Filed 2/11/14 Marriage of Ware CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re the Marriage of TAMMY L. and DANIEL
M. WARE.

TAMMY L. WARE,                                                                              F064420

         Appellant,                                                          (Super. Ct. No. VFL 193531)

                   v.
                                                                                         OPINION
DANIEL M. WARE,

         Respondent.


         APPEAL from a judgment of the Superior Court of Tulare County. Jennifer
Shirk, Judge.
         McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter for
Appellant.
         Allen Law Firm, David W. Allen for Respondent.
                                                        -ooOoo-
         Tammy L. Ware and Daniel M. Ware were married in 1989 and their marital
status was terminated in 2011. In this appeal, Tammy1 challenges the trial court’s ruling

         1Because the parties share a last name, we will refer to them by their first names
for clarity and convenience. No disrespect is intended.
that December 1, 2000, was the date of separation for community property purposes.
That date was specified as the date of separation in a stipulated judgment of dissolution
of marriage filed in 2002. Tammy contends the stipulated judgment is void because it
was not signed by the parties and, as a factual matter, the date of separation should be
much later because the parties were reconciled and living together for many years after
the stipulated judgment was filed. She asks this court to vacate the stipulated judgment
and to direct the trial court to conduct a new hearing to determine the date of separation.
       We affirm the court’s ruling and judgment.
                        FACTS AND PROCEDURAL HISTORY

2000 to 2009—petition for dissolution of marriage, settlement agreement, and
apparent reconciliation
       On December 4, 2000, Tammy filed a petition for dissolution of marriage. Under
“Statistical Facts,” she alleged the date of marriage was February 26, 1989, and the date
of separation was December 1, 2000.
       On December 15, 2000, the court ordered Tammy and Daniel to have joint legal
custody of their child, with Tammy to have primary physical custody. Tammy was to
remain in the home and was responsible for mortgage payments and utilities as of
December 1, 2000. Daniel was to pay Tammy $675 per month for child support and
$825 per month for spousal support. A notice to Daniel’s employer, the California
Department of Corrections, to withhold $1,500 per month for child and spousal support
was filed on January 31, 2001.
       On April 12, 2001, Daniel filed a response and request for dissolution of marriage.
He also alleged the date of separation was December 1, 2000.
       On October 11, 2001, the parties attended a mandatory settlement conference and
reached an agreement. Tammy, her attorney John Bianco, and Daniel’s attorney James
Wainwright appeared before the court to enter a stipulated judgment. Daniel was not




                                             2.
present, but Wainwright told the court his client had given him authorization to enter into
the agreement.
       Bianco told the court the parties had agreed to spousal support, a division of
property and a child custody arrangement, but they requested the court not rule on status.
Wainwright explained there was a possibility of reconciliation and the parties wanted to
get the property and support issues out of the way.
       The court warned the attorneys and Tammy:

       “Let me tell you some of the problems we have had so there is no
       misunderstanding. [¶] Once this judgment gets accepted and gets entered
       and the assumption is it’s going to get prepared and entered real quick after
       it’s recited. [¶] [I]f they reconcile, the judgment doesn’t go away. The
       judgment stands there.”
       Bianco then recited the terms of the parties’ agreement and stated that he would
prepare the judgment. He described custody and visitation, spousal support, and division
of property. He did not specify the date of separation. Upon questioning from the court,
Tammy agreed she had reached the agreement voluntarily. The court asked Tammy if
she understood that if the court accepted the agreement that day, she could not change her
mind later, and “this is going to be a full, final and complete agreement today.” Tammy
said yes. The court asked, “You are giving up your right to have a judge equally divide
your assets and debts. Do you understand that?” Tammy responded, “Right.”
       Wainwright told the court that he had discussed all the terms and conditions with
Daniel and he was aware of the ramifications. The court accepted the agreement reached
between the parties, finding it had been entered into knowingly, voluntarily, and with the
assistance of counsel.
       On January 15, 2002, Bianco submitted a “Judgment of Dissolution of Marriage”
and “Notice of Entry of Judgment” to the court for filing.
       On January 18, 2002, Bianco filed a declaration with the trial court. He stated
that, shortly after October 11, 2001, his office prepared a “Notice of Entry of Judgment”



