County of Ventura v. Tillett

• Decision Date: 28 June 1982
• Citation: 183 Cal.Rptr. 741,133 Cal.App.3d 105
• Parties: COUNTY OF VENTURA, Plaintiff and Respondent, v. Joyce TILLETT, Defendant and Appellant. Civ. 63044.
• Court: California Court of Appeals Court of Appeals

Page 741

183 Cal.Rptr. 741

133 Cal.App.3d 105

COUNTY OF VENTURA, Plaintiff and Respondent, v. Joyce TILLETT, Defendant and Appellant.

Civ. 63044.

Court of Appeal, Second District, Division 4, California.

June 28, 1982.

Hearing Denied Sept. 22, 1982.

Barbara Jean Penny Encino, for defendant and appellant.

George Deukemjian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Deputy Attys. Gen., and Michael D. Bradbury, Dist. Atty., and Robert J. Bayer, Deputy Dist. Atty., for plaintiff and respondent.

KINGSLEY, Acting Presiding Justice.

Defendant appeals from an order of the superior court denying defendant's motion to set aside and vacate the judgment. We reverse the order and remand the case with directions.

Summary of Facts

On December 4, 1978, the County of Ventura filed a complaint in the Ventura County Superior Court against defendant, Joyce Tillett, and on January 12, 1978, served defendant with a copy of the summons and complaint. The complaint sought reimbursement of welfare funds which the county had provided in support of defendant's two minor children and requested an order that defendant continue to make monthly child support payments to the county.

In response to the complaint, on January 18, 1979, defendant went to the office of the Ventura County District Attorney. At that time, defendant explained that she had doubts about her responsibility for reimbursing the county because there was a pending order in the County of Los Angeles for her husband to pay child support. She also explained that she was unemployed and could not afford to make any payments. After this discussion, defendant signed a "Judgment for Child Support and Reimbursement of Welfare Funds by Stipulation." Defendant says that she signed this document because she was afraid that, if she did not sign, she would go to jail and lose her insurance license which she had recently obtained.

The stipulated judgment, filed January 26, 1979, called for defendant to pay $1,148 to the county in monthly installments of $5 as reimbursement for the money which the county had provided in support of defendant's children. Further, the judgment required that defendant continue to pay $100 per month for child support (i.e., $50 per month per child). The defendant did not have the assistance of counsel in negotiating any of the terms of the agreement for stipulated judgment, nor did the agreement itself contain language indicating that defendant had waived any offer by the county to provide counsel.

On August 27, 1979, the county filed an Order to Show Cause Re Contempt against the defendant for nonpayment of child support. On October 12, 1979, defendant appeared before the superior court in propria persona and entered a plea of guilty to four counts of contempt. She was found guilty by the court and was placed on summary probation for a period of twelve months on the condition that she pay the child support as originally ordered by the court and that she also pay $25 per month toward the arrears on the $1,148 on judgment. The minutes of the proceedings indicate that defendant was advised of the nature of the proceedings and of her right to a trial and representation of counsel, and that defendant waived those rights.

On August 6, 1980, the county filed a Declaration Re Probation Violation against the defendant for noncompliance with the terms of probation (i.e., nonpayment of child support and the arrears). On October 31, 1980, defendant, now represented by counsel, ¹ filed a motion to set aside and vacate the original stipulated judgment on the ground that the judgment was unconstitutional in that defendant did not have representation of counsel in entering into the stipulation. Defendant also claimed that the judgment had been obtained through extrinsic fraud, mistake or accident which prevented defendant from presenting a meritorious defense. The court denied the motion and defendant appeals.

I

We begin by examining the appealability of the superior court's order denying defendant's motion to set aside the judgment of January 26, 1979. Although this issue has not been raised by the parties, the question is jurisdictional, and we must dismiss the appeal on our own motion if the order is not appealable. (Redevelopment Agency v. Goodman (1975) 53 Cal.App.3d 424, 429, 125 Cal.Rptr. 818.) We decide this issue according to the rule that no judgment or order is appealable unless expressly so declared, i.e., unless it comes within one of the classes enumerated in the main statutes or is made appealable by a specific statute. (See 6 Witkin, Cal. Procedure (2d ed. 1971), p. 4045; see also Jasper Construction, Inc. v. University Casework Systems, Inc. (1974) 39 Cal.App.3d 582, 585, 114 Cal.Rptr. 143.)

