Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1501-DA-727287. Joseph J. Gianquinto, Judge.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Marina L. Soto, Deputy Attorneys General, for Plaintiff and Appellant.
Law Offices of Brett V. Myers and Brett V. Myers for Defendant and Respondent, Ryan Kasey Yoder.
No appearance for Respondent, Sarah Forbus.
HILL, J.
The Kern County Department of Child Support Services appeals from an order granting defendant Ryan Yoder’s request for genetic testing, which was entered in response to Yoder’s motion to set aside the judgment of paternity. It contends the trial court exceeded its jurisdiction in making the order without first setting aside the judgment and placing paternity in issue; the request to set aside the eleven-year-old judgment was not timely and therefore could not have been granted, so paternity could not have been placed in issue; and the trial court erred in finding Yoder was denied due process when he stipulated to entry of the paternity judgment. We conclude the order was not authorized by statute or other applicable law, and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 1996, the predecessor of the Kern County Department of Child Support Services filed a complaint to establish that Ryan Yoder was the father of M.F., to order him to pay child support for her, and to order him to reimburse the county for amounts it had already paid for her support. The proof of service indicates the summons and complaint were personally served on Yoder on September 4, 1996. Yoder did not file a timely response to the complaint and his default was entered. On November 14, 1996, in response to a telephone call from the Department, Yoder met with its representative, JoLynne Hamilton. During that meeting, Yoder signed a stipulation for entry of judgment and judgment, in which he acknowledged being the father of M.F. and agreed to pay child support for her in specified amounts from the date of her birth; he also stipulated that he had read and understood the advisement and waiver of rights included in the form. The stipulation was signed by the court and entered as a judgment on November 25, 1996.
At that time, child support orders were enforced by the district attorney’s office. Currently, they are enforced by the local child support agency, the Kern County Department of Child Support Services. (Fam. Code, §§ 17303-17305.) For convenience, both are referred to herein as “the Department.”
In February 2000, the Department moved for modification of support; Yoder stipulated to the modification. On June 11, 2001, Yoder, acting in propria persona, filed an order to show cause seeking a DNA test to determine paternity and seeking to set aside the stipulated judgment. He asserted the Department had never offered him a genetic test or asked if he thought he was M.F.’s father, and it denied his requests for a genetic test, because it said it “already had a garnishment” against him. The court denied the request for genetic testing; it did not specifically rule on the motion to set aside the judgment.
On August 18, 2005, Yoder filed a motion to set aside the stipulation for entry of judgment and judgment and to obtain reimbursement of support paid. He asserted that, at the time he signed the stipulation for entry of judgment, he did not read or understand the advisement of rights, it was not explained to him, and he was not advised of his right to an attorney. He stated the child’s mother admitted he might not be the father, and he attached the results of a genetic test which concluded he was not the biological father of M.F.. The Department opposed the motion, asserting it was untimely and demonstrated no legal basis for setting aside the judgment. The motion was denied.
On December 4, 2007, Yoder, now represented by counsel, again moved to set aside the judgment of paternity and the orders requiring him to pay child support and arrearages. Yoder declared that he had not been served with summons and complaint, but had first learned of the proceeding from a phone call from the Department. He stated he met with Hamilton and tried to explain that he did not believe he was the child’s father; Hamilton told him default had already been entered and paternity could not be contested. He stated Hamilton pointed out section 11 of the stipulation form, which stated that entry of default would prevent him from contesting his case; his rights were not explained to him and he understood he had no choice but to sign the form. He asserted he has had almost no contact with the child and has not established a relationship with her. Without granting the motion, the court ordered genetic testing of Yoder and M.F. and set a further hearing “to review its genetic test results, as it relates to the motion to set aside the judgment of paternity.”