                                             3.
and “Judgment of Dissolution of Marriage” that accurately reflected the terms of the
settlement read into the record. On December 7, 2001, Tammy told Bianco’s office that
she and Daniel had reconciled. On December 12, 2001, Bianco wrote a letter to Tammy
advising her that if she wished to set aside the judgment of dissolution of marriage, she
must file a motion requesting it. The letter further explained that signing the written
judgment was “simply a formality” and failure to sign it would not set aside the
stipulation she had already made in court. Bianco asked her to schedule an appointment
to discuss the status of her divorce. As of January 14, 2002, Tammy had not contacted
Bianco’s office.
       Also on January 18, 2002, Bianco filed a notice of withdrawal of attorney, giving
notice that he no longer would represent Tammy in the dissolution proceeding. On
January 22, 2002, Wainwright gave notice of his withdrawal as attorney for Daniel.
       It appears that a clerk at the superior court returned the “Judgment of Dissolution
of Marriage” on January 29, 2002, because the parties’ signatures were missing. On
February 13, 2002, however, the trial court signed the “Judgment of Dissolution of
Marriage,” and the judgment was filed with the court. The court sent notice of entry of
judgment to Tammy, care of Bianco, and to Daniel, care of Wainwright.
       The judgment consists of a two-page Judicial Council form, “Judgment (Family
Law),” followed by 11 pages of typed settlement terms.2 On the first page of the Judicial
Council form, in the section titled “Judgment,” boxes are checked for “Dissolution” and
“Reserving jurisdiction over termination of marital status.” The second page of the form
provides that the 11-page attachment “shall be merged and incorporated with the
Judgment of Dissolution of Marriage, Reserving Jurisdiction [O]ver Termination of
Marital Status.”


       2This  13-page document is what the parties and this court refer to as the
“stipulated judgment.”



                                             4.
       The 11-page attachment was signed by Bianco and Wainwright (before they gave
notice of withdrawal), but was not signed by Tammy or Daniel. The first page of the 11-
page attachment includes the statement, “The parties were married on February 26, 1989,
and separated on December 1, 2000, after eleven (11) years, ten (10) months of
marriage.” It further provides, “It is the parties[’] intent to enter into an agreement that is
a final and complete settlement of all their rights and obligations, including property
rights and property claims, … subject to the continuing jurisdiction of the Superior
Court.” Among other settlement terms, Daniel was to pay Tammy $825 per month for
spousal support.
       On July 12, 2004, a notice to Daniel’s employer terminating the withholding of
income for child and spousal support was filed with the court.

2010 to 2012—request for modification of spousal support and termination of marital
status
       The next activity in the case occurred in 2010. Tammy, through her new attorney
Mary Rafani-Steele, filed a request for modification of spousal support on November 23,
2010. In making the request, she referred to the spousal support previously ordered “as
part of the judgment of dissolution of marriage entered February 13, 2002.” She
continued, “This judgment affected all matters apart from termination of marriage,
jurisdiction of which was reserved to the court.” Tammy explained that the parties had
reconciled and continued to live together as husband and wife until February 2010. She
requested the court take judicial notice of the stipulated judgment. Tammy noted that,
according to section 11 of the stipulated judgment, “in the event of reconciliation all
orders remain in effect until modified or revoked by a subsequent court order.”3 Since no


       3Paragraph   11 of the stipulated judgment provides: “If the parties, at any time,
reconcile after the effective date of this agreement, this agreement, including all property
transfers made or agreed to be made, shall remain in effect until modified or revoked by a
subsequent court order signed by each party and specifying the fact of reconciliation.”



