K. POWELL.	(Super. Ct. No. SD019049) (Ventura County)
CHANTAL POWELL, Respondent, v. BRIAN K. POWELL, Appellant; DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent.

Brian K. Powell (Brian)
appeals an order denying his motion to vacate a 1993 default judgment for child
support in favor of respondent Department of Child Support Services (DCSS).href="#_ftn1" name="_ftnref1" title="">[1] Brian also filed a motion to quash service of
process claiming there was no valid service of the href="http://www.fearnotlaw.com/">summons and complaint by substituted
service. We conclude, among other
things, that: 1) the trial court
correctly ruled that his motion to vacate the default judgment was untimely, 2)
the court did not abuse its discretion in denying equitable relief to vacate
the default judgment, 3) the court did not err by denying his motion to quash
service, and 4) Brian has not shown the court erred by finding that the
substituted service at his mailing address was valid. We affirm.


FACTS

Brian and Chantal Powell
(Chantal) were married in 1987. They had
two children. In 1992, they separated.

Chantal contacted the
Child Support Division of the Los Angeles County District Attorney's Office (CSDLA)
for assistance in obtaining child support.
On August 27, 1992,
the CSDLA filed a civil action for support for the minor children against Brian
in the Los Angeles County Superior Court.

On November 30, 1992, Fred Sloan, a registered
process server for the CSDLA, served Brian by substituted service. (Code Civ. Proc., § 415.20.) He left a copy of the summons and complaint
with Tracy Martine at a residence in Sherman Oaks, California. Martine told him that Brian did not live
there, but he received his mail there.

Brian did not answer the
complaint. A default was entered against
him on March 11, 1993. A judgment establishing Brian's monthly child
support obligation was entered on April
20, 1993.

Chantal filed for
dissolution of her marriage in the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Ventura
County Superior Court on October
14, 1997. A process server
certified that Brian was served with the dissolution petition at California
Lutheran University 11 days later. Brian
did not answer and a default judgment was entered against him.

The Los
Angeles County
child support case was "registered in Ventura
County on March 2, 1999," and it was consolidated with
the dissolution action.

On April 16, 1999, the Ventura County District
Attorney (Ventura DA) "instituted a wage assignment against [Brian's]
wages with California Lutheran
University."

On December 7, 2000, the Ventura DA filed a motion
to determine the amount of past due child support Brian owed. On June
11, 2001, Brian requested a continuance of that motion. The continuance was granted.

In 2001, the child
support enforcement duties of the CSDLA and county district attorneys were
transferred to the DCSS, a state agency, and its local county affiliates. (Fam. Code, §§ 17303, 17304, 17305.)

On October 29, 2010, Brian filed a motion to quash
service and to set aside the March 11,
1993, default and the April
20, 1993, judgment. He
declared he first learned about the child support judgment on July 9, 2010, and he claimed the
substituted service was invalid.

Donald Kemp, an attorney
with the Los Angeles County Child Support Services Department, filed an
opposition declaration. He said Brian
had numerous contacts with the child support enforcement agencies regarding the
judgment in 1999, 2000 and 2001. Brian
made payments on the judgment in 1994.
In October 1999, he called to dispute the child support amount. Brian said he lost his job in 1993, and he
went to CSDLA to "explain his situation in an unsuccessful effort to
modify the amount."

Chantal declared that
Brian contacted her in 1995. Brian was
"very upset he had been pulled over for speeding and they confiscated his
Drivers License for 'back support.'"

The trial court denied
the motions. It found that Brian was not
credible, his motions were untimely, and he did not act with reasonable
diligence. It said he was aware of the
proceedings in 1999 or earlier. It ruled
the substituted service was valid.

DISCUSSION

An
Untimely Motion to Vacate

Brian claims the trial
court erred by ruling that his motion to set aside the default judgment was
untimely. We disagree.

The default judgment was
entered on April 20, 1993. Brian filed his motion to vacate on October 29, 2010.

Family Code section
3691, subdivision (c)(1) provides that:
1) where "service of a summons has not resulted in notice to a
party in time to defend the action for support" and a default judgment is
entered, 2) the party subject to the judgment may file a "motion to set
aside the default," but 3) that motion "shall be served and filed
within a reasonable time, but in >no event later than six months after the
party obtains or reasonably should have obtained notice
. . . of the support order."
(Italics added.)

Here there was a 17-year
delay between the judgment and the motion to vacate.

