OfRoxie v. Harris

Opinion

CHRISTIAN, J. Roxie Harris (wife) appeals from an order denying her motion to set aside her default and a default judgment in this marital dissolution proceeding brought by Bemie E. Harris (husband).

Husband’s request for default, filed in January 1976, was accompanied by an affidavit stating that notice had been mailed to Stephen Redner, an attorney whom wife had consulted. Mr. Redner returned the documents to husband’s attorney, informing him that he had not been retained by wife but that he had advised her that her default would be taken. The returned documents were then sent by husband’s attorney to wife at her residence, but no affidavit was filed evidencing this second mailing.

[100]Wife contends that since husband failed to support his request to enter default with a declaration showing that a copy of the request had been mailed to wife, the resulting default judgments were invalid.

Code of Civil Procedure section 5871 requires that an application for entry of a default (Code Civ. Proc., § 585, subds. 1, 2; § 586, subd. 3) or of a judgment (Code Civ. Proc., § 585, subd. 3) be accompanied by an affidavit showing that a copy of the application has been mailed to the defendant’s attorney of record. If there is no attorney of record, the copy of the application must be mailed to the defendant at his last known address, and if no address is known, the affidavit must so state. The statute provides that no application for default judgment shall be heard, and no default entered, unless such an affidavit has been filed. It is provided, however, that the failure to receive notice will not invalidate the judgment. Civil Code section 4001 authorizes the Judicial Council to provide by rule for the practice and procedure in proceedings under the Family Law Act. Accordingly, it has been provided in rule 1206, California Rules of Court, that requirements governing civil actions generally apply to proceedings pursuant to the Family Law Act. Thus, rule 1240, California Rules of Court,2 applies to marital causes in requiring that an address must be given in every case before a default may be taken.

In the present case, the affidavit of mailing states that a copy of the request for default was sent to Mr. Redner. There was evidence that he was an attorney whom wife had consulted, but no appearance had been made by the wife; hence, Redner was not wife’s attorney of record. Although there is evidence that a copy of the application was then in fact