Rhoades v. Rhoades

Opinion

CROSBY, J. Wife obtained an interlocutory judgment of dissolution of marriage by default. Husband moved to set aside the judgment under Code of Civil Procedure section 473 based on his attorney’s failure to properly represent him and to change venue of the dissolution proceedings from Orange to Plumas County. The court denied the motion to set aside the default judgment and determined the motion to change venue was thus moot.

I

Marydarlene Rhoades left her husband, Edwin James Rhoades, Jr., on October 6, 1981. She moved with the couple’s then eight-year-old daughter from the family home in Plumas County to Orange County. On November 4, 1981, after a noticed hearing in Orange County attended by both parties without counsel, the court ordered husband not to contact his wife or daughter for 90 days and to pay temporary child support of $150 per month.

[171]On November 30, 1981, wife filed a petition for legal separation. The summons and petition were personally served on husband on December 11, 1981. He retained an attorney on December 17, 1981, but did not respond to the petition. On January 12, 1982, after wife met the three-month residency requirement (Code Civ. Proc., § 395, subd. (a)), she amended the petition to seek dissolution of the marriage. A copy of the amended petition was simply mailed to husband; wife conceded there was no attempt at personal service.1

Wife’s attorney mailed husband a request to enter default on January 20, 1982, but did not file the request until February 24, 1982. The interlocutory judgment of dissolution of marriage was filed March 17, 1982, after a default hearing. It provided for continuation of restraining orders against the husband, sale of the family residence, and spousal and child support. The interlocutory judgment also contained the following provision: “Respondent is to have no visitation with the minor child until such time as he seeks and completes counseling regarding physical and mental abuse. The court shall retain jurisdiction of this matter.” Husband was personally served with the interlocutory judgment.

He retained present counsel, who moved to set aside the default judgment under Code of Civil Procedure section 473 and change venue of the case from Orange to Plumas County. In a written declaration in support of the motions, husband stated he was unable to contact wife after she moved to Orange County, but retained a Plumas County attorney on December 17, 1981, who assured him everything was taken care of and “there was nothing [husband] should do in relation to these proceedings.” The declaration added the attorney subsequently admitted his failure to do anything on husband’s behalf.