GROUNDS FOR SET ASIDE OF DEFAULT/JUDGMENT BY ... - California



GROUNDS FOR SET ASIDE OF DEFAULT/JUDGMENT

|case type |statute or rule and deadline for FILING |evidence or showing |dna TEST? |comments |

|IV-D cases only (DCSS |FC 17432 - MBSAC |NCP’s actual income was |No |Check Summons/Complaint to see if |

|case) |(presumed income, which is now min. wage|“substantially different” | |support order based on MBSAC |

| |income) – file within 1 year* of first |(10% or more) than MBSAC | |(minimum wage) income. |

| |collection by DCSS |income (minimum wage | | |

| | |income)* used | |See FC 17432(g) re: DCSS duty to |

| |*before 8/11/03, limit was 90 days | | |bring set aside when it learns of |

| | |*min. wage income used now| |actual incomee |

|IV-D cases only (DCSS |FC 17433 – Mistaken ID |“You’ve got the wrong |Yes (if needed to |Mistaken ID means “you’ve got the |

|case) | |guy.” |establish NCP is wrong|wrong John Doe” NOT “I’m not the |

| |Deadline to file: statute does not say | |guy) |father and I want a parentage |

| | | | |test.” |

|IV-D and non |FC 7575 – VDOP (Voluntary Declaration of| |Yes | |

|IV-D cases |Parentage) set aside | | |FC 7575 (3)(B)- DCSS is required |

| | | | |to file a VDOP set aside if (1) |

|(where a VDOP was |Deadline: | | |there are 2 conflicting VDOPs or |

|signed) |New (1/1/05) FC 7645 (AB 252)Genetic |Just ask (declaration re: | |(2) if the VDOP names a different |

|(set aside can be |tests: 2 years from date of birth of the|factual basis for request)| |father than the judgment |

|filed even when there |child (but see (c)(1)- can parent set | | | |

|is no court case yet) |aside 6months from first order or | | | |

| |judgment if child is over 2 years old?).|Note: New (1/1/05) FC | |Note: Must use FL-280 for set |

| | |7575(b)(1): court can deny| |aside request. Must use FL-290 for|

| | |VDOP set aside despite DNA| |Order and clerk of court is |

| | |results if to do so would | |supposed to send filed copy to |

| |FC 7575 as amended (effective 1/1/05 |be in child’s best | |DCSS in Sacramento |

| |(AB252)), either parent can rescind VDOP|interest (factors such as | | |

| |within 60 days of signing (date of |age of child, nature of | | |

| |later-in-time signature starts 60 day |relationship with | | |

| |clock) on form DCSS will develop. Form |“father”, etc.) | | |

| |will be given to DCSS and mailed | | | |

| |(certified) to other parent. | | | |

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|CASE TYPE |STATUTE OR RULE AND DEADLINE FOR FILING |EVIDENCE OR SHOWING |DNA TEST? |COMMENTS |

|IV-D |New per AB252 (eff. 1/1/05) | |Yes, if you win on set|See new (1/1/05) |

| | |Per FC 7647, motion must |aside |FC 7648 re: court can deny set |

| |FC 7646 |meet a list of conditions,|(a party may have DNA |aside even if DNA test excludes |

| | |including county in which |results before filing |PEF for various reasons, such as |

| |A mother, “father”, child, or legal rep.|motion filed is proper |motion, but FC 7647(a)|best interest of child, etc. |

| |of any of these people can move to set |venue, etc. and must have |(2) (C) says moving | |

| |aside a judgment if: (1)it is within 2 |declaration stating why it|party is not required |Set aside does not apply if (1) |

| |years from date previously established |is believed that |to have DNA test |judgment comes from another state |

| |father (PEF) knew or should have known |previously established |showing PEF is not the|(FC 76438.3) or (2) if marital |

| |of a judgment or existence of action or |father (PEF) is not the |father in order to |presumption of parentage applies |

| |(2) per FC 7575, if VDOP signed, before |bio. father |file a FC 7645 motion)|(FC 7645) or (3) if VDOP signed |

| |child is age 2 or (3) If “father” | | |and child is over 2 years old (FC |

| |established as result of default | | |7575) |

| |judgment, 2 years from 1/1/05 (so, for | | | |

| |default judgments pre-dating 1/1/05, | | |FC 7648.4 if motion to set aside |

| |have until 10/28/06 to bring motion). | | |is successful, court must |

| |Note: After 10/28/06, a DNA test is | | |terminate ongoing c/s order and |

| |still available per 7646(1)as long as | | |arrears, but PEF cannot get |

| |requested within 2 years from the date | | |reimbursed for support already |

| |applicant knew or should have known of | | |paid |

| |the default judgment, as long as there | | | |

| |is no VDOP for the child. | | | |

|IV-D and non IV-D | |Grounds for relief |No (?): |NCP’s delay cannot be caused by |

| |FC 3690-3693 |materially affected |statute is silent on |avoidance of service or |

| | |original order and NCP |whether parentage is |inexcusable neglect. |

| |Fraud: 6 months from date |would materially benefit |set asideable, but | |

| |discovered/should have discovered |from relief. |legislative history |Relief not available if service |

