In re Marriage of Jackson

• Decision Date: 15 February 2006
• Docket Number: No. B180135.,B180135.
• Citation: 136 Cal.App.4th 980,39 Cal.Rptr.3d 365
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF Deborah and Michael J. JACKSON. Deborah Rowe Jackson, Respondent, v. Michael J. Jackson, Appellant.

39 Cal.Rptr.3d 365

136 Cal.App.4th 980

In re MARRIAGE OF Deborah and Michael J. JACKSON.

Deborah Rowe Jackson, Respondent, v. Michael J. Jackson, Appellant.

No. B180135.

Court of Appeal, Second District, Division 7.

February 15, 2006.

Law Offices of Michael L. Abrams and Thomas Montague Hall, Las Angeles, for Appellant.

Browne Woods & George and Eric M. George, Beverly Hills; Iris Joan Finsilver, Palm Desert, for Respondent.

PERLUSS, P.J.

The trial court in October 2001 granted the motion of Deborah Rowe Jackson to terminate her own parental rights to her two children, Michael Joseph Jackson, Jr., and Paris Michael Katherine Jackson, giving sole responsibility for the two children to their father, Michael J. Jackson. In April 2004 the trial court declared the October 2001 termination order void and in October 2004 denied Michael's¹ motion to vacate that part of the April 2004 order declaring the earlier termination of parental rights void. Michael appeals, contending the trial court properly terminated Deborah's parental rights in 2001. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Termination of Deborah's Parental Rights

In October 1999 Deborah and Michael, married at the time, entered into a stipulation for judgment providing Michael would have sole legal and physical custody of their two children, Michael, Jr., and Paris; Deborah was granted visitation rights. Deborah and Michael's marriage was dissolved in April 2000. Approximately six months later Deborah decided to stop visiting the children because, according to her, the visitation "was not working out for various reasons." Deborah agreed to a modification of the earlier child custody judgment, relinquishing her visitation rights.

In October 2001 Deborah filed a motion to terminate her parental rights. Deborah's declaration in support of her motion stated, "MICHAEL has been a wonderful father to the children and I do not wish to share parenting responsibilities with MICHAEL because he is doing so well without me. [¶] ... I want to forever give up any and all rights pertaining to the children because I believe that by doing so, it is in the children's best interests." Deborah also stated she fully understood the implications of relinquishing her parental rights.

At the hearing on Deborah's motion, which Michael did not attend, Michael's counsel stated Michael did not oppose Deborah's motion and counsel was there "to facilitate a record that will allow the motion to be not only granted but enforceable."² Deborah was examined under oath by her counsel, as well as by Michael's counsel, to ensure she in fact wanted her parental rights terminated and fully understood the consequences of her action.³ The court granted Deborah's motion, finding that, "[Deborah] has left the minor children in [Michael's] exclusive custody for a period in excess of one year. During such period, [Deborah] has not communicated with the children. [Deborah] believes that it is in the best interest of the minor children that her parental rights be terminated.... [¶] ... Based on [Deborah's] belief that it is in the best interest of the minor children that they remain in [Michael's] exclusive custody without contact by [Deborah], the Court finds that there is clear and convincing evidence to terminate [Deborah's] parental rights pursuant to Family Code § 7822(b)."

2. Deborah's Ex Parte Application for an Order to Show Cause for Modification of, Among Other Things, Child Custody and Child Support

More than two years after Deborah's motion to terminate her parental rights had been granted, she filed an ex parte application for an order to show cause seeking, among other things, temporary exclusive custody of the children pending completion of a psychiatric evaluation to assist in determining what permanent custody would be in the best interest of the children. The application stated Deborah now sought temporary custody because of concerns arising from Michael's criminal prosecution and press reports Michael had associated with the Nation of Islam, whose members Deborah believed do "not like Jews." Because she is Jewish, Deborah feared the children might be mistreated if Michael continued his association with the Nation of Islam. Michael opposed Deborah's ex parte application in part on the ground Deborah lacked standing to request the court make any orders regarding the children because the court had previously terminated her parental rights.⁴

After several rounds of extensive briefing on a myriad of legal theories and following oral argument, the court on April 2, 2004 granted in part and denied in part Deborah's ex parte application. The court found its earlier order terminating Deborah's parental rights (the termination order) void because it had failed to order an investigation or consider appointment of counsel for the children, as required by Family Code sections 7850 and 7861. However, the court found there was no basis at that time to permit Deborah visitation or contact with the children. The court also ruled Deborah's request for psychiatric evaluation was not an emergency warranting ex parte relief but could be renewed through a properly noticed motion.

