Marriage of Brockman, In re

• Decision Date: 16 September 1987
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF Debra D. and Donald A. BROCKMAN, Respondent and Appellant. Debra D. BROCKMAN, Appellant, v. Donald A. BROCKMAN, Respondent. B023346.

Page 96

240 Cal.Rptr. 96

194 Cal.App.3d 1035

In re MARRIAGE OF Debra D. and Donald A. BROCKMAN, Respondent and Appellant.

Debra D. BROCKMAN, Appellant, v. Donald A. BROCKMAN, Respondent.

B023346.

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

Sept. 16, 1987.

As Modified Oct. 16, 1987.

Review Denied Dec. 3, 1987.

Ira H. Lurvey, Judith Salkow Shapiro and Lurvey & Shapiro, Los Angeles, for respondent and appellant.

William S. Garr, Don Mike Anthony and Hahn & Hahn, Pasadena, for petitioner and respondent.

KINGSLEY, Acting Presiding Justice.

Wife appeals the denial of her motion to vacate following a judgment of dissolution. We reverse.

The issue on appeal is whether wife can set aside a property and custody settlement agreement that she signed to end the parties' bitter custody dispute. The facts are as follows: In 1984, wife filed for divorce in Pasadena seeking to terminate her five-year marriage to respondent. At the same time, she obtained an ex parte order restraining husband from approaching within 100 yards of herself, the couple's young son, and appellant's 14-year old daughter. Respondent stated that this action was never served on him, however, and shortly thereafter he filed his own petition for dissolution in Burbank. In spite of the restraining order, appellant allowed respondent to take the children away for the weekend. Respondent flew the children from Sacramento, where they were staying with appellant, to Los Angeles, and refused to return them. He then applied for, and was granted, his own ex parte order in Burbank awarding him custody of the children.

After some weeks with the children, however, respondent reconsidered and offered to return custody to appellant. Appellant stated that respondent promised to relinquish custody to her at an upcoming order to show cause. According to appellant, however, at the time of the hearing, respondent presented lengthy demands and threatened to keep custody of the children unless appellant agreed. Respondent's attorney wrote out a settlement agreement by hand, in a hallway of the courthouse, which appellant signed. Essentially, appellant gave up all claims to the couple's estimated $400,000 to $800,000 in community property in exchange for sole physical custody of the children. She was allowed to keep $10,000 and a Camaro automobile, and was awarded $500 a month in child support and $300 a month spousal support for ten years. Husband agreed to forfeit a $100,000 note if he should ever contest the custody or support order.

Eight months later, the judgment of dissolution was signed and entered by the court incorporating the above terms. Appellant moved to vacate the judgment, however, as it contained several provisions which were not a part of the agreement. Respondent indicated that he had no opposition to this motion.

In the meantime, however, appellant changed attorneys. Four months after the judgment was entered, she moved to vacate it in its entirety on the ground that the settlement agreement was coerced. The motion to vacate was denied and this appeal follows.

I

Ordinarily, the denial of a motion to vacate a judgment is not an appealable order. ¹ If the original judgment was appealable--as was the case here--allowing an appeal from the motion to vacate that judgment gives the appellant either two appeals from the same decision, or, if no timely appeal has been made, an unwarranted extension of time in which to bring the appeal. (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1011, 148 Cal.Rptr. 273.) An exception has been recognized, however, where the judgment appealed from is void. There, the denial of a motion to vacate is an order giving effect to a void judgment, and is itself void and appealable. (In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020, 1030-1031, 230 Cal.Rptr. 203.) Appellant argues that the judgment in the instant case is just such a void order.

Appellant's contention is that the court acted in excess of its jurisdiction in approving husband's offer to forfeit the $100,000 note should he ever contest the award of custody or support. In exchange for this promise, husband retained virtually all of the couple's community property. A similar situation was presented in In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020, 230 Cal.Rptr. 203. There, husband waived all rights to custody and control of his son in exchange for wife's promise to hold him harmless for any ordered child support. Husband appealed and the court concluded that the judgment was in excess of the trial court's jurisdiction and therefore void. As the court noted:

"The entire scheme underlying custody decrees is that primary consideration must be given to the welfare of the child. [Citation.] The ultimate aim of the court is to serve the best interests and welfare of the minor children. [Citation.] Based on these strong policy reasons, stipulations between parents involving the minor children which attempt to divest the court of jurisdiction are void...." (In re Marriage of Goodarzirad, supra, 185 Cal.App.3d at 1027, 230 Cal.Rptr. 203.)

