Marriage of Maxfield, In re

• Decision Date: 06 May 1983
• Citation: 191 Cal.Rptr. 267,142 Cal.App.3d 755
• Parties: In re the MARRIAGE OF Georgina J. and Charles W. MAXFIELD. Georgina J. MAXFIELD, Appellant, v. Charles W. MAXFIELD, Respondent. A011878. Civ. 50536.
• Court: California Court of Appeals Court of Appeals

Page 267

191 Cal.Rptr. 267

142 Cal.App.3d 755

In re the MARRIAGE OF Georgina J. and Charles W. MAXFIELD Georgina J. MAXFIELD, Appellant, v. Charles W. MAXFIELD, Respondent.

A011878.

Civ. 50536.

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

May 6, 1983.

John F. Foley, San Jose, for appellant.

Edward S. Miller, San Jose, for respondent.

CHRISTIAN, Associate Justice.

Georgina J. Maxfield appeals from an order in this marital proceeding dismissing a contempt proceeding and vacating a prior order for modification of the interlocutory judgment of dissolution. Reversal is required as to both actions.

The procedural sequence must be related in detail. On August 3, 1976, the superior court rendered an interlocutory judgment of dissolution of the marriage of Georgina and Charles Maxfield, reserving jurisdiction to award spousal support for a period of two years.

The judgment recognized a community property interest in husband's pension from Lockheed, his employer at that time. It provided that wife was entitled to a portion of payments ultimately received by husband according to the following formula:

One-half of each payment received by respondent upon his retirement from Lockheed computed as follows:

18 Monthly

------------- x payment from

Total months Lockheed

employed by

Lockheed

The decree also awarded wife "$425.00 per month as spousal support beginning on July 15, 1976, for three months, and $325.00 per month beginning on October 15, 1975 [sic] for three months." The court reserved "jurisdiction to award spousal support" until July 15, 1978.

On July 11, 1978, pursuant to a stipulation executed by the spouses and their attorneys, the court modified the interlocutory judgment. The stipulated modification provided that husband pay wife a lump sum of $1,000 immediately and spousal support of $750 per month commencing July 1, 1978. It further stated that monthly spousal support "shall be increased by 8 percent" each year. The wife waived all interest in husband's pension "including the right to receive any portion thereof as set forth in ... the Interlocutory Judgment" of 1976.

Initially husband complied with the support provisions of the modification. But in December 1979 he ceased making spousal support payments and, on advice of counsel, informed wife that he considered the 1978 modification void and non-binding. Wife sought a contempt sanction to enforce the decree as modified. After hearing testimony the court terminated the contempt hearing and vacated the order of modification on the ground that "the order of modification was entered in reliance upon the partys' [sic] stipulation and not upon a showing of substantial change of circumstances." The present appeal followed.

I

Where no party appeals or otherwise directly attacks, within the applicable statutory periods, a modification in the spousal support component of an interlocutory judgment of dissolution, that modification becomes final for purposes of res judicata and collateral estoppel. (Wodicka v. Wodicka (1976) 17 Cal.3d 181, 188-189, 130 Cal.Rptr. 515, 550 P.2d 1051.) The court nevertheless vacated the order of modification, because the order failed to recite findings of changed circumstances. It is true that such findings are ordinarily a prerequisite for a modification of spousal support. (In re Marriage of Clements (1982) 134 Cal.App.3d 737, 745-746, 184 Cal.Rptr. 756.) It is not error, however, to make no findings of changed circumstances where the parties have stipulated to the terms of the modification and their attorneys have drafted and submitted to the court the order ultimately entered. (Compare In re Marriage of Davis (1983) 141 Cal.App.3d 71, 75-76, 190 Cal.Rptr. 104 [findings mandatory "where requested"].) Doctrines of waiver and invited error will generally bar even direct attack upon an order or judgment entered pursuant to stipulation. Here, husband did not appeal the order or make a timely motion under Code of Civil Procedure section 473 to set it aside. The stipulated modification thereby became res judicata. (In re Marriage of Buckley (1982) 133 Cal.App.3d 927, 934-936, 184 Cal.Rptr. 290; see also In re Marriage of Mahone (1981) 123 Cal.App.3d 17, 21-22, 176 Cal.Rptr. 274.)