                                              5.
subsequent order was ever sought by either party, Tammy requested a determination of
spousal support arrearages.
         On December 3, 2010, the trial court ordered Daniel to pay rent for a one-bedroom
apartment for Tammy for December and January. Daniel was also ordered to pay
Tammy $800 per month. Daniel was given exclusive use of the residence on Ashland
Court.
         On the same day, Tammy filed an “Ex Parte Move-Out Order.” She sought an
order that Daniel move from the family home or pay her an amount sufficient to rent her
own residence. Tammy also sought payment from Daniel of “an amount sufficient to
cover her necessary expenses incurred during the time of the separation to date as per
agreement between the parties, later abrogated by [Daniel].”
         On December 29, 2010, Daniel filed a responsive declaration. He did not consent
to Tammy’s request that he move. In his declaration, Daniel stated that he and Tammy
separated on December 1, 2000. He stated that they signed a stipulated judgment in
February 2002. (The parties actually did not sign the agreement, but Tammy never
informed the court of this.) Daniel did not remember why they had the court reserve
jurisdiction on the termination of marital status. In the stipulated judgment, Tammy was
granted the family residence and associated debt. She did not make the payments and the
house was foreclosed on. Daniel bought another residence after the separation. He
“allowed Ms. Ware to move into [his] residence and at that time she terminated the wage
assignment” (referring to the order to his employer to withhold child/spousal support).
According to Daniel, Tammy moved out in December 2009 when her boyfriend showed
up at Daniel’s house. Between 2009 and November 24, 2010, Daniel would allow
Tammy to come to his residence to do laundry and eat, and he told her she could stay.
On November 24, 2010, Daniel caught Tammy in his house with her boyfriend, and
Daniel changed the locks so she could not come back into his house.




                                             6.
       In a declaration by Rafani-Steele filed on January 14, 2011, she declared that
Daniel reported that Tammy had “cleaned out” his house. He claimed that Tammy and
seven others brought a moving van to his house and removed everything except his
clothing. In contrast, Tammy maintained that on January 11, 2011, she only took her
clothes, personal items from the bathroom, her bed set, her daughter’s wedding pictures,
and one of three televisions in the house. Tammy said only two men helped her move,
although they were professional movers. Tammy later described her conduct of taking
items from the house as “the use of self-help measures, which I now regret.” On
January 14, 2011, the court ordered the parties to stay 100 yards from each other and
continued the matter. The court also ordered that Tammy was to keep the bedroom
furniture and Daniel was to make a list of items taken from his house to be returned by
Tammy by noon on January 15, 2011.
       On January 21, 2011, the court ordered Daniel to comply with the current order
for spousal support. Because Tammy had failed to comply with the court’s order to
return Daniel’s property by January 15, the court ordered Tammy to return Daniel’s
property by noon on January 22, 2011. If she failed to return the property by that day,
she was to be sanctioned $50 each day until the property was returned.
       On February 23, 2011, the court heard testimony from Tammy and Daniel on
Tammy’s request for a modification of spousal support. Following the testimony,
Rafani-Steele argued that Daniel should pay $2,500 per month in spousal support. She
asserted the marriage lasted 22 years. Daniel’s attorney, David Allen, disagreed with
Rafani-Steele’s characterization that the marriage lasted over 20 years. Allen argued that
the parties separated on December 1, 2000, and entered into a stipulated judgment on
assets and debts. He pointed out that, in the stipulated judgment, the parties reserved
jurisdiction on the issue of marital status, not on the date of separation.
       The court asked if the parties wanted to terminate their marital status that day.
Rafani-Steele stated there were still issues of asset and debt disclosure. The court