Brian claims he did not
discover a judgment was entered against him until July 2010. The trial court said he was not
"credible." It found he
"did not act with reasonable diligence" and that he "was aware
of the proceedings" in 1999 or "earlier."

Brian selected some, but
not all, documents filed by the parties to be included in the clerk's
transcript. The trial court however
reviewed all the court files. It found
that documents in the court records refuted Brian's claims. The court also found that
"exhibits" were "missing" from Brian's motion. Brian has the burden to produce a complete
record. Because he did not do so, we
must presume the court's findings are supported, in part, by documents not before
us. (Null
v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1532.) But even on the
incomplete record Brian has filed with this court, he has not shown error.

Brian claims the trial
court should have relied on the portion of his declaration where he stated he
did not discover the default judgment until 2010.

But Kemp's declaration
shows that: 1) Brian made payments on
the judgment in 1994; 2) in June 1999, Brian called the Ventura County DCSS
stating "there was a Los Angeles County order" and he asked about
"a release of his driver's license"; 3) in 1999, Brian visited the
"Ventura office in person and asked how to get credit for direct payments
he had made," 4) in October 1999, Brian "called Ventura disputing his
balance"; 5) in March 2000, Brian stated he wanted a support
"modification"; he wanted a "continuance to hire a lawyer, but
he was 'flat broke' because Ventura had levied his bank account."

Chantal's declaration
shows that Brian knew about the support judgment as early as 1995. A declaration by Jacqueline Tilkens, an
attorney with the Ventura County DCSS, reflects that Brian had numerous
contacts with the Ventura County
child support division between 1997 and 1999.
In 1999, it received "paperwork" he signed with an
"attached paystub."

This case was tried on
conflicting declarations. "Just as
with live testimony, it was for the trial court to consider the
declarations" and resolve the disputed issues. (Fredrics
v. Paige (1994) 29 Cal.App.4th 1642, 1647.)
"[W]e must resolve all evidentiary conflicts in favor of the
prevailing party . . . ." (Burch
v. Premier Homes, LLC (2011) 199 Cal.App.4th 730, 744.) "We may not insert ourselves as the
trier of fact and reweigh the evidence."
(Id. at p. 745.) Credibility was a matter exclusively for the
trial court to decide. (>Church of Merciful Saviour v. Volunteers of
America, Inc. (1960) 184 Cal.App.2d 851, 856; Lohman v. Lohman (1946) 29 Cal.2d 144, 149.) "'"When the issue is tried on
affidavits . . . and where there is a substantial conflict in the
facts stated, a determination of the controverted facts by the trial court will
not be disturbed."'" (>Fredrics, at p. 1647.) Brian has not shown the trial court erred in
finding he did not act with reasonable diligence in moving to set aside the
default judgment. The court could
reasonably find that he was at least 10 years beyond the statutory deadline.

>Relief in Equity

Brian contends the trial
court erred by not exercising its equitable power to grant relief from the
judgment. He claims his case is
analogous to extrinsic fraud cases where defaulted parties are granted relief
after exceeding the statutory deadlines for relief from default.

Where "'a motion to
vacate a default judgment is made' beyond the statutory deadline for relief, it
is "'directed to the court's inherent equity power.'" (Gibble
v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.)

But a party seeking
equitable relief "must satisfy three elements: 'First, the defaulted party must demonstrate
that [he or she] has a meritorious case.
Secondly, the party . . . must articulate a satisfactory
excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate
diligence in seeking to set aside the default once . . . discovered.'" (Gibble
v. Car-Lene Research, Inc., >supra, 67 Cal.App.4th at
p. 315.) Brian cannot meet this
standard because the court found he did not act with due diligence. Moreover, he did not testify or present
admissible evidence at the hearing to show he had a meritorious defense or to
demonstrate why laches did not bar equitable relief. (In re
Marriage of Park (1980) 27 Cal.3d 337, 345.)

There are specific time
limits for equitable relief involving motions to set aside support orders. The Court of Appeal in In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910, said
the "'traditional "equitable" set-aside relief is >statutorily preempted with regard to >support orders.' [Citation.]
[S]ection 3691 is the exclusive set-aside remedy." Consequently, based on the trial court's
findings, Brian's motion was filed well beyond that statute's six-month
limitations period from the date of discovery.
(Fam. Code, § 3691, subd. (c)(1).)

