Marriage of Himelfarb

Filed 5/27/10 Marriage of Himelfarb CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Amy M. Pellman, Judge. Affirmed.

Dirce Himelfarb, in pro. per., for Appellant.

Law Offices of Santiago Rodnunsky & Jones, Artemio M. Santiago, and Tamar S. Fong for Respondent.

_____________________________

If a party to a marital dissolution action dies prior to judgment, a court has authority to enter a judgment on submitted issues nunc pro tunc prior to the death of the party. (In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1167, 1176-1177.) Appellant Dirce Himelfarb appeals from an order of the family court amending a judgment of dissolution nunc pro tunc to the day before her ex-husbands death. We conclude that the court had jurisdiction to enter the order, and that Dirce has forfeited any challenge to the merits of the courts order by failing to raise any issue in the trial court. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Dirce and Jeff Himelfarb were married in August 2003.[1] Approximately six months later, in March 2004, they separated and Jeff petitioned for dissolution of the marriage. On July 8, 2005, Jeff petitioned for a restraining order, seeking protection from Dirce. Jeff died the following day. Dirce believed she and Jeff had reconciled prior to his death. Respondent Mildred Himelfarb is Jeffs mother and the guardian of his minor child (who is not Dirces child).

1. Jeffs Petition for Dissolution of Marriage

On March 18, 2004, Jeff petitioned to dissolve his marriage to Dirce. Dirce did not respond to the petition. Court records indicate that Jeff submitted a Judgment-Package on May 12, 2005, and Jeff filed a request to enter default on that date. The case summary sheet includes the following notation: 05/12/2005 Judgment-Package received-2336[.] The court issued a default judgment of dissolution on August 3, 2005, almost one month after Jeffs death.

2. Dirces Motion to Set Aside the Default Judgment for Dissolution of Marriage

On November 10, 2005, Dirce moved to set aside the judgment of dissolution. She argued that Jeff had not served her with his request to enter default, and that the default judgment should be set aside on grounds of mistake, inadvertence, surprise, or excusable neglect. The court initially denied the motion because Dirce had not provided notice to Jeffs estate. Subsequently, Dirce represented that she had been made the representative of the estate. On August 18, 2006, the court granted Dirces motion to set aside the default judgment.

3. Mildreds Motion to Reinstate the Judgment Nunc Pro Tunc Prior to Jeffs Death

On September 18, 2008, Mildred moved to set aside the order vacating the judgment of dissolution and to enter an amended judgment of dissolution nunc pro tunc as of July 8, 2005.[2]Dirce filed no opposition and did not appear at the hearing on Mildreds motion. Dirces former attorney appeared at the hearing and represented that Dirce had been served with the motion and knew the date of the hearing. In an order dated November 14, 2008, the court granted Mildreds motion. Dirce timely appealed from the order.

DISCUSSION

Dirces sole contention on appeal is that the court erred in entering judgment nunc pro tunc to a date prior to Jeffs death before he had filed an application for judgment on affidavit. Dirce relies on Family Code section 2346, subdivision (d),[3] which provides in pertinent part: The court shall not cause a judgment to be entered nunc pro tunc as provided in this section as of a date before trial in the matter, before the date of an uncontested judgment hearing in the matter, or before the date of submission to the court of an application for judgment on affidavit pursuant to Section 2336.[4] According to Dirce, as a result of the failure to comply with section 2346, subdivision (d), the trial courts November 2008 order is void.

1. Dirce Has Forfeited Any Challenge to the Merits of the Courts November 2008 Order

Dirce has forfeited her argument that the trial courts November 2008 order violated section 2346, subdivision (d). [I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. [Citation.] [Citations.] We will . . . ignore arguments, authority, and facts not presented and litigated in the trial court. [Citations.] Such arguments raised for the first time on appeal are generally deemed forfeited. [Citation.] (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592; see also McClain v. OctagonPlaza, LLC (2008) 159 Cal.App.4th 784, 805, fn. 9 [an argument raised for the first time on appeal is forfeited].)

