Marriage of Sellers CA2/6 ( 2021 )

Filed 3/25/21 Marriage of Sellers CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of JENNIFER 2d Civil No. B306844
and MAJOR SELLERS. (Super. Ct. No. D381067)
(Ventura County)
JENNIFER H. SELLERS,
Respondent,
v.
MAJOR E. SELLERS,
Appellant.
Major E. Sellers (husband) appeals from a judgment
dividing the community estate and awarding spousal support to
Jennifer H. Sellers (wife). The trial court initially ruled that it
lacked personal jurisdiction over husband, who resided in
Virginia. In addition, it ruled that it lacked subject matter
jurisdiction with respect to custody of the parties’ minor children,
who also resided in Virginia.1 Husband subsequently moved to
strike portions of wife’s petition as to which there was a lack of
personal or subject matter jurisdiction. The trial court ruled that
the motion to strike constituted a general appearance conferring
jurisdiction over husband’s person. Husband contends, and we
agree, that the trial court erred. Accordingly, we reverse.
Factual and Procedural Background
The parties married in 1999 and separated in 2016. They
have three children.
In January 2017 husband filed for divorce in Virginia. Two
months later, in Ventura County Superior Court (hereafter court
or trial court), wife, who resides in California, filed a petition to
dissolve the marriage. She requested, inter alia, custody of the
children, spousal support, a determination of the parties’ rights
in community and quasi-community property, and attorney fees
and costs.
Husband filed a motion to “quash service of summons [and]
petition.” (Bold and capitalization omitted.) He argued that the
trial court lacked personal jurisdiction over him because “he is
not a resident of California and has had only minimal contact
with the State . . . since moving out of California over 5 years
ago.” Husband also argued that the trial court “does not meet the
1 “The lack of subject matter jurisdiction is a jurisdictional
defect of the fundamental type. A trial court lacks jurisdiction in
the fundamental sense where there is ‘an entire absence of power
to hear or determine the case.’ [Citation.] ‘[P]ersonal jurisdiction
relates to the power to bind a particular party, and depends on
the party’s presence, contacts, or other conduct within the forum
state.’” (Shisler v. Sanfer Sports Cars, Inc. (2008) 167
Cal.App.4th 1, 6-7.)
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jurisdictional requirements to make child custody
determinations” under the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA). (Fam. Code, § 3400 et seq.)
The trial court found that husband and the three children
reside in Virginia. The court concluded that it lacked (1) personal
jurisdiction over husband and (2) UCCJEA jurisdiction with
respect to custody of the minor children. The court did not
mention subject matter jurisdiction. But “‘“[i]t is well settled in
California that the UCCJEA is the exclusive method of
determining subject matter jurisdiction in custody disputes
involving other jurisdictions.”’” (In re Marriage of Kent (2019) 35
Cal.App.5th 487, 493; accord, In re Stephanie M. (1994) 7 Cal.4th
295, 310.) Custody determinations under the UCCJEA do not
require personal jurisdiction. (Fam. Code, § 3421, subd. (c)
[“personal jurisdiction over[] a party or a child is not necessary or
sufficient to make a child custody determination”].)
The court granted husband’s motion to quash service of
process as to those portions of wife’s petition requiring personal
jurisdiction over husband or UCCJEA subject matter
jurisdiction.2 “‘[T]he effect of granting a motion to quash service
is to declare the service void and not to dismiss the
complaint. . . .’” (Nelson v. Horvath (1970) 4 Cal.App.3d 1, 4.)
2 The court’s verbatim ruling was as follows: “This court
does not have in personam (‘personal’) jurisdiction over [husband]
and, as to this aspect of jurisdiction, the Motion to Quash is
granted. [¶] . . . This court does not have UCCJEA jurisdiction
and, as to this aspect of jurisdiction, the Motion to Quash is
granted.” The court stated, “[T]here is no question that Virginia
is the children’s ‘home state’ and that the Commonwealth of
Virginia has exclusive UCCJEA jurisdiction.”
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The trial court determined that it had “in rem jurisdiction
to adjudicate the status of the marriage under the doctrine of
divisible divorce[] and, at least hypothetically, in rem jurisdiction
over the real property . . . and . . . any personal property” in
California. The parties owned residential real property in San
Bernardino County.
