PR 06225.006 California
A. PR 79-009 Effect of Court Order Vacating Dissolution of Marriage, Samuel D. M~, DWE, Evelyn V. G~, Claimant
DATE: March 12, 1979
DIVORCE,--- IN GENERAL - CALIFORNIA
In order to secure relief from a California de- fault judgment, one must (1) plead facts showing mistake, inadvertence, surprise, or excusable neglect; (2) file a copy of the proposed answer; and (3) apply for such relief within a reasonable time, not exceeding six months. Failure to file a timely application is usually a jurisdictional defect; SSA will not recognize the court order decreeing relief, but rather will continue to give effect to the original judgment. (M~, SAMUEL D., G~, EVELYN V., CLAIMANT, RA IX (T~) TO MAMPC 3/12/79). DIVORCE -- IN GENERAL - CALIFORNIA
2. California courts often relax the requirements for relief from default judgments in dissolution of marriage cases. (M~, SAMUEL D., ~, G~, EVELYN V., CLAIMANT, RA IX (T~)TO MAMPC 3/12/79).
3. A court order vacating prior orders or decrees which were voidable (but not void) under applicable law, is binding on SSA for periods on or after, but not prior to, the date of rendition of the court order. (M~, SAMUEL D., ~ G~ EVELYN V., CLAIMANT, RAZZ (T~) TO MAMPC 3/12/79).
Evelyn and Samuel D. M~ were married on December 2, 1938. Their marriage ended with his death on November 12, 1966. Evelyn subsequently married James Gray on October 17, 1969. This marriage was annulled in February 1971. The couple re-married on October 17, 1972. An interlocutory judgment dissolving this marriage was entered on May 9, 1975, by the Orange County (California) Superior Court. The final decree of dissolution was filed on November 17, 1975. Evelyn was the petitioner in the divorce action; because James never appeared, the dissolution was a "default" judgment.
On January 12, 1976, Evelyn Gray filed an application for widow's benefits on the account of Samuel M~. By virtue of her 1975 divorce, she was considered "not married" and hence entitled to benefits on her late husband's account. She began receiving widow's benefits in March 1976.
On May 9, 1978, the Orange County Superior Court ordered that its prior dissolution of the marriage of Evelyn and James Gray be vacated and set aside and the case dismissed. This action was taken "upon stipulation of the parties"; the court's order does not discuss the factual or statutory basis for its action. In your first memorandum to us, you inquired as to whether Evelyn Gray was considered divorced between the time of the final judgment of dissolution and its subsequent vacation.
Your second memorandum described yet another court order bearing upon the status of the Gray marriage. On October 12, 1978, again acting "on stipulation of the parties," the Orange County Superior Court set aside its May 1978 dismissal, thereby reinstating the May 9, 1975, interlocutory decree and the November 17, 1975, final judgment dissolving the marriage of Evelyn and James Gray. You asked us whether, based upon the latest court order, Evelyn Gray should be considered divorced from the date of the original (1975) dissolution.
The first question we must consider is the validity of the two 1978 orders of the Orange County Superior Court. Because the original (1975) judgment of dissolution was granted upon the respondent's default, the applicable relief statute is section 473 of the California Code of Civil Procedure.1/ Section 473 provides for relief from the judgment if it was the result of mistake, inadvertence, surprise, or excusable neglect. The application for relief must be made within a reasonable time, in no case exceeding six months after the judgment was rendered, and it must be accompanied by a copy of the responsive pleading proposed to be filed.
On its face, the application for relief filed by James Gray appears deficient under section 473 in many respects. No proposed responsive pleading was filed. No facts indicating mistake, inadvertence, surprise, or excusable neglect are provided in his "application to dismiss"; rather, the facts given indicate that the couple simply changed their minds about getting divorced. Finally, the application requests relief from the interlocutory judgment of May 9, 1975. Because the application was filed on November 24, 1975, it was untimely under the six month maximum limit for filing a section 473 motion.
