Filed 8/7/13 Worden v. Aggazzotti CA4/2

                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



DEREK WORDEN,

         Appellant,                                                       E056456

v.                                                                        (Super.Ct.No. RDARS040631)

STEPHANIE AGGAZZOTTI,                                                     OPINION

         Respondent.



         APPEAL from an order of the Superior Court of San Bernardino County. John A.

Crawley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         William K. Vogeler, Gruenbeck & Vogeler, for Appellant Derek Worden.

         Christopher R. Abernathy, Christopher R. Abernathy APC for Respondent

Stephanie Aggazzotti.




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       This is an appeal from a post judgment order in family law proceedings.1 In the

course of child support modification hearings, the commissioner denied an order to show

cause without prejudice on grounds that Derek Worden failed to comply with court

orders. Worden appeals, arguing that he was not properly served with the orders.

                              FACTS AND PROCEDURAL HISTORY

       On May 4, 2009, Worden filed a pro per motion for an Order to Show Cause for

modification of child support, together with an income and expense declaration. The

matter was set for hearing on June 8, 2009.

       After numerous delays for various reasons, including disposition of other matters,

a hearing was held on August 11, 2011. Worden was present without counsel. At the

conclusion of the hearing, the parties were ordered to “file and serve supplemental

declarations two weeks prior to the next Court date. Parties are further ordered to file and

serve two weeks prior to the next Court date updated, accurate and complete income and

expense declarations.”

       On October 6, 2011, another hearing was held but neither party appeared. The

minute order states that the hearing was continued because Worden had retained counsel

and discovery was pending. The order concludes: “As ordered at the hearing of 8/11/11

parties are ordered to file and serve two weeks prior to the next Court date updated,

accurate and complete income and expense declarations. Failure to comply with this



       1 The order is appealable under Code of Civil Procedure section 904.1,
subdivisions (a)(1),(2), and (10).

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order will result in there being no hearing.” The order also provided: “Notice to be given

by DCSS.” Proof of service by mail on Worden was filed on October 24, 2011.2

       The next hearing was held on January 3, 2012. Neither Worden nor his new

attorney, William Vogeler, was present. “The court orders parties to file and serve two

weeks prior to the next hearing updated, accurate and complete Income and Expense

declarations. Attorney Vogeler is to file a substitution of attorney.” In addition, the order

after hearing, adds a handwritten order “If the moving party fails to comply with the

order as occurred 8/11 and 10/11, then this request to modify shall be denied.” Counsel

for respondent was ordered to give notice. However, the proof of service only shows

service on attorney Vogeler. The hearing was continued until March 20, 2012.

       On March 20, 2012, Worden and his attorney, Vogeler, were present. The

commissioner pointed out that an income and expense declaration still had not been filed.

Attorney Vogeler argued that Worden, who was neither present nor represented at the

January 3, 2012 hearing, had not had the order made at that hearing served on him.

Nevertheless, based on the failure to comply with the three prior orders, the

commissioner denied Worden’s requested modification order without prejudice to refile.3




       2 The Register of Actions for October 26th states: “Proof of service of NRPS by
mail service on 10/26/11 as to Derek P. Worden, filed.”

       3 The problem with refilling is that Worden would lose the retroactive benefit of
his request to modify child support i.e., three years of payments.


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                          COMPLIANCE WITH FAMILY CODE SECTION 215

        Worden first argues that: “The orders that were the basis of the commissioner’s

ruling on March 20, 2012, were not clear and not served on Worden as required by

Family Code section 215(a).[4] Therefore, they were not valid.”

        Section 215, subdivision (a) states: “(a) Except as provided in subdivision (b),

after entry of a judgment of dissolution of marriage, nullity of marriage, legal separation

of the parties, or paternity, or after a permanent order in any other proceeding in which

there was at issue the visitation, custody, or support of a child, no modification of the

judgment or order, and no subsequent order in the proceedings, is valid unless any prior

notice otherwise required to be given to a party to the proceeding is served, in the same

manner as the notice is otherwise permitted by law to be served, upon the party. For the

purposes of this section, service upon the attorney of record is not sufficient.”

        Worden contends that the section requires that orders in modification proceedings

be served on the party. Service on the attorney of record is not sufficient. Since there

was no proof of such service for the October 6, 2011 and January 3, 2012 hearings,

Worden contends that the March 20, 2012 order was invalid.