3. Michael's Motion to Vacate the Portion of the Court's Order Declaring the Termination Order Void

On September 16, 2004, after retaining new counsel, Michael moved to vacate that portion of the court's April 2, 2004 order declaring the termination order void on the ground the order was final and could not be directly or collaterally attacked. In response Deborah argued a void order could be collaterally attacked at any time. Relying on In re Goodarzirad (1986) 185 Cal.App.3d 1020, 1026, 230 Cal.Rptr. 203 (Goodarzirad) ("stipulations between parents involving the minor children which attempt to divest the court of jurisdiction are void"), Deborah asserted for the first time the termination order was void because it had been impermissibly based on Michael's and her stipulation to terminate her parental rights.

The court denied Michael's motion to vacate, finding that, even though Michael had not stipulated in writing to the termination of Deborah's parental rights, the termination proceeding "was the functional equivalent of a stipulated proceeding/stipulated agreement between the parties" and as such void under Goodarzirad. Notwithstanding its own statement in October 2001 that termination was in the best interest of the children, the court found in fact no best-interest inquiry had been made by the court at that time. The court explained, "Not a single thing was done to enlighten the trier of fact as to the best interests of the children. The children's interests were not brought forth through any of the means that our codes provide. And [Goodarzirad] stands for the proposition that parties cannot by themselves stipulate to termination of parental rights. If there ever was a case where the parties stipulated to the termination of parent rights and nothing further was done, this was such a case."

CONTENTIONS

Michael contends (1) he did not stipulate to the termination of Deborah's parental rights and the termination order is therefore not void or otherwise subject to collateral attack; and (2) the failure of the court to follow proper procedures in conducting the inquiry into termination was invited error and, in any event, harmless.⁵

DISCUSSION

1. The Trial Court Had Jurisdiction to Decide Deborah's Collateral Attack on the October 2001 Judgment Terminating Her Parental Rights

Deborah contends, because the trial court acted in excess of its jurisdiction in entering the October 2001 termination order, that order is void and properly subject to collateral attack. Although collateral attacks on judgments are disfavored (see, e.g., Robert J. v. Leslie M. (1997) 51 Cal.App.4th 1642, 1647-1648, 59 Cal. Rptr.2d 905), in some cases, if the court has awarded relief to one of the parties the law declares cannot be granted, as Deborah contends occurred here, that judgment may be collaterally attacked.

Lack of jurisdiction in the "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. [Citation.]" (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196, 25 Cal.Rptr.3d 298, 106 P.3d 958 ["in the absence of subject matter jurisdiction, a trial court has no power `to hear or determine [the] case.' [Citation.] And any judgment or order rendered by a court lacking subject matter jurisdiction is `void on its face....' [Citation.]"].) In a broader sense, lack of jurisdiction also exists when a court "make[s] orders which are not authorized by statute." (Polin v. Cosio (1993) 16 Cal.App.4th 1451, 1454-1455, 20 Cal.Rptr.2d 714.) "`[I]t seems well settled ... that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction....'" (Abelleira, at p. 290, 109 P.2d 942; see Polin, at pp. 1455-1457, 20 Cal.Rptr.2d 714 [judgment awarding custody exceeded statutory authority]; Goodarzirad, supra, 185 Cal.App.3d at pp. 1024-1027, 230 Cal.Rptr. 203 [stipulated judgment to terminate paternity was void and subject to collateral attack].)⁶

If the trial court has subject matter jurisdiction to hear or determine a case and personal jurisdiction over the parties, an order or judgment rendered in excess of the court's jurisdiction, such as by its failure to follow fundamental procedures prescribed by statute, remains valid but voidable. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164, 16 Cal.Rptr.3d 754; In re Andres G. (1998) 64 Cal.App.4th 476, 482-483, 75 Cal.Rptr.2d 285.) A stipulated judgment or other order in excess of the court's jurisdiction may not be collaterally attacked absent unusual circumstances or compelling policy considerations. (In re...