BENKE, J. I respectfully dissent.
I
At the outset I think it is helpful to consider more fully the very difficult circumstances confronting Ubolratana Mahidol, formerly Julie Jensen (Julie), and Peter L. Jensen (Peter) at the time they reached the agreements set forth in the marital settlement agreement (MSA). Shortly after the MSA was incorporated into the judgment, their son Poomi was evaluated at the H.E.L.P. Group/UCLA Neuropsychology Program. At the time of the evaluation, Poomi “[had] significant deficits in executive abilities. This means that in his everyday life he has little ability to independently monitor, self-evaluate, entertain and process information (both cognitively and socially), or to inhibit inappropriate thoughts and behaviors. This leaves him helplessly vulnerable in certain situations, and explains why he acts impulsively and inappropriately many times.”
The evaluators expressed concern that Poomi’s behaviors “could lead to criminal investigations which would be tragically unfortunate. Poomi has already experienced several situations that potentially could have gotten out [599]of hand (e.g., his recent incident on the roller coaster [when he lunged at another person], the instance at 7-11 [when he began yelling at someone], and the public restroom experience [when he approached another man while he was using the facilities]).”)
At that time the evaluators reported “[b]oth parents related the desire to try anything in order to help Poomi and both related the importance of the other parent in Poomi’s life.” Although the evaluators identified Julie as Poomi’s primary caregiver, they noted that Peter “sees Poomi 3-4 times/week for approximately 2 hours, and one weekend a month. By all reports, he has been instrumental in teaching Poomi how to surf, swim, play soccer and play tennis.”
The evaluators found “Poomi’s long-term prognosis is bleak insofar as he will never reach independence in life’s major activities. For this reason he will always need constant and familiar support systems to ensure his psychological wellbeing and safety, as well as for those who may encounter this young man. The basic defects found in individuals with Autism are pervasive and persistent.” The evaluators stated that “with respect to Poomi’s long-term prognosis, it is critically important to Poomi’s success that his parents put aside their differences and communicate regularly regarding Poomi’s progress and important treatment decisions to come. Each parent has and will continue to play an important role in his life. Poomi’s best chance for success depends on continuity and stability in his life. Ultimately, this means frequent interactions with both parents as well as his sisters.”
Because of the extensive resources available to Poomi in Thailand and because of the protection he would be afforded as a prince in the Thai royal family, the evaluators supported Julie’s decision to return to Thailand with Poomi. However, the evaluators stated: “We want to re-iterate the importance of Poomi’s father in Poomi’s life. Poomi has a developmentally important bond with his father which should be allowed to continue and grow. Mr. Jensen must be allowed appropriate and frequent visits to his son as set forth in the MSA for the purpose of ensuring the continued bonding.”
The terms of the MSA, by which Poomi was permitted to go to Thailand with his mother with the understanding she would take steps to preserve Poomi’s bond with his father, reflect an obvious attempt by both Julie and Peter to provide Poomi with what the expert evaluators found was in Poomi’s long-term best interest: the extensive support and protection of the Thai royal family and an ongoing relationship with his father. Given the serious, conflicting and painful interests involved here and the obvious attempt of both parents to do what was in their son’s best interest, any consideration of the parents’ resolution of their differences should begin with a presumption [600]of its validity. Such a presumption of validity is of course suggested not only by the unique and difficult circumstances which gave rise to the MSA, but also by our obligation to interpret any agreement so that it is lawful and valid. (Civ. Code, § 1643; City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1490 [55 Cal.Rptr.2d 422].)
II
A. Effective Aims
My colleagues have found those provisions of the MSA which impose upon Julie affirmative duties with respect to providing visitation assistance to Poomi and information about his circumstances to Peter are “effectively aimed at controlling Poomi’s conduct.” (Maj. opn., ante, at p. 594, italics added.) Because they believe the obligations imposed on Julie are “effectively aimed” at controlling Poomi, the majority concludes those duties are beyond the subject matter jurisdiction of a court sitting in a dissolution action. (Maj. opn., ante, at p. 594.)
