Thompson v. Thames, B106312

• Decision Date: 25 September 1997
• Docket Number: No. B106312,B106312
• Citation: 57 Cal.App.4th 1296,67 Cal.Rptr.2d 695
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 7674, 97 Cal. Daily Op. Serv. 7678, 97 Daily Journal D.A.R. 12,305 Anita THOMPSON, Plaintiff and Respondent, v. Tyrone THAMES, Defendant and Appellant.

Page 695

67 Cal.Rptr.2d 695

57 Cal.App.4th 1296, 97 Cal. Daily Op. Serv. 7674,

97 Cal. Daily Op. Serv. 7678,

97 Daily Journal D.A.R. 12,305

Anita THOMPSON, Plaintiff and Respondent, v. Tyrone THAMES, Defendant and Appellant.

No. B106312.

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

Sept. 25, 1997.

Review Denied Dec. 10, 1997.

[57 Cal.App.4th 1298] Louis P. Dell, Costa Mesa, for Defendant and Appellant.

Gil Garcetti, District Attorney, Patrick D. Moran, Assistant Head Deputy District Attorney, Andrea R. Schrote and Marshall Rieger, Deputy District Attorneys, for Plaintiff and Respondent.

HASTINGS, Associate Justice.

The shameful history of delay in this matter is reminiscent of that nightmare case of Dickens' imagination, Jarndyce and Jarndyce. ¹ In this case we address the retroactive portion of a Los Angeles County judgment issued under the Uniform Reciprocal Enforcement of Support Act (URESA, Fam.Code, §§ 4800 et seq.) which orders child support payments retroactive to 1990 based on a court order issued in another California jurisdiction prior to an order changing venue to Los Angeles County.

BACKGROUND

On January 11, 1980, Sherrianita P. (minor) was born in Washington, D.C., to Anita P. (now Anita Thompson) (Anita) and appellant. Appellant provided some financial support for the minor, and minor lived with appellant's parents from August 1980 to February 1985 while Anita attended college. At some point after February 1985, Anita took the minor to live with her. Appellant moved to California, and the minor lived with him one month each summer.

In 1986, Anita, now married and residing in North Carolina, experienced sufficient financial difficulties to cause her to contemplate proceedings against appellant for support of the minor. By letter dated November 26, 1986, a North Carolina agency requested a United States Navy installation in San Diego, California, to confirm a San Diego address for appellant, or to provide information regarding his then current or last known address. Early in 1988, Anita initiated child-support proceedings, in forma pauperis, through the auspices of North Carolina's Guilford County Child Support Enforcement Agency. She executed an URESA Uniform Support Petition, designated number 2197857, requesting establishment of paternity, $250 a month in child support, and medical coverage for the minor. In support of the petition, Anita executed a paternity affidavit, naming appellant as minor's father and stating that the child had been born after appellant and Anita had lived together at the home of appellant's parents.

In compliance with URESA requirements, North Carolina Judge Robert E. Bencini, Jr. certified that the petition and testimony set forth facts from which appellant could be found to owe a duty of support to the minor, and that appellant was believed to be residing at the San Diego address therein indicated. Judge Bencini ordered that the certificate and petition be sent to San Diego, California.

On March 23, 1988, the San Diego County superior court received the above documents. The clerk of that court assigned the matter case No. D 258399 (Anita P. v. Thames (Supr.Ct. San Diego County, 1988)).

On April 10, 1990, the district attorney of San Diego County, representing "the public interest" but not Anita individually (Welf. & Inst.Code, § 11475.1, subd. (a), Monterey County v. Cornejo (1991) 53 Cal.3d 1271, 1284, 283 Cal.Rptr. 405, 812 P.2d 586), filed an order to show cause (OSC), requiring appellant to appear on June 11, 1990, to give legal reason why he should not be ordered to pay child support. The superior court of San Diego County issued a summons. On April 18, 1990, appellant received personal service of the summons, OSC, URESA petition, and related documents.

On June 11, 1990, appellant failed to appear and the court entered an order by default, requiring appellant to pay $250 a month effective July 1, 1990, by wage assignment disbursed to North Carolina.

On October 2, 1990, appellant filed an OSC to "Set aside judgment/order, quash wage assn., and for change of venue." In support, appellant declared he had contacted the San Diego district attorney's office several times prior to the June 11, 1990 hearing and requested that the matter be transferred to Los Angeles. Appellant stated that the district attorney's office had agreed but then had failed to effect the transfer. Appellant asked the San Diego court to set aside the "Judgment and/or Order," based upon mistake, inadvertence, surprise, and excusable neglect (Code Civ. Proc., § 473), and transfer the case to Los Angeles County, where he resided. Appellant denied having fathered the minor and asked the court to quash the wage assignment.