Husband filed a motion to strike from wife’s petition her
requests for child custody, child support, spousal support,
attorney fees and costs, and the division of the parties’
community property interest in husband’s military retirement
benefits. Husband argued that, in view of the court’s ruling that
it lacked personal and UCCJEA jurisdiction, these requests “are
no longer properly before the court.” After a hearing the trial
court ruled that husband’s “request for affirmative relief[]
constitutes a general appearance” conferring jurisdiction over his
person, even though at the hearing husband had withdrawn his
motion to strike. The court stated, “The general appearance was
made by the filing of the motion . . . .”
In husband’s Virginia action, wife was in default because
she had not filed a pleading in response to husband’s complaint
for divorce. In February 2018 the Virginia court granted
husband “sole legal and physical custody of the minor children of
the marriage.” In April 2018 it granted him “a final decree of
divorce” from wife. The Virginia court made no order as to
spousal support or division of the parties’ property.
As to the Ventura County action, on January 23, 2020, a
trial was conducted on wife’s petition for dissolution. The court
issued a written ruling dividing the community estate, including
husband’s military retirement benefits. It ordered husband to
pay spousal support of $750 per month.
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Absence of Formal Judgment
No formal judgment was filed. In its written ruling after
the trial, the court stated, “The substantive provisions of this
Ruling shall be incorporated into a Judgment to be prepared by
[wife’s counsel] and approved by [husband’s counsel].” But there
is no judgment in the record on appeal, and the register of actions
does not mention a judgment. In the interest of judicial economy,
we consider the court’s ruling to be a final appealable judgment.
(See Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571.)
There is no reason to delay the appeal by requiring the parties to
obtain the omitted judgment. The issues have been fully briefed.
Neither party contests the appealability of the trial court’s ruling.
Both parties refer to the ruling as a “judgment.” A formal
judgment would merely incorporate the substantive provisions of
the ruling.
No Waiver of Right to Appeal
Wife claims that husband waived his right to appeal from
the judgment because he failed to file an appeal from the trial
court’s interlocutory ruling that he had made a general
appearance conferring jurisdiction over his person. Wife’s claim
is forfeited. Wife cites no authority granting the right to appeal
from such a ruling. “‘“When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as [forfeited].”’” (Lee v.
Kim (2019) 41 Cal.App.5th 705, 721.)
General Appearance
“‘A general appearance occurs when the defendant takes
part in the action or in some manner recognizes the authority of
the court to proceed.’ [Citation.] Such participation operates as
consent to the court's exercise of jurisdiction in the
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proceeding. . . . By generally appearing, a defendant relinquishes
all objections based on lack of personal jurisdiction or defective
process or service of process.” (In re Marriage of Obrecht (2016)
245 Cal.App.4th 1, 7-8.) With few exceptions, “a party who seeks
relief on any basis other than a motion to quash for lack of
personal jurisdiction will be deemed to have made a general
appearance . . . .” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th
32, 52.)
Husband Did Not Make a General Appearance
Husband claims that the trial court erroneously construed
his motion to strike as a general appearance conferring
jurisdiction over his person. “A defendant appears in an action
when the defendant . . . files a notice of motion to strike . . . .”
(Code Civ. Proc., § 1014.)3 Such an appearance is usually deemed
to be a general appearance. (Air Machine Com SRL v. Superior
Court (2010) 186 Cal.App.4th 414, 425 (Air Machine).) But the
filing of a motion to strike does not constitute an appearance if
the defendant simultaneously makes or, as here, previously made
a motion “[t]o quash service of summons on the ground of lack of
jurisdiction of the court over him or her.” (§ 418.10, subds. (a)(1),
(e)(1); Air Machine, supra, at p. 426.)
Husband’s motion to quash was based on two grounds: (1)
the trial court lacked jurisdiction over his person, and (2) the trial
court lacked subject matter jurisdiction with respect to custody of
the children under the UCCJEA. The motion to quash service of
summons on the second ground was improper. “A motion to
quash service of summons lies on the ground that the court lacks
3 Unless otherwise stated, all further statutory references
are to the Code of Civil Procedure.
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personal, not subject matter, jurisdiction over the moving party.”
(Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028,
1036.) If a court lacks subject matter jurisdiction, the defendant
may move to dismiss the action. (Goodwine v. Superior Court of
Los Angeles County (1965) 63 Cal.2d 481, 484 (Goodwine) [on its
own motion, court must dismiss action if there is no subject
matter jurisdiction].) The defendant may also challenge subject
matter jurisdiction by making a motion to strike, a motion for
judgment on the pleadings, or a motion for summary judgment.
(Greener, supra, at p. 1036)
Husband’s challenge of subject matter jurisdiction under
the UCCJEA did not constitute a general appearance. Where, as
here, a defendant challenges the court’s personal and subject
matter jurisdiction, the challenge to the subject matter
jurisdiction is not deemed to constitute a general appearance.