The court went on to observe:

" 'Where the welfare of children is involved as it is in divorce cases, parents cannot by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires.' [Citation.] 'The children are not parties to the action for divorce, and the jurisdiction which the statute confers on the court ... cannot be limited or abridged by the contract of the parties.' ..." (In re Marriage of Goodarzirad, supra, 185 Cal.App.3d at 1027, 230 Cal.Rptr. 203.)

The situation presented here is not as extreme as in Goodarzirad, where husband waived all rights to custody and wife all rights to support, but the intent and effect are much the same. Should appellant ever become unfit to care for the children or respondent's financial circumstances worsen, review of the custody and support order would be virtually precluded by the punitive forfeiture provision. What is not the same as in Goodarzirad, however, is the status of the appealing parties. In Goodarzirad, appellant gave up all rights to custody. Appellant has given up no such rights here, however. Rather, she stands to receive $100,000 if respondent ever tries to exercise his rights. While this is grounds for respondent to object, it is not something appellant can appeal. Although this provision is erroneous, errors favorable to an appellant are not subject to review. It is "well settled by statute, case law, and logic that only an aggrieved party may bring the appeal." (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 898, 235 Cal.Rptr. 684.) " ' "A fundamental precept of appellate procedure is that "if the judgment or order is in favor of a party he is not aggrieved and cannot appeal." ' " (Robinson v. Superior Court (1984) 158 Cal.App.3d 98, 107, 204 Cal.Rptr. 366 [emphasis in original].) This is so even though the judgment is void. In Maxwell Hardware Co. v. Foster (1929) 207 Cal. 167, 170, 277 P. 327, the court addressed such a situation. There, plaintiff contended that his recovery was void as defendant had never been served with process. The court observed that:

"The plaintiff now claims that this judgment is void for the reason that no process was ever served upon said defendant Foster. The judgment, however, was in favor of the plaintiff, and even if the same were void, that fact cannot be taken advantage of on an appeal therefrom by the plaintiff in whose favor the judgment was rendered. An appeal from a judgment can only be taken by an aggrieved party thereto, and the plaintiff herein does not sustain that relation to said judgment. A party cannot appeal from a judgment in his favor."

This reasoning was repeated in a marital dispute context in Forkner v. Forkner (1950) 96 Cal.App.2d 363, 215 P.2d 482. There, wife moved to set aside the custody provision of her interlocutory decree of divorce, arguing that the court was without jurisdiction as the minor child was never a resident of this state. The court, citing Maxwell Hardware Co. v. Foster, supra, rejected this argument as the appellant was not aggrieved by the error. Such is the situation presented here. While the forfeiture provision is erroneous, it works only to appellant's advantage. Accordingly, on appeal appellant may not urge the error of the provision as a way of invalidating the judgment, in an attempt to obtain a larger share of the couple's community property. ²

II

Appellant also contends that the judgment is void as the North Central District court in Burbank had no jurisdiction over the parties. According to appellant, husband fraudulently misrepresented that he was living in Glendale in the North Central District, but later acknowledged that he resided only in Pasadena in the Northeast District.

Appellant bases this conclusion on respondent's answer during his deposition. Husband was asked:

"The totality is that since around 1980, to pick a fixed year, your residence has been at 665 Cliff Drive, [in Pasadena] and your office at 9209 East Lower Azusa Road in Rosemead; correct, sir?

"Yes.

"Q And that's been the total condition since then?

"A Yes.

"Q Right up to the present; correct?

"A Yes.

Respondent in a declaration, however, stated:

"On January 18, 1985 [the day husband's dissolution petition was filed], I was actually living at a home I had owned for quite some time at 325 Winchester, Glendale, California."

Faced with disparate evidence on appeal, we must assume to be true those facts that support the trial court's rulings. Even were this not so, however, nothing in respondent's deposition answer demonstrates fraudulent misrepresentation. Appellant has produced no admission of fraud, and did not bother to ask why respondent had listed his address as Glendale in his dissolution petition if his residence was in Pasadena. The answer to this is found in the trial court's tacit assumption that it was more...