By Andrew Tran, Esq.
One of the common mistakes that parties can make is picking and choosing which court hearings to attend and how they attend those hearings. There are two common types of appearances: a general appearance and a special appearance. This article discusses the difference between the two types of appearances and the significance that your appearance type may have on your divorce, paternity, child support, spousal support, inter-state family law, domestic violence, or other family law matter in Orange County, California.
General Appearance
A general appearance occurs when the responding party takes part in the action or in some manner which recognizes the authority of the court to proceed. Such participation operates as consent to the court’s exercise of jurisdiction in the proceeding and waives all objections based on lack of personal jurisdiction, defective process, or service of process. This can be accomplished in a couple of the following ways: filing responsive documents or an appearance in court. Depending on when and how a party responds can have a significant legal impact upon the responding party.
Once the Orange County Family Court has “personal jurisdiction” over a respondent, the Court can make any orders relevant to that case such as child support, division of community and separate property, attorney fees, and child custody orders.
One recent case exemplifies the consequences that can be incurred if a party decides to respond too quickly.
Marriage of Obrecht (DCA 6) p. 114
In the recent case of Marriage of Obrecht, Husband and Wife were married in California in 1978. In 1993, they moved to Chile. They then separated in 1995. Since 2010, Husband lived in New York and had little contact with Wife or with California. In November of 2012, Wife filed a Petition for Dissolution of Marriage in California. Wife filed a motion for spousal support and attorney’s fees which was set for January of 2013. Wife served Husband in NY to which he signed an acknowledgment of receipt. Husband did not appear for the hearing in January of 2013, and the court made orders for spousal support and attorney’s fees. In April of 2013, Wife filed a motion to determine spousal support arrears since Husband was not paying. Husband appeared in court. The court determined the arrears and ordered Husband to pay $100/month on the arrears. In July of 2013, Husband moved to quash service of process for lack of jurisdiction and to set aside the earlier orders in January of 2013. Husband claimed that Wife had not lived in California the previous 6 months to her filing of the Petition. The court denied Husband’s motion to quash not because of the jurisdictional issue but because Husband appeared on the April 2013 hearing date but didn’t challenge the jurisdictional issue at that time. Instead, Husband argued the “merits” of the support arrears motion. The court effectively stated that Husband made a general appearance and waived his argument that the court lacked jurisdiction over him.
You can find the opinion here: http://law.justia.com/cases/california/court-of-appeal/2016/h040827.html
Special Appearance
A special appearance is the only way to preserve objections to personal jurisdiction. For example, the party must make an appearance for the sole purpose of objecting to the court’s jurisdiction. This has to be clearly stated. The record must reflect such a special appearance claim.
Jurisdiction is not the only issue that can be raised by a special appearance. Defective service of process can also be raised by special appearance.
To analyze Marriage of Obrecht further, Husband was served with the paperwork for the January 2013 hearing by mail on 12/10/2012. Per California Code of Civil Procedure § 1005, due to Husband residing out of the state (NY), he was entitled to 16 court days plus 10 additional days notice. This meant that Wife should have served Husband by mail on 12/3/2012. She was effectively 1 week late. However, Husband never raised this defective service of process at the April 2013 hearing. He objected in July of 2013, but by then, he had already made a general appearance at the April 2013 hearing. The court noted that for a claim to be preserved such as defective notice, the objection must be raised at the earliest opportunity (April 2013 hearing) and accompanied by some indication of prejudice. Instead, Husband appeared at the April 2013 hearing only to object to the January 2013 order on the merits.
It is important to note that if you ask the court for any relief other than to quash service, you waive your challenge to jurisdiction. Any relief could also include a request for a continuance. It has to be very clear that it is a special appearance.
Don’t make the same mistake. Call or email our office to schedule a free consultation today with one of our attorneys at Wilkinson & Finkbeiner, LLP to discuss how we can help you today.