In Re Marriage of Olson Presents a Conundrum That Should Be Addressed by the Legislature

• Publication year: 2017
• Author: Roger Rombro

In Re Marriage of Olson Presents a Conundrum that Should be Addressed by the Legislature

Roger Rombro

S. Roger Rombro, CFLS, is a graduate of the University of Pennsylvania and Tulane University School of Law, where he studied comparative law. He clerked for United States Ninth Circuit Judge Stanley Barnes after law school. He was a Deputy District Attorney for the County of Los Angeles. After an extensive civil and criminal trial practice, he focused on family law. He served for over 20 years on the State Bar's Los Angeles Regional Standing Committee for children's issues, and thereafter he served as a member of the Executive Committee of the Family Law Section of the State Bar. He is a frequent lecturer and materials author for family law, ethics and trial advocacy for the National Business Institutes.

In In re Marriage of Olson¹ the Second District Court of Appeal held that a mother in a post-judgment dissolution of marriage proceeding had standing to seek a modification of child custody and child support, notwithstanding that she had been defaulted. The court ruled that it was unnecessary for her to first seek relief from default for the trial court before the court could address the merits of her requested relief because the trial court had continuing jurisdiction over the minor children, relying upon Family Code section 3087. Recognizing a trial court's indisputable continuing jurisdiction over minor children, the panel dispatched the father's objection to the mother's lack of standing by concluding that nothing in the Family Code, and certainly not in section 3087, either states or suggests that a defaulted parent should be prevented from seeking a modification of a custody or child support order.²

The justices held, that "[t]o the extent that this provision (section 3087) conflicts with the general rules applicable to default judgments, the 'general ... provision must yield to one that is special' (citation),"³and there is nothing more special than issues relating to the best interests of minor children. In reaching this decision, they concluded that since a family law trial court's priority is to address issues in which the best interests of minor children are presented, any civil rules relating to default and to standing which may otherwise apply, are necessarily trumped by the public policy which focuses on minor children. The Olson opinion states:

"The supervision of the custody of children is fundamentally different from other court functions. The court's primary concern must be the well-being of the children, not the preferences of the parties themselves. (Citations.)"⁴

Olson's holding is contrary to the law as it has existed in California since 1850. Moreover, since California adheres to the doctrine of stare decisis, the Olson opinion is in direct conflict with at least seventeen published opinions in which defaulted parents were denied relief from default in their marital actions and therefore did not have standing to seek relief in the trial courts.⁵ This article addresses these conflicts.

The Olson opinion presents a clear, reasonable, and economical means by which family law courts may best address the interests of minor children in default actions. However, since Olson has created a conflict with other appellate cases, the Legislature may need to enact a Family Code provision to implement Olson and provide authority for those instances in which minor children's interests still need to be addressed by defaulted parents.

1. The Olson Opinion Avoided Two Unreconciled, Mutually Exclusive Policies.

Since at least 1893, the California Supreme Court and the California Courts of Appeal have followed two seemingly parallel but never intersecting rules that Olson apparently assumed were convergent. One rule is that trial courts do not have subject matter jurisdiction to address relief sought by defaulted parties in marital actions, irrespective of whether the action involved children, because there was no controversy to be adjudicated. The second rule is that the public policy of this state is that in Family Code actions, trial courts have continuing jurisdiction over issues relating to children until their majority. As noted, there are at least seventeen appellate opinions that have addressed the reasonableness of trial court orders that had either granted or denied motions for relief from default under section 473 of the Code of Civil Procedure. Each of these opinions arose in marital actions that involved children.

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Not one of these opinions suggested that, perhaps because of the state's public policy that trial courts have continuing jurisdiction over child custody and child support, a party's default should either be ignored, or, if relief from default was sought, perfunctorily set aside. These cases hold to the contrary. Rather than refer to the state's public policy for retention of jurisdiction over children, the cases hold that trial courts are required to address the Legislative predicate upon which relief from default can be granted, i.e., mistake, inadvertence, surprise or excusable neglect .... "⁶

The focus in these opinions was succinctly stated thus: "It is settled however, that a defendant in a divorce proceeding does not have a right to set aside a default as a matter of course."⁷ In Berset v. Berset,⁸ the authority upon which the Fayed court relied in making this observation, the appellate court affirmed a trial court's denial of a section 473 motion brought by a defaulted parent with the following: "The matter of the child's custody, of course, was...