E.N.W. v. Michael W.

[898]

Opinion

ABBE, J.

This is an appeal from an order denying appellant’s nonstatutory motion to vacate a default judgment on jurisdictional grounds pursuant to the rule set forth in

County of Ventura

v.

Tillett

(1982) 133 Cal.App.3d 105, 110-111 [183 Cal.Rptr. 741], We affirm.

Appellant was the defendant below in an action for paternity, child support and welfare reimbursement. Appellant never answered or otherwise appeared after personal service upon him on January 16, 1980 of the summons and complaint and notice of right to appointed counsel. His default was entered on March 12, 1980. After default hearing by a commissioner of the Ventura County Superior Court a judgment of paternity and order of child support was signed by the commissioner in April 1980. The order appointing the commissioner, which also appointed him as a temporary judge, empowered him to do everything set out in former Code of Civil Procedure section 259a.

1

To the extent pertinent here those provisions are now found in section 259 (as amended by Statutes 1980, chapter 229, sections 1 and 2 designating powers and duties of commissioners and are so referred to hereafter).

Appellant contends that; (1) hearing and determining the default judgment of paternity and child support is not a subordinate judicial duty within the meaning of the California Constitution, article VI, section 22 and, therefore, requires a determination by a judge; (2) in order to act as a temporary judge, the written stipulation of both parties is required; and (3) since appellant never appeared and there is no written stipulation of respondent, the judgment is void due to lack of jurisdiction.

Article VI, section 22 of the California Constitution states: “The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.” Section 259 assigns all commissioners certain duties and powers subject to court supervision. That section in pertinent parts gives commissioners the power to: “(5) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, ... (7) Hear . . . and determine all uncontested actions and proceedings other than actions for divorce, maintenance, or