On October 29, 1990, the San Diego County court entertained appellant's requests in a reported hearing, for which there is no transcript in the record on appeal. Anita and the minor did not appear and were not personally represented at this hearing. Handwritten notations on the minute order first indicate appellant's places of employment and the location of his residence in Los Angeles County. Then come the following statements: "[Appellant] to cooperate in accepting service. The Dept. of Revenue's Recovery [unit] to transfer all monies held in trust to the appropriate Los Angeles agency. Pursuant to CCP § 473 all orders of 6-11-90 the judgment are set aside. Venue transferred to Los Angeles County. The court retains jurisdiction to make all child support orders retroactive to the original hearing date. The wage assignment order is vacated." (Italics added.) The order bears either the signature of the trial judge or his stamped signature. Appellant raised no objection of any kind to this order and requested no statement of decision.

Between October 29, 1990, and January 23, 1992, this matter did not progress. For unknown reasons, Los Angeles County was unaware that San Diego case No. D 258399 had been ordered transferred to its jurisdiction.

On January 23, 1992, the California Department of Justice Central Registry, located in Sacramento, received a "Child Support Enforcement Transmittal" from North Carolina, which basically reiterated Anita's claims. This document reflects under the heading "Date and Type of Last Court/Administrative Action" court case No. D 258399, that is, the San Diego case. It also reflects the number borne by Anita's original North Carolina petition, 2197857. Appellant's motion for OSC to set aside the order, quash the wage assignment, and transfer the case to Los Angeles County is referenced as an attachment.

By letter dated April 7, 1992, the California Department of Justice Central Registry notified North Carolina that it had determined the documentation package to be "legally sufficient for processing in California" and had forwarded the entire package to Los Angeles County for further action.

On June 26, 1992, the clerk of the superior court of Los Angeles County notified the Los Angeles County District Attorney that documents regarding reciprocal support proceedings had been received from North Carolina and filed, and that the clerk had forwarded the notice and copies of those documents to the district attorney's office on that same date. The clerk designated the matter as Los Angeles County case No. BL009125.

Also filed on June 26, 1992, was a second version of Anita's petition, bearing North Carolina file number 91CVD11268 and referencing her original petition. As relevant, the second petition differs from the original version in that it does not request establishment of paternity but does request arrearages "if established by [the] court." As "current ordered support," the document indicates an order of $250 monthly and then states: "set aside judgment of 6/11/90, transfer venue to Los Angeles County, wage assignment vacated; Court retains jurisdiction to make all child support orders retroactive to the original hearing date (6/11/90)." (Italics added.) Also referenced is an arrears statement. A notarized document, signed by Anita and a North Carolina child support agency supervisor, reads in part: "See original order (6-11-90), [appellant's] correspondence and motion, and subsequent order (10-29-90). Per telephone calls to both San Diego and Los Angeles Counties, original petition, updated documents and all orders pertaining to the original action have been lost in the venue change. If [appellant] raises the issue of paternity (although paternity was clearly established pursuant to the 6-11-90 order) [Anita] is willing to submit to bloodtesting. Upon entry of an order, we request arrearage be assessed from date of original order to date of subsequent order and respondent be ordered to pay same in full."

On October 15, 1992, the Los Angeles County district attorney issued a citation to appellant, referencing Los Angeles County superior court case No. BL009125. The citation required appellant to appear on November 10, 1992, to show cause why an order should not be made and entered based on the URESA petition on file, "a copy of which is attached, directing that you pay such sum as the court may determine for the support of the [minor]."

On November 10, 1992, the district attorney took the matter off calendar.

The matter apparently lay dormant until August 23, 1993, when the court itself set a hearing for September 22, 1993. On that date, the court granted the request of the district attorney to take the matter off calendar, and reset the hearing for January 6, 1994. On January 6, 1994, the court again granted the request of the district attorney to take the matter off calendar, and reset the hearing for March 9, 1994. On March 9, 1994, for the third time, the court granted the request of the district attorney to take the matter off calendar, and reset the hearing for October 28, 1994.

On October 28, 1994, the district attorney failed to appear. The court granted appellant's motion for appointed counsel, pro...