I have not found any reported case which speaks in terms of the “effective aims” of a contract or MSA. Rather, the operative language in cases too numerous to list here in their entirety focuses on the paramount role the intent of the parties plays in interpreting and enforcing contracts in general and marital settlement agreements in particular. (See e.g. Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [10 Cal.Rptr.2d 538, 833 P.2d 545]; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955 [135 Cal.Rptr.2d 505]; Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th 1334, 1341 [83 Cal.Rptr.2d 340]; Porreco v. Red Top RV Center (1989) 216 Cal.App.3d 113, 119 [264 Cal.Rptr. 609]; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439-1440 [64 Cal.Rptr.2d 766] [marital settlement agreements]; Civ. Code, § 1636; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 684, p. 617.) Thus, it is difficult to see any meaningful distinction between the “effective aims” of an agreement and the mutual intent of the contracting parties. Because the majority faults the MSA for its aims and because those aims cannot be distinguished from the intention of the parties, the parties’ intent is in fact at the heart of this appeal.
B. Julie and Peter’s Aims
There is nothing on the face of the MSA or in any other part of the record which supports the majority’s conclusion as to the aims or intent of the MSA. The MSA simply requires that Julie provide Poomi with assistance in visiting Peter and that in addition she provide Peter with information about Poomi’s [601]condition. It is plain that given Poomi’s condition, the beneficial bond Poomi enjoyed with his father could not be maintained unless Poomi stayed in this country or Julie agreed to provide Poomi with assistance in visiting his father and also provide Peter with information about Poomi’s condition. In characterizing his parents’ attempt to provide Poomi both with the benefits available in Thailand and a continuing relationship with Peter as “aiming” to control Poomi, the majority has chosen the harshest possible interpretation of the parties’ agreement when in fact a far more benign interpretation is possible.
In this regard the majority’s reference to Dittrich v. Gobey (1898) 119 Cal. 599 [51 P. 962] (Dittrich) is, as the majority notes, instructive. (Maj. opn., ante, at p. 595, fn. 5.) In Dittrich the disputed marital agreement provided that when their minor daughter reached her majority, the father would “ ‘return her to her mother.’ ” (Dittrich, supra, 119 Cal. at p. 600.) The agreement further provided that if the father failed to meet his obligations, he would pay the mother $1,000 in liquidated damages. When the daughter turned 18, she refused to return to her mother. The father then died and the mother made a claim against his estate. The trial court rejected the claim and its judgment was affirmed on appeal. The Supreme Court affirmed for alternative reasons. First, the court stated: “In the particular of the contract which gives rise to this dispute, viz; that concerning the restoration of [the daughter] to the plaintiff when the former should reach the age of eighteen years, we doubt whether more is reasonably imported by the instrument than that the father would then afford facilities to the daughter for return to her mother in case she desired to return.” (Id. at p. 601, italics added.) In interpreting the agreement so that it was lawful, the court in Dittrich was of course doing no more than is required by Civil Code section 1643, which states: “A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.” The interpretative generosity which the court displayed in Dittrich and which is required by Civil Code section 1643 is of course absent from the majority opinion in this case. In light of the majority’s citation to Dittrich, the majority’s rigid interpretation of the MSA is curious because the requirement that the daughter be “returned to her mother” seems just as much, if not more, of an imposition on the daughter than any visitation requirements the MSA imposes on Poomi. If the court in Dittrich was willing to interpret the requirements in that agreement as being subject to the daughter’s desires, the majority should offer some reason why Julie and Peter’s MSA cannot be interpreted in a similar fashion. I see no reason why, as in Dittrich, the MSA cannot be interpreted as requiring visitation by Poomi until he reached his majority and thereafter requiring Julie to assist Poomi in visiting his father if Poomi desired to do so.
I recognize that as an alternative to its interpretation of the agreement, the court in Dittrich stated: “If, however, the contract is to be understood as an [602]unconditional agreement on the part of [the father] to return [the daughter] at the age of eighteen years to the plaintiff, then it was to that extent void. For at that age the daughter attained her majority; her right of freedom from personal restraint was then as perfect as it could ever become; and her mother’s right to her custody was at an end.” (Dittrich, supra, 119 Cal. at p. 601.) What the court said in Dittrich concerning an agreement requiring visitation is of course undeniable: in general, adult offspring cannot be required to visit their parents. The question we confront here of course is quite different from the alternative rationale adopted by the court in Dittrich. While the court in Dittrich considered whether an unconditional visitation requirement may be imposed on an adult, we are not required to confront that clearly settled issue. We are only asked to determine whether in fact such an agreement was made by Julie and Peter. Like the court in Dittrich and as required by Civil Code section 1643, I would find that no such agreement was made. Here, we have an agreement which, although it speaks of visitation with a parent and requires affirmative steps by one parent, is now presumptively subject to the Poomi’s consent and therefore valid.1 (Dittrich, supra, 119 Cal. at p. 601.)