But even apart from
section 3961, our Supreme Court has repeatedly held that "a motion to
vacate a judgment should not be granted
where it is shown that the party requesting equitable relief has been guilty of
inexcusable neglect or that laches should attach." (In re
Marriage of Park, supra, 27
Cal.3d at p. 345, italics added.)

Brian cites >County of San Diego v. Gorham (2010) 186
Cal.App.4th 1215. There the Court of Appeal said, "When a judgment or
order is obtained based on a false >return of service, the court has the
inherent power to set it aside [citation], and a motion brought to do so may be
made on such ground even though the statutory period has run." (Id.
at p. 1229, italics added.) But it
also said, "Because of the strong public policy in favor of the finality
of judgments, equitable relief from a default judgment or order is available >only in exceptional circumstances." (Id.
at pp. 1229-1230, italics added.) In >Gorham, the exceptional circumstances
involved a process server who committed "perjury" in his declaration
of service. He falsely claimed he served
Gorham at one address at a time when "Gorham was in custody in
jail." (Id. at p. 1231.) The
court said this "constitutes evidence of an intentional false act that was used to obtain fundamental
jurisdiction over Gorham." (>Id. at p. 1232, italics added.)

Here the trial court
found that "the facts of the instant case" did not fall within the >Gorham rule. Brian suggests this case is analogous to >Gorham, but he did not produce evidence
to show that the process server committed perjury or made a falsified return of
service. At the hearing on his motion,
Brian did not testify. His attorney did
not call any witnesses or present evidence.
Instead, he relied on Brian's declaration to claim the summons was
served at the wrong address and that the process server acted
unreasonably.

But reliance on Brian's
declaration does not assist him on appeal because the trial court found he was
not credible. It said, "His lack of
credibility and failure to act diligently precludes this court from granting
him relief of any equitable nature."
Many of the arguments Brian advances are based on facts he alleged in
his declaration. But the court could
disregard them. "[A] trial judge
has an inherent right to disregard the testimony of any witness
. . . when he [or she] is satisfied that the witness is not
telling the truth . . . ." (La
Jolla Casa De Manana v. Hopkins
(1950) 98 Cal.App.2d 339, 345-346.) That
is the case even where appellant's declaration is uncontradicted. (In re
Marriage of Hofer (2012) 208 Cal.App.4th 454, 460; Lohman v. Lohman, supra,
29 Cal.2d at p. 149.)

Brian claims "the
trial court failed to allow [him] to present evidentiary
testimony . . . ."
The record does not support him.
At the morning session of the hearing on Brian's motion, the court said it
intended to have an evidentiary hearing.
Counsel for the DCSS proposed a procedure for the afternoon
session. She said the court: 1) could
consider additional "exhibits" and 2) "[we] can >argue it. And the Court can take it under submission for ruling." (Italics added.) At this point Brian's counsel had the
opportunity to advise the court that he disagreed and wanted Brian to
testify. Instead, he told the court,
"That's fine, your Honor."
Consequently, Brian is estopped to claim error. (Transport
Ins. Co. v. TIG Ins. Co. (2012) 202
Cal.App.4th 984, 1000; People v. >Level (2002) 97 Cal.App.4th 1208,
1213.)

>The Motion to Quash the Substituted Service

Brian claims his motion
to quash service should have been granted because the trial court never acquired
jurisdiction over him. He claims the
substituted service was invalid because the process server went to the wrong
address and did not act with reasonable diligence. He contends the court consequently erred by
denying his motion. We disagree.

Substituted
Service Requirements

The trial court found,
"The affidavit of process server Fred Sloan establishes that he went to
the address on file with the District Attorney's Child Support Division. He was informed by a person at that address,
Tracy Martine, that [Brian] did not reside at that address, but that >he received mail there. Mr. Sloan left a copy of the documents at
that address. In light of the fact that
Mr. Sloan was advised [Brian] did not reside at that address, he determined
that further attempts at personal service at that location would be
futile. He then mailed a copy of the
Summons and Complaint to that address and completed the proof of service and
affidavit." (Italics added.) The court ruled this substituted service
complied with Code of Civil Procedure section 415.20.

Code of Civil Procedure
section 415.20, subdivision (b) provides, in relevant part, that "a
summons may be served by leaving a copy of the summons and complaint at the
. . . usual mailing address . . . in the presence of
. . . a person apparently in charge of his or her . . .
usual mailing address . . . at least 18 years of age, who shall be
informed of the contents thereof, and by thereafter mailing a copy of the
summons and complaint . . . at the place where a copy of the summons
and complaint were left."

