McCallum v. McCallum

• Decision Date: 17 March 1987
• Citation: 190 Cal.App.3d 308,235 Cal.Rptr. 396
• Court: California Court of Appeals Court of Appeals
• Parties: , 55 USLW 2614 Patricia K. McCALLUM, Obligee and Respondent, v. James W. McCALLUM, Obligor and Appellant. Civ. B020307.

Page 396

235 Cal.Rptr. 396

190 Cal.App.3d 308, 55 USLW 2614

Patricia K. McCALLUM, Obligee and Respondent, v. James W. McCALLUM, Obligor and Appellant.

Civ. B020307.

Court of Appeal, Second District, Division 5, California.

March 17, 1987.

O'Melveny & Myers, Philip F. Westbrook and Ralph W. Dau, Los Angeles, for obligor and appellant.

Thiessen, Gagen & McCoy, M. Sue Greicar and Michael W. Carter, Danville, for obligee and respondent.

EAGLESON, Associate Justice.

We hold that a 1983 application under the Sister State Money Judgment Act (Code Civ. Proc., §§ 1710.10 et seq.) ¹ to enforce three New York money judgments for spousal and child support resulted in a final judgment which is not subject to collateral attack under the Revised Uniform Reciprocal Enforcement of Support Act (§§ 1650 et seq.). We therefore reverse the trial court's order denying the motion of appellant James McCallum (Husband) to vacate registration of a foreign support order.

FACTS AND PROCEDURAL HISTORY

As part of their marital dissolution proceedings, Husband and Wife entered into a separation agreement in New York. By its terms, Husband agreed to pay spousal and child support. When he failed to do so, Wife sued for past spousal and child support, and obtained three New York money judgments:

(1) May 22, 1974: Wife was awarded past due support in the amount of $17,880.87. Her attorney, Sweeney, was awarded $750.00 in attorney's fees.

(2) January 13, 1975: $750.00 attorney's fees were awarded to her attorney, Sweeney.

(3) September 10, 1975: Wife was awarded $18,396.00 for spousal and child support. Attorney's fees were awarded to her attorney in the sum of $1,000.00.

As a result of garnishment proceedings in New York, $17,880.87 of the May 22, 1974, judgment was satisfied. Husband thereafter moved to Los Angeles County, California. Wife also moved to California.

PROCEEDINGS UNDER SISTER STATE MONEY JUDGMENT ACT (SSMJA)

On October 3, 1983, Wife filed an application for entry of judgment under SSMJA in Los Angeles County (Case No. C470273). (§§ 1710.10 et seq.) Her claim was predicated on all three New York judgments. Under item 5(a) of the application, she alleged that the "[a]mount remaining unpaid on sister state judgment [is] $2,500." She also requested $95.00 as the cost of filing the application. There was no breakdown of the items to show how Wife arrived at the $2,500.00 figure. There also were no labels identifying the claims as attorney's fees, spousal support or child support.

On November 18, 1983, Wife filed an amended application under SSMJA which only added Wife's California address. On that same date, an attorney-prepared judgment was signed and entered in Wife's favor against Husband in the amount of $2,500, zero interest, and filing fees in the sum of $92.00. Husband filed a motion to vacate this judgment which was denied. Wife later acknowledged that she had received a check tendered in full satisfaction of this judgment.

On January 26, 1984, Wife lodged with the court a second amended application for entry of judgment on sister state judgment based on the same three, earlier identified New York judgments (Case No. C470273). She now alleged that the amount remaining unpaid on the sister state judgment was $23,276.87, that she incurred a filing fee of $92.00, and that there was accrued interest on sister state judgment in the amount of $10,685.03. She prayed for a total judgment of $34,053.90. This application was never acted upon by the court, and Wife never pursued the issue.

On March 28, 1985, Wife filed a notice of motion for order reconsidering decision, correcting error in judgment, amending judgment nunc pro tunc and/or consolidating actions (Case No. C470273). In this motion, she requested a nunc pro tunc amendment of the SSMJA judgment entered earlier on November 18, 1983, in the following manner: (a) John J. Sweeney, her New York attorney, be added as plaintiff; (b) the amount of the judgment be changed from $2,500.00 to $21,148.87; (c) the amount of interest be changed from zero dollars to $13,982.58; and (d) the amount of costs be changed from zero dollars to $126.00. In the alternative, she prayed that the matter be consolidated with the RURESA action. (See infra.)

On April 16, 1985, Wife's motion was denied by the court, with the following notation: "Motion to correct clerical error denied. There was no clerical error by the court. The time for reconsideration has long expired." With respect to consolidation, the court ruled: "Motion to consolidate denied without prejudice. The court is unable to determine what cases are the subject of consolidation request."