In sum, I think the record here shows that following Poomi’s 18th birthday, the parties’ intent was to control only their own conduct, not Poomi’s, and that intent kept their agreement within the subject matter jurisdiction of the court.
in
The majority’s unwillingness to interpret the MSA so that it is valid and enforceable will in the end only injure the interests of disabled adults without providing them any additional protection. At this point any interested person who believes the rights of a disabled adult are being infringed upon and that the disabled adult is unable to assert those rights for himself may bring a conservatorship petition under the provisions of Probate Code section 1800 et seq. and employ the power of the probate court to protect the disabled adult’s [603]interests. Given the protection available under the Probate Code, any agreement between estranged parents which allocates the responsibility for assisting a severely disabled adult offspring in getting to and from each parent’s home, college or work, represents no material intrusion on the adult offspring’s interests.
On the other hand, agreements such as the one Julie and Peter entered into offer important benefits to dependent adult offspring. Here, Julie’s promises to Peter provided Peter the obvious assurance he needed in order to consent to Julie’s desire to take Poomi to Thailand. It is not difficult to imagine that there are countless other disabled children who would benefit substantially from the willingness of their separating parents to make binding provisions for their care, not only during their minority but also when they become adults. In this regard I think it is helpful to consider the rationale of out-of-state cases which have upheld orders requiring former spouses to pay for their adult offspring’s college education when, in the absence of divorce, the parent was likely to provide a college education. “In allowing for divorce, the state undertakes to protect its victims. ... ‘A number of courts adopt the policy that a child should not suffer because his parents are divorced. The child of divorced parents should be in no worse position than a child from an unbroken home whose parents could be expected to supply a college education. . . HQ . . . HQ Where the disability is internally or externally caused, the child whose parents are still married will most often continue to receive support after majority. To terminate support when the parents are divorced creates a special disadvantage not shared by children whose parents remain together. If the father could have been expected to provide advanced education for his child, it is not unfair to expect him to do so after he has been divorced.” (Childers v. Childers (1978) 89 Wn.2d 592 [575 P.2d 201, 207-208].) Disabled adult offspring are in many respects in the same position as adult offspring who need a college education. When a marriage remains intact, disabled children have the benefit of their parents’ ongoing voluntary agreements as to the means and mode of their care and support, which benefit will likely continue into their adulthood. There is no good reason to deprive disabled children whose parents are dissolving their marriage of the functional equivalent of the ongoing mutual support they would otherwise receive after they become adults: binding agreements as to the assistance each parent will provide the disabled offspring and perhaps more importantly, binding agreements as to the assistance each parent will provide the other.
IV
I note Poomi has not appeared in this action himself and no one has been authorized to appear on his behalf. This incontrovertible fact undermines two issues relied upon by the majority: the court’s lack of personal jurisdiction [604]over Poomi (maj. opn., ante, at pp. 592-593) and Poomi’s supposed interest in preventing his mother from disclosing his activities to his father (maj. opn., ante, at p. 594).
With respect to personal jurisdiction, it is axiomatic that defects in personal jurisdiction may be waived by way of appearing and contesting the merits of an action. (Code Civ. Proc., § 410.50, subd. (a); Brown v. Douglas Aircraft Co. (1958) 166 Cal.App.2d 232, 236 [333 P.2d 59].) In a civil proceeding, appearance may occur when an attorney, who has been authorized to act on behalf of a litigant, contests the merits of the action. (Code Civ. Proc., § 1014.) In the case of a minor or incompetent, a guardian may appear on behalf of his or her ward or authorize such an appearance. (2 Witkin, Cal. Procedure, Jurisdiction, § 187, p. 750.) In California a party may also appear specially to contest in personam jurisdiction. (See Wolfe v. Alexandria (1990) 217 Cal.App.3d 541, 549-550 [265 Cal.Rptr. 881].)
