Marriage of Nelson
Filed 9/18/07 Marriage of Nelson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re the Marriage of BRENDA and CHARLES NELSON. | |
BRENDA NELSON, Respondent, v. CHARLES NELSON, Appellant. | F050752 (Super. Ct. No. FL551005) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Ralph McKnight, Jr., Commissioner.
Charles Nelson, in pro. per., for Appellant.
No appearance for Respondent.
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This is the second of two appeals filed by Charles Nelson (appellant) in this dissolution of marriage matter. In both appeals, appellant has challenged the denial of his motions to set aside an order or judgment previously entered in the dissolution proceeding. In the first appeal, appellant alleged that the order or judgment was procured by fraud. Appellant claimed that findings that he owed support payments and certain property taxes were wrong because of fraud and, as a result, he was cheated on the division of proceeds from the sale of a family residence. Appellant discussed orders entered in 1996 and 1997, and specifically alleged that the fraud occurred at a hearing in March 1997. He also alleged that a court commissioner had colluded in the fraud by destroying information and proposed exhibits he mailed to her, at her direction, to support his allegation that the court had been given false information. We affirmed the trial courts denial of appellants motion to set aside on two grounds. First, appellant had failed to challenge the order allegedly procured by fraud within the time allowedone yearby Family Code section 2122. Second, if the appeal was construed as a direct challenge to the underlying order or judgment, which was entered in 1997, then the appeal was untimely.
The first appeal was complicated by the fact that the trial courts file did not include certain documents upon which appellant relied, including those documents that he sent to the court commissioner at her request. Appellant made a motion to augment the record on appeal to include: (1) documents filed in the superior court; (2) correspondence between the parties and with the court; and (3) copies of accountings, appellants check stubs, and checks drawn on the trust account of the attorney who represented Brenda Nelson (respondent) in the dissolution proceedings.[1] We granted appellants motion to augment. He now complains that we erred when [we] gave credibility to the Appellate documents, just so [we] could implement Time Limitation against the Appellant.
The present appeal is from the trial courts denial of appellants MOTION FOR RELIEF FROM JUDGMENT, OR ORDER VOID ON ITS FACE.[2] The bases on which appellant contends the judgment or order is void on its face are: first, the judgment or order is void because it cannot be located in the trial courts record of proceedings; second, a July judgment of 1997 is without proof of service, and that makes this judgment VOID; third, Rule 60 (b)(4) authorizes relief from void judgments; and fourth, there is no time limit on an attack on a judgment as void.
Appellants contention that the judgment or orders are void because they cannot be located in the court file includes the assertion that there was an ex parte hearing in the trial court on December 2, 1996, and an order was never entered into court records or signed by a Judge. Also, there was a hearing on March 17, 1997, at which the attorney for Brenda Nelson gave false testimony. According to appellant, [t]hese judgments and other pieces of document have been remove from the court records and that is a Federal violation a felony. The record in both the present and the first appeal[3]support the proposition that documents are missing from the trial courts file. The trial court, in the hearing conducted on appellants assertions below, noted that THE ORDER BEING REQUESTED TO BE SET ASIDE IS MISSING FROM FILE. [NINE] OTHER DOCUMENTS DURING THE TIME FRAME OF 03/15/1995 THROUGH 08/18/1997 ARE MISSING FROM FILE. Implicit in the trial courts rejection of appellants assertion that the judgment and orders to which these missing documents relate are void is the trial courts rejection of appellants assertion that the documents were feloniously or fraudulently removed from the file. (See In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274 [doctrine of implied findings on appeal].) Appellant cites no authority that would support the proposition that, when documents go missing from a court file, the orders and judgments to which they relate automatically become void. We note, in this regard, that appellant also does not contend that he is being forced to comply with any orders or judgments that were not in fact rendered in this matter.
Neither does appellant contend that he has been denied timely knowledge of the existence of any order or judgment. He only asserts that both the trial court and the attorney for respondent somehow erred when they sent documents to appellants attorney, after she withdrew from representing him and a formal substitution of attorney form had been filed. This assertion is supported by the augmented record in the first appeal, which includes a letter dated March 3, 1997, from the attorney for respondent to appellant, and which states:
This letter is being sent to you care of your former attorney because when you signed the Substitution of Attorneys you did not put your current address on the form. We have no way of contacting you except through your attorney. Please contact us immediately and give us your address for future correspondence.
The same augmented record also shows that appellant did, in fact, receive the notice he now asserts was not provided properly. That augmented record includes a letter dated August 13, 1997, from appellant to the trial court (Commissioner Goldner):
First of all, I would very much like to say Thank You for notifying me of the courts decision. You sent the decision to my former Attorney and she did file a SUBSTITUTION OF ATTORNEY and proof of service. You still sent the decision to her. I,m in Proi Per. Thank You. I would ask that you reconsider your decision.
We reject the contention that appellant has shown improper service of notice, including any suggestion that he did not receive notice, and the accompanying contention that the trial court somehow lacked jurisdiction over him or this cause.
The trial courts denial of appellants motion to set aside is affirmed. Any costs on appeal are awarded to respondent Brenda Nelson.
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*Before Wiseman, Acting P.J., Dawson, J. and Kane, J.
[1]Brenda Nelson continued to be represented by counsel in the first appeal. In proceedings leading to the current appeal, she was represented by the Kern County Department of Child Support Services (DCSS). DCSS has filed with this court a notice that it will not be participating in the appeal, because the appeal involves no issue relating to child support. Mrs. Nelson also has filed no brief.
In the proceedings below, Mrs. Nelson filed a request that appellant be declared a vexatious litigant. The request was denied, and she has not appealed from that denial.
[2]Appellant did not designate as part of the appellate record the document he filed to make this motion. The superior court clerks docket, which is a part of the appellate record, indicates the motion was made by way of a request for an order to show cause, filed by appellant on February 24, 2006.
[3]We take judicial notice of the contents of the record in the first appeal, In re Marriage of Nelson (July 25, 2005, F046576 [nonpub. opn.]). (Evid. Code, 452, 459.)
