Filed 11/5/19 Tehama County Dept. of Child Support Services v. Uptain CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

—-

TEHAMA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Plaintiff and Respondent,

v.

VERLE WAYNE UPTAIN,

Defendant and Appellant.

C085377

(Super. Ct. No. 32035)

Defendant Verle Wayne Uptain (Uptain) appeals from the denial of his motion to set aside a child support order entered in 1993. The trial court denied Uptain’s motion as untimely. On appeal, Uptain argues that the trial court erred because the support order is void and therefore subject to attack at any time. He further argues that the trial court denied him a meaningful opportunity to show the order is void by denying his request to present live testimony at the hearing on his motion. Finding no abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1990, plaintiff Tehama County (County) filed a complaint for reimbursement of public assistance and to establish child support against Uptain. County alleged in its complaint that Uptain had a parental obligation to support his minor child under a judgment entered on December 18, 1989. County requested, among other things, that the court order Uptain to (1) pay a reasonable amount of monthly support for his child, (2) pay arrearages for past unpaid child support, (3) and reimburse County for public assistance paid for the support of his child.

County personally served Uptain with the summons and complaint on May 12, 1992. In July 1992, Uptain answered the complaint. Trial was initially scheduled for August 17, 1992. Prior to trial, Uptain filed an income and expense declaration describing his monthly income and expenses.

Trial commenced on November 12, 1992. According to the court’s minute order, Uptain appeared in court with his attorney. At trial, counsel stipulated that Uptain shall pay child support of $216.50 per month, commencing November 1992. The court filed a formal order on January 15, 1993, after Uptain’s attorney approved it as to form (the 1993 Support Order).

In or around 2005, the Child Support Division of the Office of the Texas Attorney General filed an action to register the 1993 Support Order for enforcement in Texas. Uptain filed an answer in the Texas proceeding. Among other things, Uptain denied the validity and enforceability of the 1993 Support Order. In March 2006, the District Court of Bexar County, Texas, confirmed registration of the 1993 Support Order. The Texas court denied Uptain’s challenge to the validity of the support order, stating that his “remedy lies in California, not Texas.”

On November 15, 2016, over 10 years after the Texas court issued its order confirming registration, Uptain filed a motion in the Tehama County Superior Court for an order setting aside the 1993 Support Order. As grounds for relief, Uptain alleged that he lacked actual notice of the November 12, 1992 trial. Specifically, on the morning of November 12, when he arrived at the courthouse for trial, he avers that his former attorney told him the matter had been “re-set due to a scheduling conflict and the need to obtain income verification from [him].” He asserts that, without his knowledge, his former attorney “appeared on [his] behalf and entered a stipulation that [he] was unaware of and did not approve.” Uptain argued that because the 1993 Support Order was based on a stipulation entered into without his knowledge or consent, it is void and must be set aside.

In its opposition, County disputed that Uptain lacked actual notice of the November 12, 1992 trial. County also argued that Uptain’s request to set aside the 1993 Support Order was untimely.

Uptain’s motion was heard on June 8, 2017. At the hearing, Uptain’s counsel asked the court if he could place his client on the stand to give live testimony. The trial court denied the request, but allowed Uptain’s counsel to make an offer of proof concerning what his testimony would be. At the end of the hearing, the court denied the motion as untimely.

DISCUSSION

Timeliness of the Motion to Set Aside the Judgment

A motion seeking relief from a judgment is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse of discretion. (In re Marriage of Wipson (1980) 113 Cal.App.3d 136, 141.) Here, Uptain argues that the trial court abused its discretion when it denied his motion to set aside the 1993 Support Order. Because the support order was based on a stipulation agreed to by Uptain’s attorney purportedly without his knowledge or consent, he argues the order is void and subject to attack at any time under Code of Civil Procedure section 473, subdivision (d). We find no abuse of discretion.

In determining whether a judgment is void under section 473, subdivision (d), courts distinguish between judgments that are void on the face of the record, and judgments that appear valid on the face of the record but are voidable through consideration of extrinsic evidence. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020 (Pittman).) It is well settled that a judgment that is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, is subject to attack at any time. (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 19; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 43.) In contrast, as Uptain acknowledged in his motion below, where the judgment’s invalidity does not appear on its face, a motion to set aside a judgment must be made within a reasonable time after the party learns of the judgment. (Plaza Hollister, supra, at p. 19; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1019; Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1122; but see Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2018) 24 Cal.App.5th 115, 135, review granted Sept. 26, 2018, S249923.)

Here, Uptain conceded that the 1993 Support Order was valid on its face. Thus, the support order was at most voidable, and Uptain was required to bring his motion to vacate the judgment within a reasonable time after he learned of it. Uptain failed to do so. The evidence shows that Uptain was aware of the 1993 Support Order as early as November 12, 1992, and no later than 2006. He nevertheless waited over 10 years after the Texas proceedings before challenging the judgment. We agree with the trial court that this 10-year delay was not reasonable and therefore the trial court properly denied his motion under section 473, subdivision (d).

Denial of Request to Give Oral Testimony

Uptain also argues that the trial court abused its discretion by refusing to allow him to present oral testimony at the hearing on his motion. Again, we find no abuse of discretion.

Section 2009 empowers trial courts to determine civil law and motion matters on the basis of affidavits/declarations alone, without oral testimony. (§ 2009; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483.) The California Rules of Court declare that evidence at a law and motion hearing “must be” presented by declaration or request for judicial notice, unless the court orders otherwise. (Cal. Rules of Court, rule 3.1306(a).) Under rule 3.1306(b), a request to introduce oral evidence at a law and motion hearing must be filed no later than three court days before the hearing. (Cal. Rules of Court, rule 3.1306(b).) Uptain failed to comply with this rule. Thus, the trial court did not abuse its discretion in denying his request.

DISPOSITION

The trial court’s order is affirmed. County is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

KRAUSE , J.

We concur:

RAYE , P. J.

BLEASE , J.