                                              7.
reminded the parties that there already was a judgment—the stipulated judgment filed in
2002—which addressed the division of community property and set the date of
separation.
       The parties agreed to stipulate to termination of marital status effective May 31,
2011, but they disagreed on the date of separation. Rafani-Steele told the court, “[T]here
is an issue as to date of separation which goes to division of the retirement.” The court
responded that Tammy would need to file a motion and educate the court about what her
position was.
       The day after the hearing, the court ruled on Tammy’s request for modification of
spousal support, ordering Daniel to pay Tammy $1,250 per month for February and
March 2011 and then $1,000 per month beginning in April 2011.
       On March 25, 2011, Tammy filed a pleading on joinder for an employee benefit
plan incorrectly identified as “State of California 401k Thrift Plan.” On May 9, 2011, the
Department of Personnel Administration, Savings Plus Program, filed a notice of
appearance and response to the notice of joinder.
       On March 30, 2011, Tammy sought an order from the court for $1,450 in past-due
spousal support. On April 13, 2011, she filed a reply declaration and request for
temporary exclusive use of the “marital home.” She declared that she was being evicted
and she would be unable to secure housing. To establish her claim to the house, Tammy
attached to her declaration a copy of an interspousal grant deed appearing to show that,
on November 16, 2006, Daniel conveyed the house on Ashland Court to himself and
Tammy, “husband and wife, as joint tenants with right of survivorship.” Also attached to
her declaration were copies of tax returns for years 2004 through 2009 indicating that
Daniel and Tammy filed their federal income taxes under the status “married filing
jointly.” On April 14, 2011, the court denied Tammy’s request for exclusive use of the
house and again ordered Daniel to pay $1,000 per month in spousal support.




                                             8.
       On November 21, 2011, the parties and their attorneys again appeared before the
court. Allen had prepared a judgment terminating marital status as the parties had agreed
to on February 23, 2011, but Rafani-Steele would not sign it because it included a
recitation of December 1, 2000, as the date of separation. Rafani-Steele asserted that the
parties reconciled after the stipulated judgment was entered and they were together for
another 10 years. She told the court it had been her intention to file a motion “to [obtain]
a ruling on the date of separation,” and she had been trying to contact Tammy to “get
moving on that .…” It does not appear from the record, however, that Tammy ever filed
a motion explaining her position on what the date of separation should be or why the date
of separation specified in the stipulated judgment should be ignored.
       On November 30, 2011, the court held a hearing set as “an order to show cause
why the judgment should not be processed.” Rafani-Steele said the only reason for the
hearing was “to put on paper the judgment that was indicated on the record on
February 23rd,” but there were still pending property issues. She stated, “The Court well
knows that we have an issue pending with regard to the date of separation and retirement
plans which were not disposed of in the initial judgment.” On December 1, 2011, the
court issued a ruling. It provided:

       “The Court finds that the parties were married on February 26, 1989, and
       separated on December 1, 2000. The parties entered into an agreement
       incorporated into a Judgment of Dissolution filed February 13, 2002. That
       Judgment solely reserves jurisdiction over marital status. Both parties were
       represented by counsel at the time of dissolution. Attorney John Bianco’s
       declaration states that he advised Wife that if she and Husband reconciled
       and wished to remain married, they would need to file a Stipulation to Set
       Aside the Judgment. No Stipulation was ever filed. For community
       property purposes, the Court finds the Date of Marriage to be February 26,
       1989, and the Date of Separation to be December 1, 2000, as set forth in the
       Judgment of Dissolution. The parties stipulated that marital status would
       terminate May 31, 2011.”
       The same day, a judgment of dissolution was entered nunc pro tunc as of
February 23, 2011, terminating the marital status of the parties.


                                             9.
       On January 30, 2012, Tammy filed a notice of appeal.




                                      DISCUSSION
       Tammy claims that the stipulated judgment filed in 2002 is void because it did not
comply with the requirements of Code of Civil Procedure section 664.6.4 As a
consequence, she contends, the court’s ruling of December 1, 2011, which relied on the
stipulated judgment, must be set aside. Tammy never raised the issue of noncompliance
with section 664.6 to the trial court. Normally, we do not consider claims raised for the
time on appeal (Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1399-
1400), but we address Tammy’s contention that the stipulated judgment is void because
void judgments are subject to direct or collateral attack at any time. (County of San
Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226.)
       Daniel responds that the stipulated judgment is not void on its face. Rather, it is a
valid judgment that can only be challenged by a motion to set aside the judgment filed
within a reasonable time, which Tammy failed to do.
I.     The stipulated judgment does not comply with section 664.6
       As a preliminary matter, we consider whether Tammy is correct that the stipulated
judgment in this case did not comply with section 664.6. “Section 664.6 governs the
entry of judgment pursuant to the terms of a settlement agreement.” (Levy v. Superior
Court (1995) 10 Cal.4th 578, 583 (Levy).) The statute provides:

       “If parties to pending litigation stipulate, in a writing signed by the parties
       outside the presence of the court or orally before the court, for settlement of
       the case, or part thereof, the court, upon motion, may enter judgment


       4Subsequent   statutory references are to the Code of Civil Procedure unless
otherwise noted.



