Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HF 04-177112
Richman, J.
In this marital dissolution proceeding, petitioner Joseph Morcoso appeals from an order denying his petition for an annulment of his marriage to respondent Julita Morcoso. He contends that the trial court lacked jurisdiction to enter the order because judgment had already been entered on a prior order granting his petition. He also challenges the trial court’s order to the extent it requires him to pay Julita’s attorney’s fees in the amount of $5,000. Finding no error, we affirm.
To avoid confusion and with respect, we refer to the parties by their first names.
I. Background
Because the facts leading up to the petition for annulment are not germane to resolution of the issues raised on appeal, we summarize them very briefly. In March 2002, Joseph, a 27-year-old United States citizen, traveled to the Philippines, where he met 25-year-old Julita. Within weeks, they were married in the Philippines in a civil ceremony, with the understanding that a church wedding would later would later follow in either the Philippines or the United States. After the ceremony, Joseph returned to the United States and applied for a visa on Julita’s behalf.
After the visa was issued on April 15, 2004, Joseph and his mother sent Julita a plane ticket to San Francisco, where she arrived on July 24, 2004. For the first month after her arrival in the United States, Julita lived with Joseph and his mother at his mother’s home. On August 26, 2004, Julita left Joseph to visit friends and never returned.
On September 27, 2004, Joseph filed a petition for an annulment alleging fraud on Julita’s part.
The petition itself is not in the record.
On March 7, 2007, the matter proceeded to trial before the Honorable Yolanda Northridge. Following the conclusion of testimony, Judge Northridge tentatively concluded that there was no fraud. However, she afforded counsel the opportunity to submit a posttrial brief by Friday, March 23, 2007, at which time the matter would be submitted.
On Monday, March 26, 2007, Joseph filed a posttrial brief, while Julita did not do so. On April 2, 2007, Judge Northridge signed an order (the April 2 order) granting Joseph’s request for an annulment, reading in pertinent part as follows: “The Court issued a tentative decision finding there was no fraud and thus denying the Petitioner’s request for an annulment. The court gave counsel the opportunity to brief the issue of fraud as it related to an arranged marriage. The court took the matter under submission on March 23, 2007. The court has reviewed the evidence, considered counsel’s arguments and finds there is sufficient evidence to grant an annulment pursuant to Family Code [section] 2110(d). The Petitioner’s request for annulment is granted. Each party is to bear his/her own attorney’s fees and costs.”
Joseph claims to have filed the brief “at about 3:30 p.m.” on the afternoon of Friday, March 23. However, the brief was not in fact filed with the court until March 26, 2007.
On April 4, 2007, counsel for Julita sent a letter via facsimile to Judge Northridge, with a copy to Joseph’s counsel, explaining that he had just received a copy of the April 2 order and was “shocked,” since the judge had stated at the conclusion of the trial that Joseph had not met his burden of proof. Counsel also noted that while the court had apparently received Joseph’s posttrial brief when it was filed, he had just received a copy of it, without a proof of service, that day. Had he timely received the brief, he claimed, he would have objected to it and requested a statement of decision. He concluded by arguing that Julita was “greatly prejudiced” by the brief and the inability to timely respond to it, and requested that the court set a hearing for reargument of the matter.
The following day, counsel for Joseph faxed a responsive letter to the court and Julita’s counsel, objecting to as Julita’s “communication” with Judge Northridge and disputing the substantive issues raised in her letter.
Throughout his opening brief, Joseph makes repeated reference to counsel for Julita’s purported ex parte communication with Judge Northridge. An ex parte communication is “ ‘[o]n one side only; by or for one party; done for, in behalf of, or on the application of, one party only.’ ” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 56, fn. 1, quoting Black’s Law Dict. (5th ed. 1979) p. 517.) The April 4, 2007 letter was faxed to Joseph’s counsel at the same time it was faxed to Judge Northridge. It was not, therefore, an ex parte communication, and we see nothing improper with counsel’s letter objecting to Joseph’s late-filed brief and requesting rehearing.
By minute order dated April 9, 2007, Judge Northridge, on her own motion, set a hearing for April 13, 2007 on Julita’s objections to the April 2 order, abating the order pending further hearing.
After a continuance, the matter came on before Judge Northridge on April 27, 2007. Joseph objected to the entire proceeding, claiming that it was improper to re-open the case since judgment had already been entered. Judge Northridge responded, “A judgment has not been entered.” At the conclusion of the hearing, the judge announced that a “new decision” would be made, “re-evaluating the evidence already submitted in this case,” and she took the matter under submission.
On May 29, 2007, Judge Northridge vacated the April 2 order and entered a new one, this time denying Joseph’s request for an annulment. She explained that since the April 2 order, she had “reevaluated the evidence, reviewed the transcript, all the pleadings and case law on the subject of annulment and fraud” and had come to the conclusion that Julita had not perpetrated the fraud necessary for an annulment. She also ordered each party to bear his or her own attorney’s fees and costs, exclusive of a previous award of fees to Julita, and instructed Julita to prepare a judgment consistent with the terms of the order. Notice of entry of the order was filed on June 4, 2007.