Reasonable
Attempts at Service

Brian claims Sloan did
not act reasonably because: 1) Sloan did
not have valid address information, and 2) Sloan did not make additional
attempts to personally serve him at his office or elsewhere after serving
Martine. But the trial court could find
that Sloan acted reasonably. It noted
that he obtained the address information from a governmental source the court
found to be reliable - the District Attorney's Child Support Division
records. Given the incomplete record, we
must defer to the trial court's findings on this issue. (Null
v. City of Los Angeles, >supra, 206 Cal.App.3d at p. 1532; see
also Evid. Code,§ 664.) Moreover,
the record reflects that when Sloan arrived at the residence he learned that
Martine knew who Brian was because she said Brian received mail there. Consequently, the court could find that
Martine essentially confirmed that the mailing address information in CSDLA's
records was correct. The court also found
Sloan did not have to make additional attempts to serve Brian at that address
because Martine confirmed that he did not live there. The court was correct. "It would be futile for the process
server to return to that address two more times and attempt service at a
residence where [Brian] no longer lived."
(Ellard v. Conway (2001) 94
Cal.App.4th 540, 545.)

Brian claims there were
insufficient attempts to locate him at other addresses. A process server must act reasonably. But he or she is "not required to
'exhaust all avenues of obtaining a current address.'" (Ellard
v. Conway, supra, 94 Cal.App.4th
at p. 545.) Sloan declared that he
did not know of any other address for service.
Citing to his own declaration, Brian claims Sloan and CSDLA could have
served him at other places. But the
court acted within its authority by not relying on Brian's declaration after
finding he was not credible. In his
declaration, Brian said that because he worked at the Los Angeles Police
Department (LAPD), the CSDLA should have known his office address because it
was also "his employer at the time."
He said, "I was employed by the
same entity that filed suit against me." (Italics added.) But the trial court found these assertions
were false. It noted that LAPD is a city
agency, but CSDLA is part of county government.

There is evidence
showing efforts were made to locate Brian's address. The CSDLA sent a letter to LAPD in 1992
asking, among other things, for Brian's home address. But LAPD responded without providing any home
or office address information or any phone number where he could be
reached. Brian suggests Sloan could have
obtained his home address by simply contacting the LAPD. But that is not the case. (Hackett
v. Superior Court (1993) 13 Cal.App.4th 96, 99 [court order requiring
disclosure of sheriff deputy's home address was vacated because that
information is confidential].)

Sloan filed a
declaration of due diligence with the proof of service. He declared he was unable to make personal
service on Brian because his home and office address were not known to
him. He said he made a "'due
search, careful inquiry and diligent
attempt at the usual place of receiving mail,'" to attempt "personal
service" on Brian. (Italics
added.) Brian claims Sloan was not
credible. But credibility was a matter
for the trial court and it implicitly found Brian failed to show that Sloan did
not act "in good faith." (>Davis v. Allstate Ins. Co. (1989) 217
Cal.App.3d 1229, 1232.)

Moreover, Karen
Hostetler, an agent of the district attorney, signed the declaration of mailing
on the district attorney's request to enter default. She declared that on March 3, 1993,
"14056 Valleheart Dr., #316 Sherman Oaks, Ca 91423" was Brian's
"last known address." That
supports Sloan's claims. The address she
mentioned is the same service address listed in Sloan's declaration. In the 1993 support judgment, the trial court
listed "14056 Valleyheart Drive # 316 Sherman Oaks, California 91423"
as Brian's address. (>Doran v. Burke (1953) 118 Cal.App.2d
806, 807 ["Recitals in a judgment are presumed to be true and
correct"].) The superior court
clerk's "certificate of mailing" of the April 22, 1993, notice of
entry of judgment also lists that same Sherman Oaks address. Sloan's and Hostetler's declarations and
these court records support the trial court's findings. (Evid. Code. § 664; Doran, at p. 807; Christie
v. Superior Court (1933) 218 Cal. 423, 425.)

Inadequate
Declaration of Service

Brian claims the service
was invalid because Sloan's declaration did not contain a reference to
Martine's age. He contends it
consequently did not comply with Code of Civil Procedure section 417.10,
subdivision (a). That section provides,
in relevant part, "Proof that a summons was served on a person within this
state shall be made: [¶] (a) If
served under Section . . . 415.20 . . . by the affidavit of
the person making the service showing the time, place, and manner of service
and facts showing that the service was made in accordance with this chapter. The
affidavit shall recite or in other manner show the name of the person to whom a
copy of the summons and of the complaint were delivered, and, if
appropriate, his or her title or the capacity in which he or she is served, and
that the notice required by Section 412.30 appeared on the copy of the summons
served, if in fact it did appear."
(Ibid., italics added.)