The claimed error does not render the order void. The court had jurisdiction over the parties and subject matter. In the sense that any error is contrary to law, the court arguably exceeded its "authority," as husband claims, by not expressly finding changed circumstances before modifying spousal support. The defect, however, is merely a nonjurisdictional mistake of law and the order remains immune from collateral attack. Haldane v. Haldane (1962) 210 Cal.App.2d 587, 26 Cal.Rptr. 670, is instructive. There, the husband maintained that an interlocutory dissolution decree was void due to the wife's failure at trial to introduce corroborative evidence of her residency. The court found this deficiency in the showing of the prevailing party at the prior proceeding did not prevent that determination from being res judicata. "Although this oversight was judicial error which would have required a reversal if an appeal had been taken from the judgment [citation], it does not follow that the interlocutory decree was void." (Id., at p. 597, 26 Cal.Rptr. 670.) Similarly, in Badillo v. Badillo (1981) 123 Cal.App.3d 1009, 177 Cal.Rptr. 56, a court ordered an allegedly unequal division of community property and thereby exceeded its jurisdiction by awarding relief in excess of that demanded in the complaint. "The relief awarded is within the scope of the prayer for disposition of property 'according to law,' even though the offset failed to comply with Civil Code section 4800. The error is subject to reversal or modification on appeal, but is not void or subject to collateral attack [citations]." (Id., at p. 1012, 177 Cal.Rptr. 56.)

A judgment or order which has become final may be set aside upon grounds of extrinsic fraud or mistake. (In re Marriage of Park (1980) 27 Cal.3d 337, 342, 165 Cal.Rptr. 792, 612 P.2d 882; Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-473, 82 Cal.Rptr. 489, 462 P.2d 17; In re Marriage of Carletti (1975) 53 Cal.App.3d 989, 992-993, 126 Cal.Rptr. 1; In re Marriage of Nicolaides (1974) 39 Cal.App.3d 192, 198, 114 Cal.Rptr. 56.) "Intrinsic fraud or mistake, on the other hand, is not grounds for relief. When the fraud or mistake ' "goes to the merits of the prior proceedings, which should have been guarded against by the plaintiff at that time," ' relief is denied in deference to the stronger policies of finality of judgments and res judicata. [Citations.]" (In re Marriage of Wipson (1980) 113 Cal.App.3d 136, 141-142, 169 Cal.Rptr. 664.) As husband had every opportunity during the modification proceedings to require the wife to show changed circumstances, the absence of proof and findings on this subject is intrinsic mistake. Even were it possible to characterize any mistake here as extrinsic, equitable relief of this sort would be unavailable to husband here as, by his stipulation to the modification order, "the complaining party has contributed to the fraud or mistake giving rise to the judgment thus obtained." (Kulchar v. Kulchar, supra, 1 Cal.3d 467, 473, 82 Cal.Rptr. 489, 462 P.2d 17; In re Marriage of Carletti, supra, 53 Cal.App.3d 989, 992-993, 126 Cal.Rptr. 1.)

II

Husband maintains this court should affirm the order vacating the modification as the court lacked jurisdiction to extend spousal support beyond July 15, 1978. ¹ Because the disposition, if proper, must be affirmed even if the ground upon which the court relied was not correct, we now examine husband's argument.

The interlocutory judgment of 1976 states that "jurisdiction to award spousal support is reserved for a period of two years commencing July 15, 1976." The modification order providing for monthly support payments of $750 (to be increased 8 percent each year) was filed July 11, 1978. Husband, relying upon Civil Code section 4801, subdivision (d), as construed in In re Marriage of Morrison (1978) 20 Cal.3d 437, 143 Cal.Rptr. 139, 573 P.2d 41, argues that the court, by its 1976 decree, divested itself of jurisdiction to extend spousal support beyond July 15, 1978.

"Collateral attack is proper to contest lack of personal or subject matter jurisdiction or the granting of relief which the court has no power to grant [citations]." (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950, 126 Cal.Rptr. 805, 544 P.2d 941; see also Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493, 165 Cal.Rptr. 825, 612 P.2d 915; Moffat v. Moffat (1980) 27 Cal.3d 645, 654, 165 Cal.Rptr. 877, 612 P.2d 967.) There is a jurisdictional aspect to the alleged error in the 1978 modification. But the claimed defect does not necessarily open the order to collateral attack. "[Even if] the defect in the divorce judgment was jurisdictional, ... in the absence of unusual circumstances 'collateral attack will not be allowed where there is fundamental jurisdiction [i.e. of the person and subject matter] even though the judgment is contrary to statute.' [Citation.] Where some of the parties have relied on, or changed their position in accordance with the former judgment, a court may deny collateral attack. [Citations.]" (Armstrong v. Armstrong, supra, 15 Cal.3d 942, 951, 126 Cal.Rptr. 805, 544 P.2d 941; see also Moffat v. Moffat, supra, 27 Cal.3d 645, 657, 165 Cal.Rptr. 877, 612 P.2d 967.) The court in 1978 had "fundamental jurisdiction": it had personal jurisdiction over the parties and it had subject matter jurisdiction over spousal support. (Compare In re Marriage of Smith (1982) 135 Cal.App.3d 543, 185 Cal.Rptr. 411 [judgment set aside where personal jurisdiction lacking due to defective service of process].) The fault, if any, was in the extent of the relief granted. Finally, there was detrimental reliance upon the validity and finality of the stipulated modification in the...