                                             10.
       pursuant to the terms of the settlement. If requested by the parties, the
       court may retain jurisdiction over the parties to enforce the settlement until
       performance in full of the terms of the settlement.” (§ 664.6.)
       It is settled that “parties” as used in section 664.6 means the litigants personally,
not their attorneys. (Levy, supra, 10 Cal.4th at p. 586.) Here, the stipulated judgment did
not satisfy the requirement of a “writing signed by the parties outside the presence of the
court” because it was not signed by Tammy or Daniel personally.
       Daniel notes that section 664.6 also provides for stipulation to settle “orally before
the court,” and Tammy appeared before the court and orally stipulated to the settlement
terms recited by Bianco. Therefore, Daniel argues, the requirements of section 664.6
were met with respect to Tammy, and the stipulated judgment is enforceable against her.5
We agree that Tammy could not avoid her stipulation to settlement terms made orally
before the court by later refusing to sign an agreement that reduced her stipulation to
writing. (See Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1431 [“Having
orally agreed to settlement terms before the court, parties may not escape their
obligations by refusing to sign a written agreement that conforms to the oral terms.”].) If
the trial court had not filed the stipulated judgment in this case, however, it is not clear to
us that Daniel, who neither orally agreed to the settlement terms nor signed the written
stipulation, would have been able to enforce the settlement agreement. (Critzer v. Enos
(2010) 187 Cal.App.4th 1242, 1256-1257 [party that had neither orally consented to
settlement before court nor given written consent by signing writing attached to
reporter’s transcript of settlement was not entitled to enforce settlement agreement
against parties who had orally consented].) Further, we observe that the date of
separation was not among the settlement terms Bianco recited to the court and Tammy
agreed to. Tammy also identifies other settlement terms that appear in the stipulated

       5Daniel,   in contrast, did not stipulate to settle either orally before the court or in a
signed writing.



                                                11.
judgment but had not been stated by Bianco in court. For example, the stipulated
judgment includes child-custody terms that Bianco did not describe at the hearing on
October 11, 2001. Thus, the stipulated judgment did not simply reduce to writing the
settlement terms that Tammy had orally agreed to. For these reasons, we conclude the
stipulated judgment—which was not signed by the parties and contained terms Tammy
did not orally agree to before the court—did not comply with the requirements of
section 664.6.

II.    Failure to comply with section 664.6 does not render the stipulated judgment
       void
       In apparent error, the trial court judge nonetheless signed the stipulated judgment
on February 13, 2002, and it became the judgment of dissolution of marriage in this case
when it was filed the same day. The issue before us is whether noncompliance with
section 664.6 rendered the ensuing stipulated judgment void as Tammy contends or valid
until set aside as Daniel claims.
       A judgment is void when the “court lacks jurisdiction in a fundamental sense .…”
(People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American
Contractors).) Lack of jurisdiction in a fundamental sense means “‘an entire absence of
power to hear or determine the case, an absence of authority over the subject matter or
the parties,’” and a resulting void judgment is subject to direct or collateral attack at any
time. (Ibid.)
       On the other hand, when a court has fundamental jurisdiction, but acts contrary to
law, it is said to have exceeded its jurisdiction. (American Contractors, supra, 33 Cal.4th
at p. 661.) “When a court has fundamental jurisdiction, but acts in excess of its
jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or
judgment is valid until it is set aside, and a party may be precluded from setting it aside