The person served by
substitute service must be at least 18 years of age. But the portion of Code of Civil Procedure
section 417.10 describing what the "affidavit shall recite" does not
make reference to the person's age. It
requires the person's name "and, if appropriate, his or her
title." (Id., subd. (a).) Sloan
complied because he named Martine as the person who received the summons and
complaint.

The prior sentence in
this section requires "facts showing that the service was made in
accordance with this chapter."
(Code Civ. Proc., § 417.10, subd. (a).) Brian claims this provision must be strictly
construed to mean that if the affidavit does not mention Martine's age the
service is invalid. But in Sloan's
declaration he said the form of service was "substituted
service." The printed proof of
service court form attached to the declaration describes the requirements of
substituted service, including that the recipient must be "18 years of
age." Brian has not shown why the
trial court could not reasonably infer that Sloan's reference to
"substituted service" implicitly referred to the substituted service
requirements in that attached court form.


But even if Sloan made
an omission, courts have not applied the strict construction analysis Brian
proposes. In Trackman v. Kenney (2010) 187 Cal.App.4th 175, the Court of Appeal
rejected a claim that service was void because the affidavit did not contain
the name of the person served as required by section 417.10. The "proof of substituted service"
showed service on "'John Doe, co-resident.'" (Id.
at p. 179.) The court noted that
prior case law had required "strict compliance for completion of
constructive service." (>Id. at p. 184.) But current law uses a "liberal
construction rule" so that service will not be defeated for "minor
deficiencies." (>Ibid.)
The court said the purpose of this provision "is to enable the
recipient to be located in the future, should the claim of service be
challenged." (Ibid.) Here that goal was
achieved by naming Martine and listing the date, place and manner of service.

Brian relies on what he
considers to be Sloan's incomplete service affidavit. But such an omission or irregularity does not
automatically render the service void. (Trackman
v. Kenney, supra, 187 Cal.App.4th
at p. 184; Hearn v. Howard (2009) 177
Cal.App.4th 1193, 1204 [omission in service declaration did not render service
void]; Pasadena Medi-Center >Associates v. Superior Court (1973) 9
Cal.3d 773, 778; Hershenson v. Hershenson
(1962) 205 Cal.App.2d 382, 385; see also Bell
v. Bell, Kalnick, Klee & Green
(N.Y. 1998) 246 A.D.2d 442, 443 ["The defects in the affidavit of service
do not defeat an otherwise properly commenced action, but are mere
nonjurisdictional irregularities"].)
"Where a reasonable attempt has been made to comply with a statute
in good faith, and there was no attempt to mislead or conceal, the doctrine of
substantial compliance holds that the statute may be deemed
satisfied." (Davis v. Allstate Ins. Co., supra,
217 Cal.App.3d 1229, 1232.)

Sloan said "the
substituted service was properly
made" and he described Martine as the "person in charge of usual place of receiving mail." (Italics added.) From Sloan's declaration, the trial court
could find that Martine both resided at the place where Brian received his mail
and knew who Brian was. (Evid. Code,
§ 647; Palm Property Investments,
LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) Brian did not allege that he did not know who
Martine was and he admitted he had previously lived at that address. The trial court could reasonably infer that
if Brian believed Martine was not 18, he would have provided evidence on that
issue. Because of his connection to that
residence and because the court found he received mail there, the court could
find that he was in the best position to know Martine's age. (Evid. Code, § 413; Moss v. Superior Court (1998) 17 Cal.4th 396, 427.)

Moreover, as the party
challenging a registered process server's declaration post judgment, Brian had
the burden to produce evidence. (Evid.
Code, § 647; Palm Property >Investments, LLC v. Yadegar,> supra, 194 Cal.App.4th at p. 1427
[registered process server's proof of service creates "'a presumption
affecting defendant's burden of producing evidence'"]; >Christie v. Superior Court, >supra, 218 Cal. at p. 425.) A party who claims the person served is not
the proper age has the burden to present proof on that issue. (>Christie, at p. 425; >Woods v. Congress Financial Corp. (Ga.Ct.App. 1979) 253 S.E.2d 834, 835; >Holmen v. Miller (Minn. 1973) 206 N.W.2d
916, 919-920.)