The appeal is from an order denying defendant's motion to vacate a stipulated judgment. Generally, an order denying a motion to vacate a judgment is not appealable, since such an appeal would be the equivalent of allowing two appeals from the same judgment. (See generally, 4 Cal.Jur.3d, Appellate Review, § 51 at p. 88.) However, the motion was based on the contention that the judgment is constitutionally invalid. Since a court of this state does not have jurisdiction to render a judgment that violates the California Constitution or the Constitution of the United States, the defendant's argument is, essentially, that the superior court's judgment was in excess of jurisdiction. (Code Civ.Proc., § 410.10; Yoakum v. Small Claims Court (1975) 53 Cal.App.3d 398, 401-402, 125 Cal.Rptr. 802; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287-291, 109 P.2d 942.) A judgment is void on its face if the court which rendered the judgment lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493, 165 Cal.Rptr. 825, 612 P.2d 915; Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840-848, 131 Cal.Rptr. 674.) If the judgment is void, it is subject to collateral attack. (Craft v. Craft (1957) 49 Cal.2d 189, 192, 316 P.2d 345.) One method of such an attack is a subsequent motion to vacate or set aside the judgment as void. (Code Civ.Proc., § 473.) The motion may be filed at any time after judgment. (Security Pac. Nat. Bank v. Lyon (1980) 105 Cal.App.3d Supp. 8, 13, 165 Cal.Rptr. 95, citing Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851, 271 P.2d 18; see also Craft v. Craft, supra, 49 Cal.2d at p. 192, 316 P.2d 345.) The order denying or granting the motion is a special order made after entry of judgment, and it may be directly attacked on appeal under Code of Civil Procedure section 904.1(b). (Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 282, 153 P.2d 714; see also Eveleth v. American Brass & Iron Foundry (1962) 203 Cal.App.2d 41, 44, 21 Cal.Rptr. 95.) The reason for allowing the appeal is that an order giving effect to a void judgment is also void and is subject to attack. (Security Pac. Nat. Bank v. Lyon, supra, 105 Cal.App.3d at 13, 165 Cal.Rptr. 95.) Thus, when an appellant attacks an order on the ground that it gives effect to a judgment that is void for lack of jurisdiction by the trial court, the general rule prohibiting appeal does not apply. It is a special order, and it may be appealed if the underlying judgment was appealable. (Code Civ.Pro., § 904.1(b).) It is necessary therefore, to determine whether the stipulated judgment was appealable.

I

A judgment is not appealable unless it is final in the sense that it decides the rights and duties of the parties and terminates the litigation. (Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 15 Cal.Rptr. 177.) Here, the underlying judgment was entered pursuant to stipulation. Under the terms of the stipulation, the defendant had the continuing right to seek a modification of the amount of child support depending upon a change in any relevant circumstances. When a court has the power to modify orders for the support of children in light of the circumstances existing at the time the application is made, an order for child support payments pursuant to such power is not usually considered a final judgment in the sense of it being a final adjudication of the rights and duties of the parent and minor child. (Rosher v. Superior Court (1937) 9 Cal.2d 556, 559, 71 P.2d 918.) However, if the temporary order directs payment of money or performance of an act, the order is substantially the same as a final judgment in an independent proceeding, and a direct appeal may be taken. This constitutes a necessary exception to the one final judgment rule. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368, 134 Cal.Rptr. 197, 556 P.2d 297, and cases cited therein.) We conclude that the present appeal is permissible under Code of Civil Procedure section 904.1(b) as an appeal from an order made after an appealable judgment. We therefore reach the merits of defendant's claims.

III

Defendant claims that the order denying her motion to vacate the judgment should be reversed for three reasons:

1. Defendant argues that the stipulated judgment is constitutionally invalid because she did not voluntarily, knowingly and intelligently enter the stipulation due to the failure of the county to provide her with assistance of counsel.

2. Defendant argues that the judgment should be vacated because the county fraudulently, mistakenly or accidentally prevented her from obtaining a fair adversary trial by giving her erroneous advice as to her possible defenses.

3. Defendant argues that the trial court erred in its decision of child support in that defendant did not have the ability to make support payments at the time she entered the stipulated judgment.

The first and second of defendant's arguments essentially make the same point, namely, that the judgment...