                                             12.
by ‘principles of estoppel, disfavor of collateral attack or res judicata.’”6 (Ibid.) For
example, in Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1083-1084, the
probate court granted an ex parte petition and appointed a new conservator to an estate
without complying with certain notice and investigation requirements of the Probate
Code. Later, a surety attempted to avoid liability for the new conservator’s
embezzlement by claiming the court’s order appointing the new conservator was void
because it was made in violation of various Probate Code sections. (O’Connor, supra, at
p. 1087.) The Court of Appeal rejected the surety’s claim that the court’s appointment
order was void, concluding the probate court had jurisdiction over the matter and failure
to comply with statutory procedure did not deprive the probate court of jurisdiction. (Id.
at pp. 1088-1092.) Further, the surety was estopped to challenge the appointment order
because its course of conduct manifested consent to the appointment. (Id. at p. 1092.)
       Here, since Tammy filed a petition for dissolution and Daniel appeared and filed a
response, the trial court clearly had jurisdiction over the subject matter and the parties.
Tammy does not claim otherwise, and, by her requests to the court to modify and enforce
the stipulated judgment, she implicitly acknowledged the court has jurisdiction over the
parties with respect to matters related to the dissolution of their marriage.
       Accordingly, the trial court had fundamental jurisdiction. It is true that the trial
court entered the stipulated judgment despite the lack of the parties’ signatures, contrary

       6At  oral argument, Tammy’s attorney claimed that Daniel neither raised the
argument that the stipulated judgment was voidable nor cited In re Andres G. (1998) 64
Cal.App.4th 476 in his appellate brief. This is not correct. On page eight of his appellate
brief, Daniel cited In re Andres G. and asserted that, “When a judgment is not void on its
face and the defect consists only of an act in excess of the court’s jurisdiction, it is valid
until the judgment is set aside.” While it is true that Daniel did not use the term
“voidable,” he raised the issue that the stipulated judgment was an act in excess of the
court’s jurisdiction and was therefore valid until it was set aside. As we see from
American Contractors, this is the very definition of a voidable judgment. Accordingly,
Daniel sufficiently raised the issue that the stipulated judgment was voidable, and we
deny Tammy’s request for leave to file supplemental briefing on the issue.



                                             13.
to the requirements of section 664.6. The trial court’s failure to comply with the statutory
procedures of section 664.6, however, did not deprive it of jurisdiction. (See
Conservatorship of O’Connor, supra, 48 Cal.App.4th at pp. 1090-1092.) Rather, the
entry of the stipulated judgment was an act in excess of jurisdiction and was valid until
set aside. (See American Contractors, supra, 33 Cal.4th at p. 661.)
       In support of her position that the stipulated judgment is void, Tammy relies on
Davidson v. Superior Court (1999) 70 Cal.App.4th 514 (Davidson). In Davidson, the
City of Mendota filed a civil action seeking an injunction against the petitioners
prohibiting them from operating a junkyard on their land. The case purportedly settled in
1987 with a “Stipulation for Settlement and Entry of Order” signed by the petitioners’
attorney but not the petitioners personally. Under the stipulated order, the petitioners
agreed to stop their junkyard activities. In 1991, the city initiated contempt proceedings
against the petitioners. (Id. at p. 518.) The petitioners moved to rescind the stipulated
order arguing, among other things, that the stipulation was not binding because they did
not personally sign it. (Id. at pp. 518-519.) The contempt action and rescission motion
were set for hearing on the same day, but an issue raised in the rescission motion was
deferred. The petitioners claimed that they never gave their former attorney authority to
sign the stipulation on their behalf, but the court deferred the issue of attorney authority
because there was no time to take testimony. (Id. at p. 519.) The petitioners’ rescission
motion was later denied without resolution of the authority issue. The petitioners filed an
appeal, which the appellate court denied, noting that the question whether petitioners’
former attorney had authority to settle on their behalf was not before the court. (Id. at
p. 520.)
       In 1995, the city again initiated contempt proceedings, and the petitioners were
found in contempt of the stipulated order. (Davidson, supra, 70 Cal.App.4th at p. 520.)
The petitioners attempted to set a jury trial on the issue of whether their former attorney
had authority to agree to the 1987 settlement and stipulated order. Their request for a