DISCUSSION
I. Standard of Review
“A trial court's order granting or denying a request for genetic testing is generally reviewed for abuse of discretion.” (County of Orange v. Superior Court (2007) 155 Cal.App.4th 1253, 1257 (Rothert).) Whether the trial court correctly interpreted the scope of its authority to order genetic testing under the relevant statutes is reviewed de novo. (Id. at p. 1258.) An order requiring genetic testing is appealable as a mandatory injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); Luitwieler v. Superior Court (1921) 54 Cal.App. 528, 530-531.)
II. Genetic Testing in Connection with a Motion to Set Aside Default and Default Judgment of Paternity
Generally, a default judgment may be set aside pursuant to Code of Civil Procedure section 473, if it was entered against a party through his mistake, inadvertence, surprise or excusable neglect; a motion for such relief must be brought within a reasonable time, not exceeding six months after the judgment was taken. (Code Civ. Proc., § 473, subd. (b).) After the six month time period has passed, a judgment generally may only be challenged on the grounds it is void on its face for lack of personal or subject matter jurisdiction, the relief granted was in excess of the court’s jurisdiction, or the default judgment was entered through extrinsic fraud or mistake. (Code Civ. Proc., § 473, subd. (d); Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1327; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)
Prior to September 2004, genetic testing could not be required in connection with a motion to set aside a default judgment of paternity, because the issue of paternity was not relevant to the motion. In City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061 (Cartegena), the county filed a complaint against Cartagena to establish paternity and for child support and reimbursement of public assistance. Cartegena, without counsel, entered into a stipulation in which he acknowledged paternity. Three years later, represented by counsel, Cartegena sought to set aside the stipulated judgment, contending he was induced to enter into the stipulation by the mother’s false representations that he was the father. He asked that the mother and child be ordered to submit to blood tests to determine paternity. The trial court ordered blood testing in order to determine whether Cartegena was the child’s biological father.
Because a judgment of paternity still existed at the time the order for blood tests was made, the judgment was entitled to res judicata effect, and the use of blood tests to overturn the judgment was barred. (Cartegena, supra, 35 Cal.App.4th at p. 1065.) Only after Cartegena established grounds for setting aside the judgment and obtained an order setting it aside would paternity be directly in issue and a blood test be a proper subject for discovery. (Id. at pp. 1068-1069.) Additionally, the results of the blood tests could not be used to prove extrinsic fraud by the mother as a ground for setting aside the judgment. While extrinsic fraud is one equitable ground for setting aside a default judgment, the type of fraud asserted by Cartegena constituted intrinsic, rather than extrinsic, fraud. (Id. at pp. 1067-1068.)
In a subsequent case, the court found this result to be inequitable and, based on general equitable principles, reversed the denial of the defendant’s motion to set aside the default judgment. (County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246 (Navarro).) In Navarro, the county filed a complaint to establish that the defendant was the father of two boys receiving public assistance. The defendant failed to answer and his default and a default judgment were entered. Five years later, the defendant moved to set aside the default and judgment, asserting genetic tests proved he was not the boys’ father. Although he acknowledged the six-month period for seeking relief pursuant to Code of Civil Procedure section 473 had passed, he requested equitable relief on the ground of extrinsic fraud, because the mother had misrepresented to the defendant that he was the boys’ father.
The court conceded that, “[b]y strict application of the law,” the defendant was not entitled to relief. (Navarro, supra, 120 Cal.App.4th at p. 248.) The time for granting relief under Code of Civil Procedure section 473 had passed, and the mother’s false assertion that the defendant was the children’s father did not constitute extrinsic fraud. But the court concluded “a narrow, technical reading of the controlling case law and statutes, with their emphasis on the public interest in the finality of judgments,” should not bar equitable relief in this case. (Id. at p. 249.) Citing policy statements set out in the Child Support Enforcement Fairness Act of 2000 (Stats. 1999, ch. 653, § 1), the court stated: “It is this state’s policy that when a mistake occurs in a child support action, the County must correct it, not exploit it.” (Navarro, supra, 120 Cal.App.4th at p. 249.) The court concluded:
“The County, a political embodiment of its citizens and inhabitants, must always act in the public interest and for the general good. It should not enforce child support judgments it knows to be unfounded. And in particular, it should not ask the courts to assist it in doing so. Despite the Legislature’s clear directive that child support agencies not pursue mistaken child support actions, the County persists in asking that we do so. We will not sully our hands by participating in an unjust, and factually unfounded, result.” (Navarro, supra, 120 Cal.App.4th at pp. 249-250.)
