Marriage of Delauer

Filed 8/22/07 Marriage of Delauer CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In this divorce proceeding, the wife argues the judgment is void because it was entered by an attorney who did not fulfill the constitutional requirements that would authorize him to serve as a temporary judge. We agree and reverse the judgment as void.

Background

Marilee Lynn Delauer (Wife) petitioned for divorce from Charles Paul Delauer III (Husband) in 2001. Temporary child and spousal support and child custody and visitation orders were made in 2002. A settlement conference took place in February 2004. Although Husband informed the court in March 2004 that settlement had been reached, the parties apparently were unable to formalize their agreement. Settlement talks continued into June 2004. On July 9, 2004, Wifes attorney told the court Husband had signed a settlement agreement and the attorney needed to confirm the agreement with Wife. The agreement was never presented to the court to be entered as a judgment. In January 2005, Wife moved for modification of child and spousal support. Trial was set for January 27, 2006.

On January 27, 2006, Wifes attorney appeared, entered a special appearance for Husbands attorney, and informed the court that the parties had stipulated to a judge pro tem. The trial court record does not include a written stipulation signed by the parties, a court order appointing attorney Timothy Birnie to serve as a temporary judge in the matter, or any documentation that Birnie took the oath of office. (See Cal. Const., art. VI,  21; Cal. Rules of Court, rule 2.831.)[1]

A judgment of dissolution was filed May 22, 2006. The judgment is signed by Tim Birnie on a signature line designated Judicial Officer. In an attachment, Birnie describes the events that led to the entry of judgment: On February 23, 2006 in Sebastopol, California, the parties stipulated that TIM BIRNIE would act as a Settlement Conference Judge and, if settlement failed, as the Judge to decide all remaining issues in this proceeding. At the conclusion of the session on February 23, 2006, the parties reached an agreement. Judge Pro Tem Birnie determined that if the parties did not sign an agreement based upon the settlement reached, the agreed terms would become an Order. Thereafter, counsel for Respondent prepared an agreement. Petitioner has refused to sign the agreement. Accordingly, the Orders appearing below are made. The order provided for child custody, visitation, and support; spousal support; identification, confirmation and division of separate and community property; and reimbursements.

On July 20, 2006, Wife appealed the judgment.[2]

Discussion

Wifes sole argument on appeal is that the judgment is void because Birnie did not qualify as a temporary judge and thus had no power to enter the judgment.

Article VI, section 21 of the California Constitution provides, On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause. It is undisputed that Birnie was a member of the State Bar. The constitution imposes three other requirements that are contested: (1) the parties litigant must stipulate to a temporary judge trying the cause; (2) the court must order the cause to be tried by a temporary judge; and (3) the temporary judge must be sworn.

Although Wife raised no objection in the trial court to the absence of these formalities, her claim of error is not forfeited because the constitutional requirements are jurisdictional in the fundamental sense of the term. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) If the constitutional requirements were not met, Birnie lacked the power to determine the case as a temporary judge. (Ibid.)

The constitutional requirements were not met because there is no evidence that Birnie was sworn to act as a temporary judge in this case. (See In re Marriage of Assemi (1994) 7 Cal.4th 896, 908 [holding retired judge lacked authority to act as a temporary judge because the record failed to reflect that he took an oath].) Wife has demonstrated that the trial court record includes no evidence that Birnie was sworn.

Husband asks us to take evidence on appeal showing Birnie took an oath of office on an unspecified date before he acted as temporary judge in this case. (Rule 8.252(c).) However, the proffered evidence would not demonstrate compliance with the constitutional requirement that a temporary judge be sworn . . . to act until final determination of the cause, which requires a temporary judge to be sworn in each cause or case in which he is appointed. (Cal. Const., art. VI,  21.) We previously denied Husbands motion.

Husband also argues that Wife should be estopped from challenging the judgment because she agreed that Birnie would act as a judge if settlement could not be reached and because she accepted the benefits of the judgment. Subject matter jurisdiction may not, however, be conferred by consent, waiver or estoppel. (Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 448.)

Because the constitutional prerequisites to authorizing Birnie to act as a temporary judge were not met, he had no power to enter a judgment determining the outstanding issues in the parties dissolution action. When, as here, there is an appeal from a void judgment, the reviewing courts jurisdiction is limited to reversing the trial courts void acts. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701.) The judgment is void. (Marlow v. Campbell (1992) 7 Cal.App.4th 921, 928.)

Disposition

The judgment is reversed. The case is remanded for further proceedings consistent with this opinion.

GEMELLO, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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[1] All rule references are to the California Rules of Court.

At the time of trial court proceedings, the subject matter of rule 2.831 was set forth in former rule 244 (effective until July 1, 2006) and former rule 243.31 (effective July 1, 2006).

[2] Husbands motion to augment the record is denied. The attached document is not identified as a document filed or lodged in the superior court nor is it a certified transcript or settled statement of oral proceedings as required by rule 8.155(a)(1).