Worden v. Aggazzotti
Filed 8/7/13 Worden v. Aggazzotti CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
DEREK
WORDEN,
Appellant,
v.
STEPHANIE
AGGAZZOTTI,
Respondent.
E056456
(Super.Ct.No. RDARS040631)
OPINION
APPEAL from an order of the Superior
Court
of
San
Bernardino County. John
A. Crawley, Temporary Judge. (Pursuant
to Cal.
Const., art. VI, § 21.) Affirmed.
William K. Vogeler, Gruenbeck & Vogeler, for
Appellant Derek Worden.
Christopher R. Abernathy, Christopher R.
Abernathy APC for Respondent Stephanie Aggazzotti.
This is an appeal from a post judgment order in
family law proceedings.
name="_ftnref1" title="">[1] In the course of child support
denied an order to show cause without prejudice on grounds that Derek Worden
failed to comply with court orders.
Worden appeals, arguing that he was not properly served with the orders.
Facts and procedural history
On May
4, 2009, Worden filed a pro per motion for an
Order to Show Cause for modification of child support, together with an income
and expense declaration. The matter was
set for hearing on June
8, 2009.
After numerous delays for various reasons,
including disposition of other matters, a hearing was held on August 11, 2011. Worden was present without counsel. At the conclusion of the hearing, the parties
were ordered to “file and serve supplemental declarations two weeks prior to
the next Court
date. Parties are further ordered to
file and serve two weeks prior to the next
Court date updated, accurate and
complete income and expense declarations.â€
On October 6, 2011, another hearing was
held but neither party appeared. The
minute order states that the hearing was continued because Worden had retained
counsel and discovery was pending. The
order concludes: “As ordered at the hearing of 8/11/11
parties are ordered to file and serve two weeks prior to the next
Court date updated, accurate and
complete income and expense declarations.
Failure to comply with this order will result in there being no
hearing.†The order also provided:
“Notice to be given by DCSS.†Proof of
service by mail on Worden was filed on October 24, 2011.
The next hearing was held on January 3, 2012. Neither Worden nor his new attorney, William
Vogeler, was present. “The court orders
parties to file and serve two weeks prior to the next hearing updated, accurate
and complete Income and Expense declarations.
Attorney Vogeler is to file a substitution of attorney.†In addition, the order after hearing, adds a
handwritten order “If the moving party fails to comply with the order as
occurred 8/11 and 10/11, then this request to modify shall be denied.†Counsel for respondent was ordered to give
notice. However, the proof of service
only shows service on attorney Vogeler.
The hearing was continued until March 20, 2012.
On March 20, 2012, Worden and his
attorney, Vogeler, were present. The
commissioner pointed out that an income and expense declaration still had not
been filed. Attorney Vogeler argued that
Worden, who was neither present nor represented at the January 3, 2012
hearing, had not had the order made at that hearing served on him. Nevertheless, based on the failure to comply
with the three prior orders, the commissioner denied Worden’s requested
modification order without prejudice to refile.
Compliance with family code section 215
Worden first argues that: “The orders that were
the basis of the commissioner’s ruling on March 20, 2012, were not clear and
not served on Worden as required by Family Code section 215(a).[
Section 215, subdivision (a) states: “(a) Except as provided in
subdivision (b), after entry of a judgment of dissolution of marriage, nullity
of marriage, legal separation of the parties, or paternity, or after a
permanent order in any other proceeding in which there was at issue the
visitation, custody, or support of a child, no modification of the judgment or
order, and no subsequent order in the proceedings, is valid unless any prior
notice otherwise required to be given to a party to the proceeding is served,
in the same manner as the notice is otherwise permitted by law to be served,
upon the party. For the purposes of this section, service upon the attorney of
record is not sufficient.â€
Worden contends that the section requires that
orders in modification proceedings be served on the party. Service on the attorney of record is not
sufficient. Since there was no proof of
such service for the October
6, 2011 and January 3, 2012 hearings, Worden
contends that the March
20, 2012 order was invalid.