Four months after Navarro was decided, the Legislature enacted new legislation permitting a judgment of paternity to be set aside based on genetic test results that show the defendant could not be the father of the child. (Fam. Code § 7645, et seq.; Stats. 2004, ch. 849, § 4.) As enacted, new section 7646 of the Family Code provided:
All further statutory references are to the Family Code, unless otherwise indicated.
“(a) Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by … the previously established father of a child, … if genetic testing indicates that the previously established father of a child is not the biological father of the child. The motion shall be brought within one of the following time periods:
“(1) Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision.
“(2) Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity. Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575.
“(3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period commencing with the enactment of this section.” (§ 7646; Stats. 2004, ch. 849, § 4.)
Section 7646, subdivision (a)(3) was later amended to allow a motion to be brought “within a two-year period from January 1, 2005, to December 31, 2006, inclusive.” (Stats. 2008, ch. 58, § 1.)
The court may grant the motion to set aside the judgment of paternity if it finds the conclusions of the expert presenting the test results, as supported by the evidence, are that the previously established father is not the biological father of the child. (§ 7647.) “The court shall, at the request of any person authorized to make a motion pursuant to this article, or may upon its own motion, order genetic testing to assist the court in making a determination whether the previously established father is the biological father of the child.” (§ 7647.7.) Thus, for the first time, there was statutory authority for ordering genetic testing in connection with a motion to set aside a judgment of paternity, but the statutes imposed deadlines for bringing the motion to set aside the judgment.
In this case, paternity was not established by voluntary declaration, so section 7646, subdivision (a)(2) did not apply. Under subdivision (a)(1), Yoder was required to bring his motion to set aside the judgment within two years from the date he knew of the action to establish paternity; he knew of the action at least as of November 14, 1996, when he met with a Department representative and signed the stipulation for entry of judgment. Thus, his motion, brought in December 2007, was not within the time period prescribed in subdivision (a)(1).
Subdivision (a)(3) by its literal terms did not apply to the judgment in this case; although Yoder’s default was entered, the judgment was entered by stipulation rather than default. The statute was enacted on September 28, 2004. Yoder brought an earlier motion to set aside the judgment on August 18, 2005, during the two-year period provided for in subdivision (a)(3). His points and authorities in support of that motion did not mention section 7646, but he asked that the judgment be set aside because he had genetic test results demonstrating he was not M.F.’s father. He also requested “paternity screening.” In opposition, the Department mentioned section 7645, et seq., but asserted those provisions did not apply because judgment was obtained by stipulation. The trial court denied the motion without explanation. Yoder did not appeal. Thus, to the extent subdivision (a)(3) might apply to the judgment because it was entered based on Yoder’s default, Yoder had an opportunity to request genetic testing, but his motion was denied and he failed to appeal the denial. His subsequent motion, filed December 4, 2007, from which this appeal arises, was untimely under subdivision (a)(3).
In County of Fresno v. Sanchez (2005) 135 Cal.App.4th 15 (Sanchez), the court determined that the type of equitable relief granted in Navarro is no longer available since the enactment of section 7645, et seq. In Sanchez, several years after a default paternity judgment had been entered against defendant, he moved to modify his child support obligation to zero on the ground a genetic test showed he was not the child’s father. The trial court denied his motion, and the appellate court affirmed. When the motion was heard in March 2004, the law afforded defendant no relief. (Sanchez, supra, 135 Cal.App.4th at p. 18.) The default judgment of paternity was res judicata in subsequent enforcement proceedings; there was no authority for a parent to use a motion to modify child support as a vehicle to reopen the issue of paternity once a final judgment of paternity had been entered, and the doctrine of extrinsic fraud did not encompass the misrepresentation by the mother that defendant was the child’s father. (Ibid.) At the time of appeal, however, section 7645 et seq. had been enacted, making relief available where genetic tests indicated the previously established father was not the biological father of the child. (Sanchez, at p. 19.) The court noted there was still time to bring such a motion. (Id. at p. 20.)