                                             14.
trial was denied as untimely. They filed an appeal of the denial order, which was
dismissed as an appeal of a nonappealable order. (Id. at p. 521.) The petitioners were
sentenced to five days in jail. The petitioners then filed a writ of habeas corpus. (Id. at
p. 522.)
       The Davidson court granted the petitioners relief, citing section 664.6 and Levy,
supra, 10 Cal.4th 578. Because the 1987 stipulated agreement was not signed by the
parties, the court reasoned, “[T]he judgment obtained by the City of Mendota behind the
purported settlement agreement is void for purposes of enforcement in contempt
proceedings premised on its violation.” (Davidson, supra, 70 Cal.App.4th at p. 517,
italics omitted.) The court also observed that the petitioners had never been able to
obtain a trial on their claim that their former attorney lacked authority to bind them to the
settlement agreement. (Ibid.)
       Davidson is distinguishable for many reasons. First and foremost, the case
involved a contempt proceeding, and the rule in California is that a contemnor “‘may, for
the first time, collaterally challenge the validity of the order he or she is charged with
violating.’” (Davidson, supra, 70 Cal.App.4th at pp. 529-530, fn. 2.) Although the
Davidson court described the stipulated order as “void” for purposes of the contempt
proceeding, it did not hold that the failure to comply with section 664.6 meant the trial
court lacked fundamental jurisdiction. To the contrary, the court concluded that “the
1987 stipulated order was in excess of the court’s jurisdiction because it was not entered
in compliance with section 664.6 or some other settlement enforcement mechanism.”
(Davidson, supra, at p. 529, italics added.)
       Second, the procedural history of the case was complicated and unusual. Among
other things, the California Supreme Court decision in Levy, supra, 10 Cal.4th 578,
holding that section 664.6 requires the litigants’ signatures, came out in 1995, after the
stipulated order was entered but before the contempt proceeding. Because of this
intervening law, the Davidson court ignored the doctrine of law of the case, which would


                                               15.
have barred the petitioners from challenging the validity of the stipulated order again.
(Davidson, supra, 70 Cal.App.4th at p. 530.) Further, the petitioners’ attempts to
adjudicate the issue of attorney authority had been “thwarted at every turn” by the courts.
(Id. at p. 518.)
       Third, the petitioners at no time acquiesced to the stipulated order. They
steadfastly argued that the stipulated order was invalid and raised the issue of the lack of
party signatures at the first contempt proceeding. (Davidson, supra, 70 Cal.App.4th at
pp. 518-519.)
       Here, in contrast, there was no intervening change in the law, and the procedural
history in this case, while spanning many years, is not complex. Tammy, unlike the
petitioners in Davidson, has not been consistent in her stance regarding the validity of the
stipulated judgment. For over a year from November 2010 through November 2011,
Tammy sought enforcement and modification of the stipulated judgment by the trial
court, but now on appeal she argues that the stipulated judgment must be set aside.
Finally, of course, this case is not a contempt proceeding. In light of these differences,
Tammy’s reliance on Davidson is misplaced. As the Davidson court recognized, a
judgment entered that fails to meet the requirements of section 664.6 (or some other
enforcement mechanism) is “in excess of the court’s jurisdiction.” (Davidson, supra, 70
Cal.App.4th at p. 529.) An act in excess of jurisdiction is not void; it is merely voidable
and is valid until set aside. (American Contractors, supra, 33 Cal.4th at p. 661.)
III.   Any other challenge to the stipulated judgment has been forfeited
       As Daniel points out, Tammy did not file a motion to set aside the stipulated
judgment within a reasonable time. Indeed, it appears from the record that she never
filed a motion to set aside the stipulated judgment at all. Nor did Tammy file a motion
explaining what the date of separation should be, even after the trial court requested to be
“educate[d]” about her position on the issue. Far from seeking to set aside the stipulated