(Goodwine, supra, 63 Cal.2d at pp. 484-485.) “[A] challenge to
the subject-matter jurisdiction of the court is not inconsistent
with a challenge to personal jurisdiction. Moreover, since the
court must dismiss on its own motion [for lack of subject matter
jurisdiction], an appropriate challenge to subject-matter
jurisdiction aids the court in performing its duty. The defendant
should therefore be allowed to point out lack of subject-matter
jurisdiction without making a general appearance.” (Id. at
p. 484; see Loftin v. Superior Court (1971) 19 Cal.App.3d 577, 580
[“in Goodwine . . . the Supreme Court held that a challenge to
the subject matter jurisdiction of the court, coupled with a
challenge to its jurisdiction over the person of the defendant, does
not constitute a general appearance”].)
The challenge to subject matter jurisdiction did not
constitute a general appearance under section 418.10, subdivision
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(e) because it accompanied a valid motion to quash service of
summons for lack of personal jurisdiction. “If . . . a party files a
motion [to quash service of summons for lack of personal
jurisdiction] before or simultaneously with an act that would
otherwise constitute a general appearance, under subdivision (e)
of section 418.10 that party will not be deemed to have ‘generally
appeared’ in the action, but instead will be deemed to have
‘specially appeared’ and not waived the party's jurisdictional
challenge.” (Air Machine, supra, 186 Cal.App.4th at p. 426; see
also Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345
[“Nothing could be clearer: a defendant may move to quash
coupled with any other action without being deemed to have
submitted to the court's jurisdiction”].)
After the trial court had granted the motion to quash,
husband moved to strike those portions of the petition as to
which there was a lack of personal jurisdiction or UCCJEA
subject matter jurisdiction. Because the trial court had
previously granted husband’s motion to quash service of
summons as to allegations requiring personal jurisdiction over
husband, the motion to strike the same allegations did not
constitute a general appearance. (§ 418.10, subds. (a)(1), (e)(1);
Air Machine, supra, 186 Cal.App.4th at p. 426.) Furthermore,
the motion to strike should be viewed not independently but
rather as a continuation of the valid motion to quash for lack of
personal jurisdiction. The motion to strike merely effectuated the
trial court’s order granting the motion to quash as to allegations
for which there was no personal jurisdiction.
Because the court had previously ruled that it did not have
UCCJEA subject matter jurisdiction with respect to custody of
the children, the motion to strike the petition’s allegations
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requiring UCCJEA jurisdiction also did not constitute a general
appearance. The motion to strike was in effect a motion to
dismiss the allegations for lack of subject matter jurisdiction.
(See Goodwine, supra, 63 Cal.2d at p. 484 [“We disagree with
plaintiff . . . that a motion to dismiss for lack of subject-matter
jurisdiction is a general appearance”].
In addition, the motion to strike the allegations requiring
UCCJEA jurisdiction was not a general appearance because it
was preceded by husband’s valid motion to quash service of
summons for lack of personal jurisdiction. (§ 418.10, subd. (e);
Air Machine, supra, 186 Cal.App.4th at p. 426; ViaView, Inc. v.
Retzlaff (2016) 1 Cal.App.5th 198, 204 [“under section 418.10,
subdivision (e), a party who moves to quash [service of summons
for lack of personal jurisdiction] may—concurrently with or after
filing a motion to quash—participate in the litigation and ‘no act’
by the party constitutes an appearance unless and until the
proceedings on the motion to quash are finally decided adversely
to that party”].)
Trial Court’s Alleged Failure to
Recognize Virginia Judgment
For the guidance of the trial court on remand, we consider
husband’s argument that it failed to recognize the judgment
entered in the Virginia divorce proceeding. Husband claims that
“the Virginia Court issued a judgment that included spousal
support, distribution of assets and child custody.”
The trial court did not fail to recognize the Virginia court’s
judgment. That judgment awarded husband only a final decree
of divorce and custody of the minor children. The Virginia court
made no order concerning spousal support or distribution of
assets. In the present case the trial court made no order
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concerning child custody. It therefore did not interfere with the
implementation of the Virginia court’s judgment.
Disposition
The judgment (ruling after trial of January 23, 2020) is
reversed for lack of personal jurisdiction over husband. Husband
shall recover his costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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John R. Smiley, Judge
Superior Court County of Ventura
______________________________
Donald Aquinas Lancaster, Jr., for Appellant.
C. Bradford Law Firm and Caycie D. Bradford for
Respondent.
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