The court rejected the defendant’s argument equitable relief should have been granted as in Navarro. (Sanchez, supra, 135 Cal.App.4th at p. 20.) It stated:
“In light of this comprehensive statutory scheme for setting aside a judgment of paternity when otherwise established procedural rules would not permit relief, it must be concluded that section 7645 et seq., vitiates County of Los Angeles v. Navarro. The amorphous equitable considerations and general policies relied on in Navarro must give way to the later enacted detailed procedure.” (Sanchez, supra, 135 Cal.App.4th at pp. 19-20.)
In Rothert, in accordance with section 7646, subdivision (a)(2), defendant moved to set aside a paternity judgment which was based on a voluntary declaration of paternity. (Rothert, supra, 155 Cal.App.4th at p. 1256.) The motion was filed more than four years after the child’s birth. The trial court granted defendant’s request for genetic testing, and stated it would make its decision on setting aside the judgment after receiving the results. The appellate court concluded the motion was untimely, because it was not brought within two years of the child’s birth, and therefore the order for genetic testing was erroneous. (Id. at p. 1260.) It stated:
“[I]t would be anomalous to permit the trial court to order genetic testing to determine whether to set aside a paternity judgment, when the request to set aside the judgment is time-barred. The Legislature expressly provided by statute that a challenge to a paternity judgment be made within two years of the child’s birth when the judgment was established through a voluntary declaration of paternity. The legislative history for Assembly Bill No. 252 (2003-2004 Reg. Sess.), which added section 7646, explains: ‘This bill creates a new procedure for a person to challenge a judgment of paternity on the basis of genetic testing showing that the previously established father is not the biological father. The bill addresses the problem of men having inadequate opportunity to challenge a judgment of paternity that serves as the basis for a child support order, leaving them having to pay child support for children who are not biologically theirs. At the same time, the bill creates a procedure intended to ensure that finality is reached in paternity actions within a reasonable period of time, and to protect the interests of a child who may suffer a loss of support, or even of a relationship with the man the child believed to be its father.’ [Citation.]” (Rothert, supra, 155 Cal.App.4th at p. 1260.)
Thus, an order for genetic testing may be made pursuant to section 7646 only if the motion to set aside the judgment of paternity is timely filed. Yoder’s December 2007 motion was not timely under either subdivision (a)(1) or subdivision (a)(3) of section 7646. Consequently, the order for genetic testing cannot be upheld on the basis of that section.
Neither party has identified any other statute that authorizes an order for genetic testing while the paternity judgment remains in full effect. Section 7551 authorizes the court to order genetic tests. That section, however, applies only when the issue of paternity has not been resolved and no final judgment of paternity has been entered. (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1296.)
Code of Civil Procedure section 473, subdivision (b) authorizes the trial court to set aside a default judgment if it was entered against a party through his mistake, inadvertence, surprise or excusable neglect, and if the party’s motion for such relief is brought within a reasonable time, not exceeding six months after the judgment was taken. This section does not authorize genetic testing prior to setting aside the judgment, and genetic testing would not be relevant to determining whether the defendant’s failure to timely respond to the complaint was due to his mistake, inadvertence, surprise, or excusable neglect. Further, genetic testing to support a motion for relief under this provision would be pointless in this case, since Yoder’s motion was brought long past the time period specified in the statute.
Code of Civil Procedure section 473, subdivision (d) authorizes the trial court to set aside any void judgment. It does not authorize genetic testing in connection with a motion to set aside the judgment. A judgment is void on its face if an inspection of the record reveals its invalidity. (Fidelity Bank v. Kettler (1968) 264 Cal.App.2d 481, 486.) A judgment that is valid on its face may be void due to improper service. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1123.) In either case, the results of genetic testing would not be relevant to determining whether the judgment is void and should be set aside.