Here, of course, neither Poomi nor anyone purporting to act on his behalf has appeared either generally or specially to contest personal jurisdiction. In light of these circumstances, I must disagree with the majority’s contention that the question of personal jurisdiction over Poomi is properly before us. While I certainly agree a judgment or order which is not supported by personal jurisdiction is void and subject to collateral attack, here the record simply does not permit us to determine whether, as against Poomi, the order is void. We can discuss and eliminate all means of exercising personal jurisdiction over Poomi, save one\\ jurisdiction by way of Poomi’s consent. The only way of eliminating, that means of exercising personal jurisdiction over him is to hear from him or his authorized representative either by special or general appearance. Without some appearance on Poomi’s behalf, we have no means of determining whether he is inclined, as is his right, to confer jurisdiction on the courts of this state by way of consent.
Although Poomi is severely disabled and would probably appear by way of a representative, this unfortunate circumstance should not cause us to presume we know his wishes. Because it is possible Poomi is willing to consent to jurisdiction and thereby render the trial court’s order valid even as to him, this record simply does not permit us to resolve the question of whether the court has personal jurisdiction over him. In this regard the majority seems to have failed to fully appreciate the distinction between personal jurisdiction which may be waived and subject matter jurisdiction which cannot. (See Marlow v. Campbell (1992) 7 Cal.App.4th 921, 929 [9 Cal.Rptr.2d 516].)
The absence of anyone authorized to act on Poomi’s behalf in these proceedings also impacts the majority’s concern about disclosure of personal information about Poomi. While interesting, until a court has determined Poomi’s wishes or at the very least determined who is empowered to act on [605]his behalf, the majority’s discussion of Poomi’s supposed interest in preventing his father from knowing about his health and activities is premature. It may well be that, notwithstanding the views of the majority, Poomi is entirely satisfied with the terms of the order.
Rather than relying on matters which Poomi has not yet himself raised, a better course might be to simply note the absence of anyone empowered to act in Poomi’s interest and state the self-evident proposition that because Poomi is not a party to these proceedings, our disposition is without prejudice to Poomi’s right to challenge enforcement of any order.
CONCLUSION
In the end I think my disagreement with the majority comes down to the level of freedom we will permit parties to exercise upon the dissolution of their marriages. I view marital settlement agreements as contracts which parties are free to enter and which we may not alter unless we are given some authority permitting us to do so. (See Civ. Code, § 1643.) My colleagues, on the other hand, seem to view a marital settlement agreement as something different because they believe some statutory provision must expressly authorize each of its terms. I think my view of marital settlement agreements is more consistent with the authorities which treat marital settlement agreements as agreements subject to the rules governing contracts in general. (See In re Marriage of Iberti, supra, 55 Cal.App.4th at pp. 1439-1440.)
Here, in the midst of an unfortunate dissolution action two parents agreed to do what was in the best interest of their severely disabled offspring. The agreement involved substantial compromise by both parents: one parent agreed to permit the child to leave the country; the other agreed to assist the child if he wished to return and to provide information as to the child’s continued well-being. There is no lawfiil reason this agreement should not be enforced. (See Dittrich, supra, 119 Cal. at p. 601; Civ. Code, § 1643.)
I would affirm the trial court’s order subject to any objection interposed by Poomi or someone authorized to act on his behalf.
Respondent’s petition for review by the Supreme Court was denied April 14, 2004.
In this regard In re Marriage of Casarotto (2000) 316 Ill.App.3d 567 [736 N.E.2d 1169, 1172-1174, 249 Ill.Dec. 731], and Kilby v. Kilby (Jan. 28, 1999) 1999 Tenn.App. LEXIS 57, are readily distinguishable. In re Marriage of Casarotto involved an order which required visitation by an adult offspring over his objection. Here of course we have no record which reflects Poomi’s desires. Kilby v. Kilby involved a custody order obtained after a disabled child had reached her majority. Here, in contrast, the MSA was entered into when Poomi was still a minor and subject to his parents’ control. Unlike the circumstances considered in Kilby v. Kilby, the question we are asked to decide is not whether he is still subject to that control, but whether Julie is still obligated to provide Poomi with the assistance he needs in the event he wishes to maintain his relationship with his father.