In the trial court, Dirce filed no opposition to Mildreds motion to reinstate the dissolution judgment. Nor did she appear at the hearing, though she had notice of it.[5] She produced no evidence and raised no legal issue. Her assertion on appeal that Jeff did not file a declaration to proceed on affidavit is thus unsupported by any evidence.[6] By failing to raise any argument or produce any evidence in the trial court, Dirce forfeited her claim that the courts order of November 2008 violated section 2346, subdivision (d).[7]

2. The Trial Courts Order Is Not Void

In an apparent effort to avoid forfeiture, Dirce argues the trial courts November 2008 order is void. We disagree.

Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. (TrafficSchoolOnline, Inc. v. Superior Court (2001) 89 Cal.App.4th 222, 231; see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 42 [lack of subject matter jurisdiction is absence of power to hear a case].) As explained in Estate of Gardiner (1941) 45 Cal.App.2d 559, 562: Where a statute specifically inhibits an act, it is error for the court to do the thing prohibited. But, if the Constitution has conferred upon a court the power to deal with the subject matter and if jurisdiction over the parties has been acquired pursuant to the exercise of due process, its judgment is valid and it is conclusive, however erroneous, unless reversed on appeal. . . . A claim based on a lack of a fundamental jurisdiction may be raised for the first time on appeal. (People v. Williams (1999) 77 Cal.App.4th 436, 447.)

Here, even if the court erred in issuing the November 2008 order, the order is not void. Dirces challenge does not concern the power of the court to act, but only the application of section 2346, subdivision (d). (See Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950-951 [mistaken application of law distinguishable from power of court to act].) Section 2346 expressly authorizes entry of judgment nunc pro tunc. Compliance with the requirements of section 2346, subdivision (d), may be excused in certain circumstances. (In re Marriage of Tamraz (1994) 24 Cal.App.4th 1740, 1748 [upholding entry of judgment in absence of trial, hearing on uncontested judgment or application for judgment on affidavit, where husband agreed to submit papers for default].) Because the trial court had fundamental jurisdiction, its November 2008 order was not void.

DISPOSITION

The trial courts November 14, 2008 order is affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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[1] Because they have the same surname, we refer to the parties and to Jeff Himelfarb, by their first names.

[2] Mildred also successfully sought to substitute herself as personal representative of Jeffs estate, an issue not raised in the present appeal.

[3] Undesignated statutory citations are to the Family Code.

[4] Section 2336 provides: (a) No judgment of dissolution or of legal separation of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court shall, in addition to the statement or finding of the referee, require proof of the grounds alleged, and the proof, if not taken before the court, shall be by affidavit. In all cases where there are minor children of the parties, each affidavit or offer of proof shall include an estimate by the declarant or affiant of the monthly gross income of each party. If the declarant or affiant has no knowledge of the estimated monthly income of a party, the declarant or affiant shall state why he or she has no knowledge. In all cases where there is a community estate, each affidavit or offer of proof shall include an estimate of the value of the assets and the debts the declarant or affiant proposes to be distributed to each party, unless the declarant or affiant has filed, or concurrently files, a complete and accurate property declaration with the court.

(b) If the proof is by affidavit, the personal appearance of the affiant is required only when it appears to the court that any of the following circumstances exist:

(1) Reconciliation of the parties is reasonably possible.

(2) A proposed child custody order is not in the best interest of the child.

(3) A proposed child support order is less than a noncustodial parent is capable of paying.

(4) A personal appearance of a party or interested person would be in the best interests of justice.

(c) An affidavit submitted pursuant to this section shall contain a stipulation by the affiant that the affiant understands that proof will be by affidavit and that the affiant will not appear before the court unless so ordered by the court.

[5] The minute order issued after the hearing indicated that appellant had telephoned the court to report that she was ill and unable to attend. Appellants former counsel, who appeared at the hearing, confirmed that appellant was aware of the hearing. Respondents counsel represented at the hearing that appellants then current counsel also was aware of the hearing. There is no indication appellant or her counsel requested a continuance.

[6] Dirce attached to her opening brief the first page of a document entitled, declaration for default or uncontested dissolution. She neither requested judicial notice of the document nor sought to augment the record. Accordingly, we do not consider it. As noted above, the case summary sheet records the courts receipt on May 12, 2005 of a Judgment-Package . . . 2336. Section 2336 is the code section referenced by section 2346, subdivision (d).

[7] Because we conclude Dirces arguments are forfeited, we need not consider respondents remaining contentions as to why the trial courts order should be upheld.