On July 26, 2006, Joseph filed a notice of appeal from the order.
Julita does not contest the appealability of the order, and we treat the appeal as properly before us. (See Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520.)
II. Discussion
A. The Court Had The Authority To Modify Its Order Of April 2, 2007 Because Judgment Had Not Yet Been Entered
The first issue in this appeal can be distilled down to one straight-forward question: whether judgment had been entered on Judge Northridge’s April 2 order granting Joseph’s request for an annulment. If so, as Joseph argues, the court lacked jurisdiction to reconsider the matter and could not issue a subsequent order denying the annulment. If not, as Julita argues, the court had the authority to reconsider its prior order and enter a contrary order denying the annulment. Despite Joseph’s repeated insistence to the contrary, the record is clear that there was no such judgment.
Both parties argue at length as to what constitutes a judgment and when entry of judgment occurs. We believe, however, that the issue can be resolved quite simply and without the need to reach their arguments. Judicial Council form FL-180 is a form of judgment to be used in cases involving marital dissolution, legal separation, or annulment. The use of this form is mandatory. (See Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 15:235, p. 15-53 [“In dissolution, legal separation and nullity actions, the judgment must be prepared on the FL-180 ‘Judgment (Family Law).’ ”].) Nowhere in the record, nor in Joseph’s briefs, is there any suggestion that Form FL-180 was signed by Judge Northridge, let alone entered by the clerk. As such, there can be no question that judgment granting Joseph’s petition for an annulment was not entered. This is consistent with the understanding of Judge Northridge, that as of the April 27, 2007 hearing judgment had not been entered.
California Rules of Court, rule 1.31(g) provides, “An otherwise legally sufficient court order for which there is a mandatory Judicial Council form is not invalid or unenforceable because the order is not prepared on a Judicial Council form or the correct Judicial Council form.” This exception is inapplicable here because at issue here is a judgment, not an order, and the April 2 order is not otherwise sufficient since it omits the mandatory notice set forth in Family Code section 2024, subdivision (b), as well as other pertinent information.
On our own motion and pursuant to Evidence Code section 452, we take judicial notice that Judge Northridge was an experienced judge who, not incidentally, was at the time the supervisory judge in the family law department. (See In re Anthony H. (2005) 129 Cal.App.4th 495, 502 [presiding judge of juvenile court].)
Family Code section 2024, subdivision (b) provides additional support for this conclusion. That section details a notice concerning potential consequences of the judgment that must be included in a judgment for dissolution of marriage, nullity of marriage, or legal separation. The record does not reflect any document containing the requisite notice such that it could be deemed a proper judgment.
Family Code section 2024, subdivision (b) provides: “A judgment for dissolution of marriage, for nullity of marriage, or for legal separation of the parties shall contain the following notice: [¶] ‘Dissolution or annulment of your marriage may automatically cancel your spouse’s rights under your will, trust, retirement benefit plan, power of attorney, pay on death bank account, transfer on death vehicle registration, survivorship rights to any property owned in joint tenancy, and any other similar thing. It does not automatically cancel your spouse's rights as beneficiary of your life insurance policy. If these are not the results that you want, you must change your will, trust, account agreement, or other similar document to reflect your actual wishes. [¶] Dissolution or annulment of your marriage may also automatically cancel your rights under your spouse’s will, trust, retirement benefit plan, power of attorney, pay on death bank account, transfer on death vehicle registration, survivorship rights to any property owned in joint tenancy, and any other similar thing. It does not automatically cancel your rights as beneficiary of your spouse’s life insurance policy. [¶] You should review these matters, as well as any credit cards, other credit accounts, insurance policies, retirement benefit plans, and credit reports to determine whether they should be changed or whether you should take any other actions in view of the dissolution or annulment of your marriage, or your legal separation.’ ”
In urging a contrary result, Joseph contends that the April 2 order constituted a judgment, which was entered upon the clerk’s filing of the same. In claimed support, he relies on Code of Civil Procedure section 664, which provides in pertinent part, “When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after rendition of the verdict . . . . If the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision. In no case is a judgment effectual for any purpose until entered.” According to Joseph, this means that “judgment was required to be entered on April 2, 2007, immediately upon the filing of the decision with the clerk. Nothing else remained to be done. The decision was final and the case was over with.” Joseph’s reliance on section 664 is misplaced.
First, as explained above, the family law rules mandate the use of Judicial Council form FL-180 for judgment in cases of annulment. Thus, the April 2 order by Judge Northridge could not constitute the judgment. The face of the document itself supports this conclusion, as the document is designated an “order” rather than a judgment.