| | | |indicates no; but see |was proper. |

| |Perjury: 6 months from date | |3693- The court has | |

| |discovered/should have discovered | |discretion to set |3692 (compare with 3693) - Order |

| | | |aside the entire |cannot be set aside “simply |

| |Lack of notice: within a “reasonable | |order, if necessary, |because the court finds it was |

| |time” but no later than 6 months after | |for equitable |inequitable when made…or because |

| |NCP gets notice/should have gotten | |considerations. 3690 |subsequent circumstances caused |

| |notice of support order or notice that | |says these statutes |support ordered to become |

| |income/assets are subject to attachment | |pertain to “support |excessive or inadequate.” |

| | | |order or any part or | |

| | | |parts thereof.” | |

|IV-D and non IV-D |CCP 473 – no later than 6 months after |Mistake, inadvertence, |Yes | |

| |judgment |surprise or excusable | | |

| | |neglect | | |

|CASE TYPE |STATUTE OR RULE AND DEADLINE FOR FILING |EVIDENCE OR SHOWING |DNA TEST? |COMMENTS |

|IV-D and non IV-D |CCP 473.5 - no later than the earlier |Service of summons did not|Yes | |

| |of 2 years after entry of default |result in actual notice | | |

| |judgment OR 180 days after service of | | | |

| |written notice that a default or default| | | |

| |judgment has been entered. | | | |

|non IV-D |FC 2120 -2129- |2120(b) and (c)– |N/A |See annotated FC for case law |

| |Actual fraud: 1 year from |nondisclosure or other | |cites |

|set aside judgment in |discovered/should have discovered |misconduct of party making|(Query- what if | |

|disso/sep/nullity |Perjury: 1 year from discovered/should |property/debt division |Judgment includes |This is limited to FL cases |

|cases |have discovered |inequitable or making |parentage finding for |(disso/sep/nullity) only – see FC |

| |Duress: 2 years from discovered/should |support orders |child born prior to |2120 and 2121 |

| |have discovered |insufficient |the marriage?) | |

| |Mental incapacity: 2 years from date | | |2123 – Can’t set aside judgment |

| |judgment entered | | |just because it was inequitable |

| |Mistake of law or fact in stipulated or |Must show facts alleged as| |when made or because subsequent |

| |uncontested judgment: 1 year from date |grounds for set aside | |circumstances caused asset/debt |

| |of entry of judgment |materially affect original| |division to become inequitable or |

| |Failure to do disclosure: 1 year from |order and moving party | |support to become insufficient. |

| |date moving party discovered/should have|would materially benefit | | |

| |discovered failure to comply with |from set aside. | | |

| |disclosure | | | |

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|IV-D and non IV-D |DEFECTIVE SERVICE- |Service must be defective.|Yes |A general appearance does not |

| |IRMO Smith (1982) 135CA3d54 |Valid sub service (see CCP| |waive right to file set aside |

| | |415.20) is not defective | |based on void service |

| |FILE as soon as possible; waiting may |service | | |

| |ruin otherwise valid claim. | | | |

|IV-D and non IV-D |FRAUD - |Extrinsic fraud and |Yes |Extrinsic fraud: moving party is |

| | |justifiable reliance | |deprived opportunity to present |

| |Must be filed in a “diligent” manner |on extrinsic fraud | |defense/kept in |

| | | | |ignorance/fraudulently prevented |

| | | | |from participating in case. |

| | | | |Example: CP or DCSS telling NCP |

| | | | |that matter would be taken care |

| | | | |of, there is no need to come to |

| | | | |the court hearing |

| | | | |Intrinsic fraud (insufficient): |

| | | | |moving party has notice of action |

| | | | |and opportunity to defend case but|

| | | | |has unreasonably neglected to do |

| | | | |so. Example: CP tells NCP he is |

| | | | |not the father. |

| | | | |IRMO Guardino |

| | | | |(1979)95CA3d77City/County |

| | | | |SFvStanley(1994)24CA4th1724; LA v.|

| | | | |Navarro (2004)120CA4th246 |

|CASE TYPE |STATUTE OR RULE AND DEADLINE FOR FILING |EVIDENCE OR SHOWING |DNA TEST? |COMMENTS |

|IV-D and non IV-D |EQUITY – Must be filed in a “diligent” |Showing that set aside is |Yes | When all else fails, try equity |

| |manner |necessary for “fairness” | | |

| | | | |See LA v. Navarro |

| | |Need: Meritorious defense,| |(2004)120CA4th246 re: equitable |

| | |good excuse for not having| |relief 5 years after Judgment |

| | |defended action before, | |where later-in-time IV-D case from|

| | |diligence in filing once | |2nd county dis-established NCP as |

| | |discover existence of | |father. |

| | |order | | |

Set aside theme reminder: An otherwise valid paternity judgment cannot be set aside merely on the basis of subsequent scientific evidence (DNA) in the absence of extrinsic fraud. City and County of San Francisco v. Cartagena (1995) 35 CA4th 1061

NB: There may be other avenues to obtain a set aside other than those mentioned above. The above list is not meant to be exclusive, but to capture the most commonly-used areas of set aside relief.

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11/04 (post passage of AB252)

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