Fernandes v. Purganan (In re Purganan)

• Court: California Court of Appeals
• Writing for the Court: O'ROURKE, J.
• Decision Date: 03 March 2017
• Docket Number: D070469
• Citation: Fernandes v. Purganan (In re Marriage of Purganan), D070469 (Cal. App. Mar 03, 2017)
• Parties: In re the Marriage of YVONNE and PHILEMON PURGANAN. YVONNE FERNANDES, Respondent, v. PHILEMON PURGANAN, Appellant.

In re the Marriage of YVONNE and PHILEMON PURGANAN.

YVONNE FERNANDES, Respondent, v. PHILEMON PURGANAN, Appellant.

D070469

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

March 3, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. D490364)

APPEAL from an order of the Superior Court of San Diego County, Paula S. Rosenstein, Judge. Reversed and remanded with directions.

Yvonne Fernandes, in pro per., for Respondent.

Victor Augustus Mordey for Appellant.

Appellant Philemon Purganan appeals an order denying his request to vacate an October 2005 family court order that he pay respondent Yvonne Fernandes $1,000 a month in spousal support. Purganan contends the court erred by denying his request because the October 2005 order modified a 2001 Hawaii court's spousal support order in violation of the Uniform Interstate Family Support Act (the UIFSA; Fam. Code,¹ § 5700.101 et seq.), the family court lacked subject matter jurisdiction to make the order, and as a result the October 2005 order is void ab initio. We agree that under the UIFSA, the Hawaii court had exclusive continuing jurisdiction over the matter of spousal support and that the UIFSA precluded the San Diego Superior Court's modification of the Hawaii order. Because the court erred by denying Purganan's motion to vacate the October 2005 order, we reverse with directions set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2001, a Hawaii court granted Fernandes and Purganan a decree of divorce of their approximately 24-year marriage. The Hawaii court ordered in part that "[n]either party shall be required to pay alimony to the other party," but provided the parties had "agree[d] to a mutuable [sic] agreeable arrangement at a future time providing for spousal support payments if either's annual income falls to a substantially lower level than the other's." It further awards Fernandes 50 percent of Purganan's Coast Guard retirement pay accrued through the date of their divorce.

In May 2005, Fernandes registered the Hawaii court's August 2001 decree in the family law branch of the San Diego Superior Court. At the same time, she filed an order to show cause (OSC) for a modification of the Hawaii court's spousal support order. In a supporting declaration, Fernandes pointed to the parties' prior agreement as to spousal support and stated she had received support payments of $500 for approximately twoyears, which ended when Purganan "decided [she] no longer deserved them." She asserted she was unemployed and not able to support herself, and was making substantially lower wages than Purganan.

On October 4, 2005, the family court, Judge Randa Trapp, conducted a hearing on the matter. Only Fernandes appeared. Under oath, Fernandes explained that she and Purganan had agreed to handle their divorce without attorneys, and further agreed that if either of their incomes became substantially lower than the others, that "we would help each other out." She stated she was presently making $1,600 monthly on disability and that Purganan had previously given her $500 in monthly spousal support but terminated it when she obtained employment. According to Fernandes, Purganan was on active military duty making about $8,000 per month and was refusing to pay her any spousal support. During the hearing, the court expressed concern that the Hawaii court had not reserved jurisdiction over the issue of alimony or support. Fernandes responded by pointing to the portion of the Hawaii decree stating the parties' mutual agreement concerning spousal support. Finding the parties had a long-term marriage, that Fernandes's annual income was substantially lower than Purganan's, Fernandes had need, and Purganan had the ability to pay, Judge Trapp ordered Purganan to pay Fernandes $1,000 per month in spousal support beginning October 1, 2005. It entered its written order on October 6, 2005.

In December 2015, Purganan sought an order vacating the October 6, 2005 order on grounds Judge Trapp lacked subject matter jurisdiction to enter it under the UIFSA. He argued the modification order violated the UIFSA, was "illegal," and should bevacated. Fernandes responded that through her petition, she had asked the San Diego Family Court to "take away jurisdiction over the issue of spousal support from the state of Hawaii," and the court exercised its discretion to grant her request to make a spousal support order. She argued Hawaii no longer had continuing, exclusive jurisdiction over spousal support, requiring that Purganan's request be denied.