But even if we were to assume arguendo that the April 2 order did somehow constitute a judgment, section 664 still does not help Joseph, because the purported judgment was never entered as such. As best as we can understand his argument, Joseph appears to theorize that the mere filing of Judge Northridge’s order constituted entry of judgment because section 664 directs the clerk to enter judgment immediately upon filing of the court’s decision. In so advocating, he seems to suggest that filing the decision and entering judgment are one and the same. Not so. Rather, section 664 requires the clerk to take the affirmative step of entering judgment, and there is no indication before us that the clerk did so here. While Code of Civil Procedure section 668 traditionally required all judgments to be entered in a judgment book, alternative methods for entering judgment are now authorized, including placement of the judgment in the case file and then making a microfilm copy of the individual judgment, entering the judgment in the register of actions, or entering the judgment in the court’s electronic data-processing system. (Code Civ. Proc., § 668.5.) None of these actions was taken in this case.
Finally, the fact that the clerk is directed by Code of Civil Procedure section 664 to enter judgment “immediately” is of no relevance because the time frames set forth in section 664 have been held to be directory only, such that “a valid judgment may be entered after expiration of the specified periods.” (7 Witkin, Cal. Procedure (4th ed. 1997), Judgment, § 56, p. 586, citing Hume v. Lindholm (1927) 85 Cal.App. 80, 84.)
In any event, because judgment on form FL-180 had not been entered, Judge Northridge was well within her authority to sua sponte grant further hearing on the petition, reconsider the issues, and issue an order reaching a contrary conclusion. (Wilson v. L.A. Employees Assn. (1954) 127 Cal.App.2d 285, 289 [“At any time before a judgment is entered the court may change its conclusions of law and enter a judgment different from that first announced, and a judge who had heard the evidence may at any time before entry of judgment amend or change his findings of fact.”]. See also 7 Witkin, Cal. Procedure, supra, § 51, p. 581 and cases cited therein.)
B. The Trial Court Did Not Abuse Its Discretion When It Ordered The Parties To Bear Their Own Attorney’s Fees With The Exception Of The Prior Award Of Fees To Julita
The second issue Joseph raises pertains to Judge Northridge’s order that each party bear his or her own attorney’s fees, “exclud[ing] the previous award of fees to” Julita. This is an apparent reference to an earlier order made by the Honorable Morris Jacobson at a July 25, 2006 hearing, that Joseph was to advance $5,000 to cover Julita’s attorney’s fees, subject to apportionment at the end of the case. Joseph now objects that this prior award did not take into consideration the parties’ relative ability to pay as required by Family Code section 2030, noting that the fee award was never memorialized in a court order or stipulation of the parties and instead arose out of an agreement between Julita’s counsel and Joseph’s prior counsel that the $5,000 was to be paid by Joseph’s mother in the form of a promissory note secured by a deed of trust on her house. Joseph argues that he has no ability to pay the fees as evidenced by his income and expense declaration and that, in fact, Julita makes more money than he does.
Family Code section 2030 provides in pertinent part: “(a) [¶] (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) Whether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.”
Joseph’s specific argument is that “the court made its order without taking any evidence on the parties [sic] respective ability to pay as required by Family Code section 2030.” The argument fails, for several reasons.
First, Judge Jacobson specifically stated to Joseph’s counsel when the award was being discussed, “What’s been represented to me in your presence, [counsel], is that your client currently has much greater ability to pay.” Joseph’s counsel simply responded, “All right.” If that was not in fact the case, counsel was obligated to object. His failure to do so indicates acquiescence in the court’s conclusion that Joseph did in fact have a greater ability to pay the fees.
Second, the fee award was based on an agreement between the parties. As Joseph rightfully notes, the arrangement involved a note secured by a deed of trust on Joseph’s mother’s house, and because his mother was not a party to the proceeding, she could not be ordered to pay the fee award. However, Julita’s counsel explained to the court while Joseph’s mother could not be ordered to pay the fees, “[T]hey have offered to do it,” although she needed time to arrange the financing. Judge Jacobson inquired of Joseph’s counsel whether that was acceptable, to which counsel simply responded, “Yes.” Again, acquiescence.
Finally, while there is no signed order to this effect, the minutes of the hearing clearly state, “The court orders attorney’s fees awarded [to Julita’s counsel] in the amount of $5,000 subject to reallocation and payable forthwith.”
In light of the foregoing, we find no abuse of discretion in Judge Jacobson’s order directing Joseph to advance attorney’s fees in the amount of $5,000 to Julita’s attorney. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829 [award of attorney’s fees is reviewed for abuse of discretion].) Likewise, we find no abuse of discretion in Judge Northridge’s order directing the parties to bear their own attorney’s fees and costs, with the exception of the prior fee award to Julita.
III. Disposition
The order denying Joseph’s petition for an annulment and ordering both parties to bear their own attorney’s fees with the exception of the prior $5,000 award of fees to Julita is affirmed.
We concur: Kline, P.J., Lambden, J.