Failure to file the section 473 motion within the prescribed time period is considered a jurisdictional defect. Davies v. Superior Court of San Diego County, 228 Cal.App.2d 535, 39 Cal. Rptr. 693 (1964). In such a situation the court has no power to disturb the prior judgment, and any order granting the section 473 motion is void. Jones v. Alexander, 101 Cal.App.2d 44, 224 P.2d 870 (1950). Thus, were we to hold that the Orange County Superior Court exceeded its jurisdiction in rendering the May 1978 order because the motion was untimely,2/ SSA would not recognize that order and would give effect solely to the 1975 final decree of dissolution.
We hesitate to recommend such a course of action in this case, however. California courts are much more liberal when dealing with motions for relief from dissolutions, in light of the public policy favoring preservation of marriages. Only a slight showing of entitlement to relief is required to set aside a default dissolution. Rehfuss v. Rehfuss, 169 Cal. 86, 145 P.1020 (1915); Berset v. Berset, 126 Cal.App.2d 684, 272 P.2d 868 (1954); see also Sanchez v. Sanchez, 273 Cal.App.2d 159, 77 Cal. Rptr. 884 (1969). On the authority of these and similar cases, an appellate court reviewing the various rulings of the Orange County Superior Court in the Gray case might be willing to overlook the nonjurisdictional defects in the "application for relief" filed by James Gray. Moreover, in an effort to uphold the May 1978 ruling, an appellate court might construe the "application for relief" as requesting relief from the final judgment, rather than from the interlocutory judgment (as stated in the "application")3/; such a construction would make the "application" timely under section 473. As long as the motion was timely filed, relief could be granted well after expiration of the six month period. Roseborough v. Campbell, 46 Cal.App.2d 257, 115 P.2d 839 (1941).
We obviously cannot definitively state what an appellate court would do if confronted with the Gray case. In light of the history of indecision in the Gray marriage, an appellate court might be disinclined to go to great lengths in order to preserve the marriage. On the other hand, as dis- cussed above, case law could be read to support a finding upholding the rulings of the Orange County Superior Court. Because of that possibility, we believe the more prudent course of action on SSA's part would be to give full force and effect to all of the orders issued in the Gray case.
The question remains as to what effect the orders of May 1978 and October 1978 have on Evelyn Gray entitlement to widow's benefits on the account of Samuel D. M~, the deceased wage earner. We cannot agree with the DO's conclusion that the claimant lost all entitlement to widow's benefits by virtue of the May 1978 decree. Numerous precedent opinions have held that a court order, vacating prior orders or decrees which were voidable (but not void) under applicable state law, is binding on SSA for periods on or after, but not prior to, the date of rendition of the order. GC opinions re Angelina G. S~, D-4391, November 10, 1960; Aron B. D-7171, April 24, 1962, and May 4, 1962. Thus, we have held that a California court order vacating a final divorce decree on grounds of extrinsic fraud, effectively restored the claimant to the status of the deceased wage earner's widow, effective with the month of the decree vacating the divorce. GC opinion re Louis W. S~, D-11349, May 17, 1966.
For your purposes, therefore, Evelyn Gray status should be determined as of the date of each of the court's orders. The final decree of dis- solution entered on November 17, 1975, effectively terminated her marriage. She was entitled to widow's benefits in early 1976, as you previously determined. The May 8, 1978, order vacating the dissolution returned her to the status of "re-married," and she was no longer entitled to widow's benefits as of that date. When the court vacated that (May 1978) order on October 12, 1978, the claimant once again became "not married" and re-entitled to widow's benefits.
1_/ Had the judgment been rendered after a trial on the merits, a new trial motion could have been made pursuant to section 657 of the Code of Civil Procedure. In addition, section 663 of that Code pro- vides for vacation of a judgment based upon findings of fact and conclusions of law, if the conclusions are erroneous or incorrect (either not consistent with or not supported by the findings).
2_/ The other defects of James Gray "application for relief" would not ordinarily be considered jurisdictional in nature. Absent an appeal by one of the parties alleging that the court abused its discretion in granting relief, the order would stand and SSA would accord it full effect. See, e.g., Elms v. Elms, 72 Cal.App.2d 508, 164 P.2d 936 (1946), for discussion of the inadequacy of mere change of mind under section 473 (order granting relief vacated as abuse of discretion).
3_/ This construction would be possible because the "application for relief" was signed by James Gray on November 5, when the only existing order was the May 9 interlocutory decree. (It was therefore signed within six months of that decree.) By the time it was actually filed, the final decree had been entered.