        Respondent Aggazzotti argues that section 215 is irrelevant because it only applies

to service of the initial post-judgment pleading. She cites In re Marriage of Kreiss

(1990) 224 Cal.App.3d 1033. In that case, decided under former Civil Code section



        4   Unless otherwise indicated, all further statutory references are to the Family
Code.

                                                4
4809, the court set aside an order terminating spousal support because the notice of

motion to terminate child support was not served on the former wife. (Kreiss at p. 1034.)

       Respondent here argues that Worden filed the post judgment request to modify

child support, and section 215 is therefore inapplicable.

       We disagree. Section 215 is not limited to the initial post judgment pleading. It

clearly applies to subsequent orders in the modification proceedings: “[N]o modification

of the judgment or order, and no subsequent order in the proceedings is valid

unless . . . .” (§ 215, subd. (a), italics added.) We therefore find section 215 applicable in

this case.

       Accordingly, the orders of October 11, 2011, and January 3, 2012, were not valid

because they were not served on Worden.

       However, Worden was fully aware of the need to file an income and expense

statement because he initially filed one with his modification request on January 31,

2003. He also filed an income and expense statement on May 4, 2009. Worden was

obviously aware of the requirement that an income and expense declaration be filed, and,

equally obviously, that a current declaration would be needed in order to obtain a

modification.

       More importantly, Worden was present at the August 11, 2011 hearing in which

he was ordered to file an updated declaration within two weeks. Thus, even though the

two subsequent orders were invalid for lack of proper service, Worden knew that he had

been ordered to file a current income and expense declaration the previous August.



                                              5
       When Worden appeared at the March 20, 2012 hearing, he was reminded of his

delinquency and the commissioner denied the modification motion accordingly. The

commissioner clearly did not abuse his discretion in denying the motion which had been

pending for three years.

       Respondent also argues that, despite the contrary language in the statute, service

upon attorney Vogeler was sufficient compliance with the statute. She cites Roszovan v.

Roszovan (1969) 268 Cal.App.2d 902. That case states: “When, however, the [former]

attorney of record is directly contacted and he represents by words or action that he is still

the attorney of record, the intent of the amended statute has been complied with.” (Id. at

pp. 906-907.)

       Respondent attempts to come within the Roszovan case by arguing that attorney

Vogeler made it clear that he was the attorney of record for Worden. To support the

argument, respondent filed a motion to augment the record on appeal with documents

consisting primarily of e-mails between the attorneys.

       By order filed January 25, 2013, we denied the motion “without prejudice to

resubmitting the motion and establishing that the documents attached to the motion were

filed or lodged in the case in the superior court.” No resubmission was made and the

denial of the motion stands. Accordingly, we have not considered the proposed

documents and, without them, there is no support for respondent’s argument.

                                COMPLIANCE WITH SECTION 217

       Section 217 provides: “(a) At a hearing on any order to show cause or notice of

motion brought pursuant to this code, absent a stipulation of the parties or a finding of

                                              6
good cause pursuant to subdivision (b), the court shall receive any live, competent

testimony that is relevant and within the scope of the hearing and the court may ask

questions of the parties. [¶] (b) In appropriate cases, a court may make a finding of

good cause to refuse to receive live testimony and shall state its reasons for the finding on

the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a

statewide rule of court regarding the factors a court shall consider in making a finding of

good cause.”5

       Worden argues that the commissioner erred by refusing to allow him to testify at

the March 20, 2012 hearing. However, any such testimony would have been ineffective

and irrelevant without a current income and expense declaration being on file. His

attorney appeared with him and argued on his behalf. We find no due process violation.

       The commissioner did not make a finding of good cause to receive Worden’s live

testimony and did not state his reasons for the decision. Nevertheless, the reasons are

fairly obvious and Worden was clearly not prejudiced by being denied the right to testify

in view of his continuing violation of the August 11, 2011 order.

       After three years of litigation over Worden’s May 4, 2009 request to modify child

support, the trial court did not abuse its discretion in denying the motion.

                                           DISPOSITION

       The order denying Worden’s motion to modify child support is affirmed.

Respondent to recover costs on appeal.


       5   See California Rules of Court, Rule 5.113, effective January 1, 2013.

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       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 RAMIREZ
                                                           P. J.


We concur:

McKINSTER
                    J.

KING
                    J.




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