Thursday, March 24, 2016

Lots of Waivers in Divorce Court

Obrecht v. Obrecht, No. H040827 (D6 Feb. 24, 2016)

Husband in a divorce case objects to personal jurisdiction. His problem is that the record seems to establish that during his first appearance in the case he argued (pro se) the merits of a requested support order. He didn’t move to quash for lack of personal jurisdiction until several months later. But an argument on the merits was a general appearance—sufficient to waive any personal jurisdiction objection.

Husband contests what actually happened at the hearing, but none of the hearings in the case were reported due to the court’s policy of not providing an official reporter in most family law matters. (I.e., a policy like the kind of policy under review in Jameson v. Desta. The Court here drops a footnote to express that it is “deeply troubled” by that policy, but no party raised the issue on appeal.) In the absence of a record of oral proceedings, the trial court’s minute order suggesting the merits, not personal jurisdiction, were argued, was dispositive.

Husband also argues that it is unfair to hold him subject to the orders entered prior to the hearing in which he effectively waived any challenge to personal jurisdiction due to retroactivity concerns. But the court isn’t buying it. The cases he's analogizing to deal with service of process. While it might be unfairly retroactive to hold a party to account for actions that occurred prior to being validly served, the same rationale does not apply to actions that occurred before the time in which the party could be deemed to have waived personal jurisdiction. While service has a temporal element—the case doesn't start for a defendant until he is served—PJ doesn’t work that way. Essentially, personal jurisdiction is a yes/no issue that applies throughout the whole case; either there’s jurisdiction over the defendant or there isn’t.

Husband also waived any challenge to whether he had been afforded timely notice of a hearing. The record is pretty clear that he received less than the sixteen days’ notice of a motion required under Code of Civil Procedure § 1005(b). But to challenge a lack of statutory notice, a party generally needs to raise the issue at the earliest opportunity and demonstrate some prejudice. Here, Husband didn’t challenge the short notice. Indeed, at the first hearing he attended--several months after the motion was decided--he didn’t mention it at all.


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