Respondent Aggazzotti argues that section 215 is
irrelevant because it only applies to service of the initial post-judgment
pleading. She cites In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033. In that case, decided under former Civil Code
section 4809, the court set aside an order terminating spousal support because
the notice of motion to terminate child support was not served on the former
wife. (Kreiss at p. 1034.)
Respondent here argues that Worden filed the
post judgment request to modify child support, and section 215 is therefore
inapplicable.
We disagree.
Section 215 is not limited to the initial post judgment pleading. It clearly applies to subsequent orders in
the modification proceedings: “[N]o modification of the judgment or order, and
is valid unless . . . .â€
(§ 215, subd. (a), italics added.)
We therefore find section 215 applicable in this case.
Accordingly, the orders of October 11, 2011,
and January 3, 2012,
were not valid because they were not served on Worden.
However, Worden was fully aware of the need to
file an income and expense statement because he initially filed one with his
modification request on January
31, 2003. He
also filed an income and expense statement on May 4, 2009. Worden was obviously aware of the requirement
that an income and expense declaration be filed, and, equally obviously, that a
current declaration would be needed in order to obtain a modification.
More importantly, Worden was present at the August 11, 2011
hearing in which he was ordered to file an updated declaration within two
weeks. Thus, even though the two
subsequent orders were invalid for lack of proper service, Worden knew that he
had been ordered to file a current income and expense declaration the previous
August.
When Worden appeared at the March 20, 2012
hearing, he was reminded of his delinquency and the commissioner denied the
modification motion accordingly. The
commissioner clearly did not abuse his discretion in denying the motion which
had been pending for three years.
Respondent also argues that, despite the
contrary language in the statute, service upon attorney Vogeler was sufficient
compliance with the statute. She cites
Cal.App.2d 902. That case states: “When,
however, the [former] attorney of record is directly contacted and he
represents by words or action that he is still the attorney of record, the
intent of the amended statute has been complied with.†(Id.
at pp. 906-907.)
Respondent attempts to come within the
Vogeler made it clear that he was the attorney of record for Worden. To support the argument, respondent filed a
motion to augment the record on appeal with documents consisting primarily of
e-mails between the attorneys.
By order filed January 25, 2013, we denied the
motion “without prejudice to resubmitting the motion and establishing that the
documents attached to the motion were filed or lodged in the case in the
superior court.†No resubmission was
made and the denial of the motion stands.
Accordingly, we have not considered the proposed documents and, without
them, there is no support for respondent’s argument.
Compliance with section 217
Section 217 provides: “(a) At a hearing on any order to show cause or notice of motion
brought pursuant to this code, absent a stipulation of the parties or a finding
of good cause pursuant to subdivision (b), the court shall receive any live,
competent testimony that is relevant and within the scope of the hearing and
the court may ask questions of the parties.
[¶] (b) In appropriate cases, a court may make a
finding of good cause to refuse to receive live testimony and shall state its
reasons for the finding on the record or in writing. The Judicial Council shall, by January 1,
2012, adopt a statewide rule of court regarding the factors a court shall
consider in making a finding of good cause.â€
Worden argues that the commissioner erred by
refusing to allow him to testify at the March 20, 2012 hearing. However, any such testimony would have been
ineffective and irrelevant without a current income and expense declaration
being on file. His attorney appeared
with him and argued on his behalf. We
find no due process violation.
The commissioner did not make a finding of good
cause to receive Worden’s live testimony and did not state his reasons for the
decision. Nevertheless, the reasons are
fairly obvious and Worden was clearly not prejudiced by being denied the right
to testify in view of his continuing violation of the August 11, 2011 order.
After three years of litigation over Worden’s
May 4, 2009 request to modify child support, the trial court did not abuse its
discretion in denying the motion.
Disposition
The order denying Worden’s motion to modify
child support is affirmed. Respondent to
recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
name="_ftn1" title=""> [1] The
order is appealable under Code of Civil Procedure section 904.1, subdivisions
(a)(1),(2), and (10).
name="_ftn2" title=""> [2] The Register of Actions for October 26th
states: “Proof of service of NRPS by mail service on 10/26/11 as to Derek P.
Worden, filed.â€