The family court, Judge Paula S. Rosenstein, heard Purganan's request in March 2016. The court observed that the question was strictly legal: whether the California superior court had the authority to enter the October 6, 2005 order. The court stated it had looked to sections 4914 and 4925 in effect in 2005, and ruled: "In these sections a party seeking to modify a support order of another state shall file a petition. And so you need to go through a particular process. Ms. Fernandes filed the notice of registration of the Hawaii support order, which was served on Mr. Purganan by the court. He filed no opposition. The registration was therefore confirmed by operation of law. Ms. Fernandes then properly filed and personally served her summons and uniform support petition and her OSC to modify spousal support on the respondent at his address in San Diego. Husband cited no authority or provided any facts to support his contention that Hawaii still had continuing exclusive jurisdiction, nor would there be any basis for the continuing exclusive jurisdiction, since both parties lived in California in 2005. Husband did not file a motion to quash for lack of jurisdiction, he did not respond to the petition, he did not appear, spousal support modification was properly ordered. The motion to vacate the prior order is denied."

Purganan objected to the court's statement of decision on grounds he had no obligation to respond to Fernandes's 2005 pleadings, which under the UIFSA were "intrinsically devoid of [the] ability" to modify the spousal support order. He also objected on grounds subject matter jurisdiction could not be created by consent, waiver or estoppel.

On April 12, 2016, the court entered its findings and order after hearing. The court overruled Purganan's objections, denied Purganan's request to vacate the October 2005 order, and ordered that its tentative statement of decision as reflected in the transcript of the hearing be the final statement of decision.

Purganan filed the present appeal.²

DISCUSSION

I. Standard of Review

Whether the family court had subject matter jurisdiction to make its October 2005 order that Purganan pay spousal support is a question of law we review de novo. (See San Diegans for Open Government v. City of San Diego (2015) 242 Cal.App.4th 416, 427; Lundahl v. Telford (2004) 116 Cal.App.4th 305, 312.) To the extent the familycourt interpreted law in reaching its decision to deny Purganan's motion to vacate the October 2005 order, we likewise review that interpretation de novo. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189; In re Marriage of Gerkin (2008) 161 Cal.App.4th 604, 610.)

II. The UIFSA

The UIFSA, now codified in California at section 5700.101 et seq.,³ governs the modification of spousal support awards. (See § 5700.211, formerly § 4914.) It has been adopted in all 50 states. (In re Marriage of Haugh (2014) 225 Cal.App.4th 963, 968.) The UIFSA ensures that in every case only one state exercises jurisdiction over support at any given time. (Ibid.) "The 'cornerstone' of the UIFSA is the concept of 'continuing, exclusive jurisdiction,' . . . ." (Id. at p. 969; see also In re Marriage of Gerkin, supra, 161 Cal.App.4th at p. 612.)

When the family court issued the October 6, 2005 order, former section 4909 stated: "A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing, exclusivejurisdiction over that order under the law of that state." (Former § 4909, subd. (f).)⁴ The effect of these provisions is that the California superior court, as a "tribunal of this state" (former § 4902 ["The superior court is the tribunal of this state"], now § 5700.103, subd. (a)), was precluded by statute from modifying the Hawaii spousal support order if Hawaii, under its law, has continuing, exclusive jurisdiction over the order. (In re Marriage of Rassier (2002) 96 Cal.App.4th 1431, 1434; see Lundahl v. Telford, supra, 116 Cal.App.4th at p. 317 [UIFSA "permits modification of a spousal support order only by the court issuing the order"].)

In 1997, Hawaii adopted the UIFSA, which is presently codified at Hawaii Revised Statutes (HRS) § 576B-101 et seq. (See Underwood v. Colley (Hawaii Ct.App. 2006) 137 P.3d 365, 368, 369.) At the time the Hawaii court entered its 2001 divorce decree and in 2005, HRS section 576B-205, entitled continuing, exclusive jurisdiction, provided in part: "A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation." (Former HRS § 576B-205, subd. (f), italics added.) That provision presently appears without change at HRS § 576B-211, subdivision (a), entitled "Continuing, exclusive jurisdiction to modify spousal support order." Under Hawaii's provisions, "the tribunal issuing a...