The parties cite no
California cases directly on point. But
courts in other jurisdictions have discussed the issue of defective service
when the affidavit of service did not mention the age of the person
served. In Woods v. Congress Financial
Corp., supra, 253 S.E.2d at page
835, a deputy sheriff's substituted service declaration listed the date, place
and manner of service. But it did not
include the age of the person served, nor did it contain the statutory language
that the person was "of suitable age and discretion" to be served
with process. The defaulted defendant
claimed the declaration was defective, but it did not present evidence
regarding the age of the person served at the hearing to challenge
service. The appellate court found the
burden was on the party challenging service to prove the person served was not
of suitable age. Because the defendant
did not meet that burden, service was presumed to be valid. (Ibid.)


Here Brian presented no
evidence about Martine's age at the hearing, and he did not claim Martine was
under 18 in his declaration. He made no
offer of proof at the hearing that he had evidence to show that Martine was
under 18. The trial court could find
these omissions undermined Brian's suggestion that Sloan may have served an
underage person. (Evid. Code,
§§ 413, 647; Christie v. Superior
Court, supra, 218 Cal. at
p. 425; Woods v. >Congress Financial Corp., >supra, 253 S.E.2d at p. 835.)

The trial court could
reasonably rely on the rebuttable presumption that official duty is regularly
performed and that Sloan, as an agent of the district attorney and a registered
process server, would not be expected to serve a minor. (Evid. Code, §§ 647, 664; >Woods v. Congress Financial Corp., >supra, 253 S.E.2d at p. 835.) The court entered the 1993 support judgment
relying on the "documents" presented by the district attorney. "The presumption arising from the former
judgment is, of course, in favor of the regularity of the service, and the
burden is on the party attacking it."
(Christie v. Superior Court, >supra, 218 Cal. at p. 425.) The court could and did find Brian did not
rebut that presumption.

Other
Grounds for Affirmance

Moreover, even had Brian
shown that Sloan made errors in performing service and on his proof of service,
the result does not change. His motion
to quash was included as part of his motion to vacate. But he has not shown why the trial court
could not reasonably find that the motion to quash was also barred as
untimely. (Fam. Code, § 3691, subd.
(c)(1); In re Marriage of Zimmerman, >supra, 183 Cal.App.4th at p. 910; >Stafford v. Mach (1998) 64 Cal.App.4th
1174, 1186; In re >Marriage of Park, supra, 27 Cal.3d at p. 345; Fidelity Bank v. Kettler (1968) 264 Cal.App.2d 481, 487 [motion to
quash barred by "a distinct badge of laches"].)

Moreover, the trial
court found that in 2001, Brian sought and obtained a continuance of the
Ventura DA's motion to determine the amount of his back child support. Brian told the district attorney's office
that he needed a continuance as he was seeking a modification of the amount
owed. The trial court said the court's
minute order reflects the hearing "was continued 'On Motion of Mr. Powell (per phone call to D.A.).'" (Italics added.) Brian has not shown why the court could not
find that his successful motion for a continuance of a hearing on the merits
constituted a general appearance that waived any challenges to service. (366-386
Geary St., L.P. v. Superior Court
(1990) 219 Cal.App.3d 1186, 1194, fn. 2;
Zobel v. Zobel (1907) 151 Cal. 98, 101 ["[A]n appearance for any other
purpose than to question the jurisdiction of the court is
general. . . . It is
difficult to perceive how the application of the defendant for a continuance of
the hearing could operate other than as a personal appearance in the
case"].)

We have reviewed Brian's
remaining contentions and we conclude he has not shown error.

The judgment is
affirmed. Costs on appeal are awarded in
favor of respondent DCSS.

NOT TO BE PUBLISHED.







GILBERT,
P.J.

We concur:







YEGAN, J.







PERREN, J.



JoAnn
Johnson, Commissioner



Superior
Court County of Ventura



______________________________





Stolar Associates,
Steven R. Stolar, Evan L. Bardo for Defendant and Appellant Brian K.
Powell.



Kamala D. Harris,
Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General,
Linda M. Gonzalez, Supervising Deputy Attorney General, Richardo Enriquez,
Deputy Attorney General, for Plaintiff and Respondent Department of Child
Support Services.



No appearance for
Respondent Chantal Powell.