Case of the Month Archive

Trial court’s equitable powers are “significant, but not limitless,” panel says . . .

In writ proceeding, Fourth District holds that trial court erred by ordering paternity testing where motion to set aside paternity judgment based on voluntary declaration was filed more than two years after child’s birth, and evidence of extrinsic fraud was insufficient

When Kameron E. was born in November 2000, Jason Rothert and Elicia E. signed a voluntary paternity petition, stating that Jason was Kameron’s biological father. On July 19, 2001, the Orange County Department of Child Support Services (DCSS) filed a complaint, seeking a child-support order against Jason. When Jason failed to file a response, the trial court entered a default paternity judgment on April 23, 2002, and ordered him to pay monthly child support. In August, Jason moved to set aside the default judgment, filing a proposed answer to the complaint in which he admitted paternity but objected to the amount of child support and the assessed arrearages. The court subsequently ordered the judgment set aside as to child support and arrearages.

On July 5, 2006, Jason filed a motion to set aside the paternity judgment. In his supporting declaration, Jason asserted that he and Elicia were not in a “ ‘mutually exclusive relationship’ ” when Kameron was conceived, that he had not seen the child since he was 3 months old, that Elicia had made no effort to facilitate a relationship between Kameron and him, and that some people had told him that Kameron didn’t look like him. Jason contended that less than a year had passed since he had discovered the alleged fraud that led him to sign the voluntary paternity declaration, but he failed to explain the nature of that fraud; he asked the court to order DNA testing to establish paternity. On August 25, the court ordered Jason, Elicia, and Kameron to undergo genetic testing within 30 days; it reasoned that Fam C §7575(b)(1) [authorizes set-aside of voluntary paternity declaration after genetic testing rules out declarant] permitted an order for genetic testing whenever a set-aside motion is filed.

The DCSS appealed, but the trial court refused to stay its proceedings pending the resolution of the appeal. The department petitioned the Fourth District for a writ of mandate, prohibition, or other appropriate relief, and sought an immediate stay, which the justices granted. The appellate court consolidated the writ proceeding with the appeal, treated the petition as a petition for a writ of supersedeas, and issued a writ of mandate.

Duty called . . .
The justices gave short shrift to Jason’s motion to dismiss the appeal on the ground that the order for testing was not an appealable order. Rather than deal with that issue, the panel decided to exercise its discretion to treat the appeal as a petition for a writ of mandate. Noting that the parties had fully briefed the issue, the justices believed that failing to consider it at that point “would be a dereliction of [their] duties”; accordingly, they denied Jason’s motion to dismiss as moot.

There ought to be a law . . .
The DCSS argued that the trial court erred by granting Jason’s motion because it was untimely. The justices noted that before the Legislature enacted Fam C §7645 et seq. [article 1.5 of chapter 4 of the Uniform Parentage Act (UPA)], which outline procedures for challenging paternity judgments on the basis of DNA testing, paternity judgments were generally “conclusive for all purposes.” However, in County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246, 14 Cal.Rptr.3d 905, 2004 CFLR 9679, FIRST ALERT #F-2004-1152, the Second District permitted on equitable grounds a set-aside of a default paternity judgment, even though the motion was untimely under CCP §473(b), because the County had admittedly erred in concluding that the man was the father, but had, in the court’s words, “ ‘retreat[ed] behind the procedural redoubt offered by the passage of time since it took [Navarro’s] default.’ ” Only a few months later, the panel continued, the Legislature passed Fam C §7645 et seq., which provided statutory procedures that appeared to replace the equitable considerations on which the Navarro court had relied. As part of those procedures, the justices reasoned, Fam C §7646(a)(2) sets the time period for challenging a paternity judgment based on a voluntary declaration at within two years of a child’s birth.

No, not that one . . .
Jason contended that the applicable statute here was Fam C §7646(a)(3), which permits a man who was established as a child’s legal father by default judgment prior to the effective date of the statute to file a motion to set aside the judgment within two years following the statute’s enactment. The justices didn’t agree. Jason, they pointed out, was established as Kameron’s father by a voluntary paternity declaration, not by a default judgment, and the existing default judgment, which dealt only with child support, had been set aside “long before” the statute’s effective date of January 1, 2005. The applicable statute here, they concluded, was Fam C §7646(a)(2), and Jason’s motion was clearly untimely under that statute.

Stymied by statute . . .
The justices next noted that along with setting a two-year time limit for filing a set-aside motion, Fam C §7646(a)(2) also states that it does not bar a man who signs a voluntary paternity declaration from pursuing his rights under Fam C §7575(c). That statute allows a declarant to file a set-aside motion under CCP §473 [mistake, inadvertence, surprise, excusable neglect], specifies that the trial court may apply equitable considerations to such a motion, and, if the paternity declaration is set aside, permits the trial court to order genetic testing of the mother, the child, and the alleged father. The panel recognized that the lower court had relied on the equitable considerations permitted by that statute in making its order. However, the justices didn’t think that the lower court’s equitable powers, which they called “significant, but not limitless,” extended as far as the lower court thought they did. As the panel saw it, the trial court could order a set-aside on equitable grounds only if Jason had shown extrinsic fraud. When the justices reviewed Jason’s motion, they found that his allegations-lack of a mutually exclusive relationship with Elicia and reports that Kameron didn’t look like him-were insufficient to show extrinsic fraud. Moreover, the panel said, if the lower court had looked beyond Fam C §7575(b)(1), on which the order for DNA testing was based, to Fam C §7575(b)(3)(A), it would have seen that subsection (b)(3)(A) requires a motion for such testing to be filed within two years of a child’s birth, making Jason’s request for testing untimely. In conclusion, the justices brushed aside the contention that estoppel or res judicata precluded the DCSS from relying on Jason’s declaration; if anything, they said, those principles supported preserving the finality of the paternity judgment. And the panel was not persuaded, on policy grounds, that Kameron should be able to know who his real biological father is. The justices reasoned that it was not their job “to determine whether the Legislature’s policy choices [re the UPA] were right or wrong.” Accordingly, the panel issued a writ of mandate directing the trial court to vacate its order for genetic testing.