No further proceedings were taken by Wife from the denial of her March 28 motion. Consequently, the judgment of November 18, 1983, is final.

PROCEEDINGS UNDER REVISED UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT (RURESA)

On April 3, 1985, while her motion for reconsideration under SSMJA was pending, Wife filed a statement for registration of foreign support order and clerk's notice under RURESA (Case No. 175615). (§§ 1650 et seq.) In item 7b 5, she alleged that the "[a]mount of support now due and remaining unpaid [is] $33,484.62, including costs and interest." This statement was predicated only upon the New York judgments of May 22, 1974, and September 10, 1975. In response to Wife's motion, on April 23, 1985, Husband filed a petition to vacate registration of foreign support order, which was not acted upon by the trial court.

On October 1, 1985, Husband filed a notice of motion to grant petition to vacate registration of foreign support order. The matter was continued from time to time. Finally, on February 18, 1986, the motion was denied by minute order without explanation. Husband appeals from this February 18 order. We reverse.

DISCUSSION

Section 1710.10, subdivision (c) defines a sister state judgment as that "part of any judgment, decree, or order of a court of a state of the United States, other than California, which requires the payment of money, but does not include a support order as defined in subdivision (k) of Section 1653." Section 1653, subdivision (k) is part of RURESA and defines a "support order" as "any judgment, decree, or order of support in favor of an obligee whether temporary or final, or subject to modification, revocation, or remission, regardless of the kind of action or proceeding in which it is entered."

Husband argues that when Wife first sought enforcement of the New York money judgments in 1983, they were not considered to be "support orders" and therefore were enforceable under SSMJA. Husband reasons that Wife's subsequent attempt to register the same judgments under RURESA is nothing more than a collateral attack on the now final SSMJA judgment. Since the doctrine of res judicata bars this type of collateral attack, Husband insists that the February 18, 1986 RURESA order should be reversed and his motion to vacate registration of a foreign support order granted.

Wife responds by arguing that the SSMJA proceedings were directed only to the attorney's fee portion of the New York judgments. Since she purportedly has never sought to enforce the spousal and child support portions of these judgments, she is not precluded from pursuing these claims under RURESA.

We begin by noting that statements made by Wife at various stages of the proceedings contradict her position on appeal. In a memorandum she filed in opposition to Husband's motion for order vacating the SSMJA judgment, her counsel stated: "The judgments herein at issue, all entered before 1976, are for spousal and child support obligations then due and for attorney's fees awarded...."

Also, the claim for counsel fees was not Wife's to assert. According to documents that she filed under RURESA, which were confirmed by Sweeney in a declaration he filed in the RURESA matter, the attorney's fee awards were due him. This fact was also confirmed by Wife in her March 28, 1985, motion for reconsideration, wherein she sought, inter alia, to name Sweeney as plaintiff. There would be no need to add Sweeney as a plaintiff if the attorney's fee issue had been resolved. Furthermore, in a declaration filed on January 2, 1986, Sweeney claimed that he had not been paid the $2,500 owed him even though, as we have noted earlier, Wife admitted having received a check tendered in full satisfaction of the November 18, 1983 SSMJA judgment. If this tender was for payment of counsel fees, the check should have been delivered to Sweeney.

Moreover, the SSMJA claim itself reveals that it was predicated on all three New York judgments without segregation as to attorney's fees, spousal support, child support or interest. The order, prepared by Wife's attorney and submitted to the court for signature, did not differentiate between the various portions of the New York judgments or specify the components therein adjudicated. Everything was lumped together. Upon this record, we can only conclude that the court considered all of the allegations and rendered judgment accordingly. ²

At the time Wife commenced her SSMJA proceedings in 1983, the appellate decisions in California clearly provided that both the attorney's fee and support provisions of the New York judgments were enforceable under SSMJA, but not under RURESA. Fishman v. Fishman (1981) 117 Cal.App.3d 815, 822-823, 173 Cal.Rptr. 59 (District Two, Division One) held that a New York judgment for attorney's fees and costs in a marriage dissolution action was not a support order and therefore not excluded under SSMJA. In so ruling, the court hinted that an award of attorney's fees and costs could not be sustained under RURESA. In Liebow v. Superior Court (1981) 120 Cal.App.3d 573, 579-581, 175 Cal.Rptr. 26 (Fourth District, Division Two), the court squarely held that a specified amount of back alimony, reduced to an Ohio money judgment, was not a "support order" under RURESA and consequently was enforceable...