                                             16.
judgment, Tammy initially asked the court to enforce the stipulated judgment, which she
described as a “judgment affect[ing] all matters apart from termination of marriage .…”
       Daniel argues that Tammy’s appeal is not appropriate and the proper procedure for
challenging the validity of the stipulated judgment is filing a motion to set aside the
judgment with the trial court. He asserts, “Tammy failed to file such a motion; therefore
this matter should not be brought before the Appellate court.” Although Daniel does not
use the words “forfeiture” or “waiver,” we understand Daniel’s argument as raising the
fundamental rule that appellate courts do not ordinarily consider issues raised for the first
time on appeal. (Bank of America, N.A. v. Roberts, supra, 217 Cal.App.4th at pp. 1399-
1400.) As we have explained, we considered Tammy’s claim that the stipulated
judgment is void because void judgments may be challenged collaterally at any time.
(County of San Diego v. Gorham, supra, 186 Cal.App.4th at p. 1226.) Now that we have
concluded the stipulated judgment is not void, we agree with Daniel that any other
challenge to the stipulated judgment is not properly before us because Tammy did not
challenge the validity of the stipulated judgment with the trial court.
       Tammy’s contention on appeal is that the trial court erred by relying on the
stipulated judgment and not considering other evidence that suggested a later date of
separation. But the stipulated judgment was the “judgment of dissolution of marriage” in
the case reserving only the issue of marital status; it expressly provided that it was
intended to be “a final and complete settlement of all [the parties’] rights and obligations,
including property rights and property claims”—presumably including the date of
separation; and Tammy herself believed the stipulated judgment was enforceable, as she
asked the court to take judicial notice of the stipulated judgment and to enforce certain of
its terms. Under these circumstances, we cannot fault the trial court for relying on the
stipulated judgment to determine the date of separation when Tammy never argued to the
trial court that the judgment was invalid. As a result, we reject Tammy’s challenge to
the trial court’s ruling on the date of separation.


                                              17.
       In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, cited by Tammy, does
not change our conclusion. In that case, the wife moved to set aside a marital settlement
agreement and judgment on the ground of extrinsic fraud, claiming that the husband had
failed to disclose a community property asset. (Id. at p. 654.) The trial court believed it
was jurisdictionally bound to accept the date of separation recited in the settlement
agreement, but the appellate court concluded the trial court’s belief was incorrect. (Id. at
p. 656.) The appellate court explained: “[P]aramount to our determination of this issue
is the fact that Wife’s motion involved a direct invocation of the equity powers of the
court—indeed, she sought to overturn a final judgment and marital settlement agreement
nearly a year old. ‘The first duty of equity is to be equitable.’ [Citation.] A court of
equity is bound to consider substance over form [citations] and therefore may view the
conduct of the parties rather than the terms of the written instrument in order to ascertain
their true intent.” (Id. at p. 657.)
       In this case, however, Tammy never argued that the stipulated judgment should be
set aside, and the trial court did not indicate that it believed it was jurisdictionally bound
to accept the facts recited in the stipulated judgment. Tammy simply did not offer a legal
argument for the trial court to reject the date of separation specified in the apparently
valid stipulated judgment.
       We emphasize that no motion to set aside the stipulated judgment was made in this
case, and so the record has not been developed on issues relevant to such a motion. As
an appellate court, we would not rule on a motion to set aside the stipulated judgment in
the first instance, and we express no opinion on how the trial court should rule if such a
motion were made.
                                       DISPOSITION
       The judgment is affirmed. Respondent is awarded costs on appeal. Both parties
request attorney fees, but we decline to entertain the requests, which are better suited to




                                              18.
determination by the trial court. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th
269, 319 [noting prevailing appellant “may be awarded … attorneys’ fees in the trial
court’s discretion, upon an appropriate motion in that court”].)


                                                                   _____________________
                                                                                  Hoff, J.*

WE CONCUR:


 _____________________
 Gomes, Acting P.J.


 _____________________
 Poochigian, J.




       *Judge  of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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