No authority has been cited for ordering genetic testing in connection with a motion to set aside the judgment on equitable grounds. Defendant did not claim in his motion that any relief granted in the judgment was in excess of the court’s jurisdiction or that the judgment was entered through extrinsic fraud or mistake. He did claim that he stipulated to the judgment because of a denial of due process. He claimed the stipulation form he signed erroneously informed him he could not contest paternity once his default had been entered, and he was not informed of the availability of relief from default; consequently, he felt he had no choice but to sign the stipulation for entry of judgment. Nothing in the record or the arguments of the parties indicates the results of genetic testing would be relevant to determining whether any equitable or due process ground for setting aside the judgment exists. The results of genetic testing would only be relevant after the judgment was set aside and paternity was placed in issue once again.
In its order for genetic testing, the trial court quoted Navarro’s statement that, “[i]t is this state’s policy that when a mistake occurs in a child support action, the County must correct it, not exploit it.” (Navarro, supra, 120 Cal.App.4th at p. 249.) The court concluded that Yoder had been denied due process when the stipulation form advised him he could not contest paternity if he was in default. Based on the general policy statement in Navarro, the court also apparently concluded the mistake should have been corrected by the Department by at least ordering genetic testing. The court ordered genetic testing to remedy that mistake.
Navarro’s statement about correcting mistakes was based on the policy statement set out in the initial section of the Child Support Enforcement Fairness Act of 2000. (Navarro, supra, 120 Cal.App.4th at p. 249.) In that section, the Legislature found, among other things, that “‘[t]housands of individuals each year are mistakenly identified as being liable for child support actions. As a result of that action, the ability to earn a living is severely impaired, assets are seized, and family relationships are often destroyed. It is the moral, legal, and ethical obligation of all enforcement agencies to take prompt action to recognize those cases where a person is mistakenly identified as a support obligor in order to minimize the harm and correct any injustice to that person.’ [Citation.]” (Navarro, supra, 120 Cal.App.4th at p.249.) The Act included provisions designed to implement that policy.
A general statement of policy made by the Legislature in support of contemporaneously enacted statutes cannot override the express provisions of those statutes or of subsequently enacted statutes. The Family Code sets out specific provisions authorizing genetic testing in connection with paternity actions; it sets out the circumstances under which, and the time periods within which, genetic testing may be ordered or a judgment of paternity may be set aside based on the results of such genetic tests. (See, e.g., §§ 7551, 7575, 7646.) The legislative history of the 2004 bill that added section 7646 to the Family Code indicates that, in enacting the legislation, the Legislature considered both the need to provide a previously established father with an adequate “opportunity to challenge a judgment of paternity that serves as the basis for a child support order” and the interests in “ensur[ing] that finality is reached in paternity actions within a reasonable period of time” and “protect[ing] the interests of a child who may suffer a loss of support.” (Rothert, supra, 155 Cal.App.4th at p. 1260, italics omitted.) “Our role as a reviewing court is not to determine whether the Legislature’s policy choices were right or wrong.” (Id. at p. 1262.)
The trial court abused its discretion by ordering genetic testing when such an order was not authorized under the existing circumstances. The statutes authorizing genetic testing in connection with a motion to set aside a paternity judgment specify the time periods within which a motion requesting that relief must be brought. Yoder’s motion was not timely under those statutes. Further, an order for genetic testing would not be justified in connection with a motion to set aside a default judgment under more general statutes or equitable principles, because the results of such testing would not be relevant to establishing grounds for setting aside the judgment; they would only become relevant after the judgment was set aside and the question of paternity was again in issue.
We note that the trial court has not yet ruled on Yoder’s motion to set aside the judgment of paternity. That issue is not before this court and we express no opinion regarding the merits of that motion.
DISPOSITION
The order for genetic testing is reversed. Appellant is entitled to its costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.