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Service of Process Snafu Slows Annulment Case – In re Marriage of Herrera and Wiebe

We spend a lot of time on this blog discussing some of the complicated and intricate legal issues that arise in a variety of family law cases. Sometimes, however, it’s more basic matters that can gum up the works. That includes matters like service of process, as California’s Fourth District Court of Appeals recently explained.

paper-2-828750-mWife filed for an annulment of her marriage to Husband and for a permanent restraining order against him in June 2010. A trial court initially entered a default judgment against Husband when he failed to respond to the petition and restraining order. It set the ruling aside a month later, however, after Husband said he was never served with the paperwork. A person being sued for divorce or annulment must be properly served in order to be required to respond and show up in court. Although a process server said he and another server properly served the petition and restraining order, the judge found that his testimony wasn’t credible. “I didn’t believe a word the man said,” the judge concluded. Husband also provided information showing that he didn’t live at the address where the documents were supposedly served.

On appeal, Wife argued that the trial judge didn’t allow her to provide certain evidence necessary to prove that Husband had been properly served. She claimed in particular that she had planned to call the second process server as a witness at an earlier hearing that the trial judge ultimately rescheduled due to illness. But the Fourth District found that Wife wasn’t prejudiced by the scheduling change. “The problem with [Wife]’s claim is that she fails to identify what ‘important information’ was not produced and what ‘vital testimony’ was not provided that would have changed the outcome,” the Court said.

The appeals court also rejected Wife’s claim that the trial judge wrongly entertained a request by opposing counsel to subpoena her cell phone records based on the assertion that she was improperly sending text messages to witnesses at the hearing. The Court noted that the trial judge had given Wife “considerable leeway” during the hearing, including by allowing her to introduce evidence regarding accusations that Husband was a homosexual and had committed domestic violence against her. Neither of those matters was relevant at the time, the Court said, since the hearing to set aside the default judgment focused solely on whether Husband had been served with the paperwork. “In contrast, [Wife]’s text, which allegedly involved manipulation of witnesses’ testimonies for the hearing, was arguably relevant to [Husband]’s motion to set aside default,” the Court determined.

Finally, the Court also rejected Wife’s argument that the address information submitted by Husband at the hearing was fraudulent. It said it wasn’t able to evaluate this charge because the documentation wasn’t part of the record on appeal. The Court also noted that credibility determinations regarding evidence and witness testimony are usually within the discretion of a trial judge.

It’s important to note that the Court here simply affirmed the decision to set aside a default judgment against Husband. Wife can still seek the annulment and restraining order, but she will have to prove that she’s entitled to both.

If you’re considering seeking a divorce in California, contact San Jose divorce lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of issues on optimal terms. Call our office at (408) 297-0700 or contact us online to schedule a consultation.

Related blog posts:

In Divorce Cases, It’s ‘Speak Now or Forever Hold Your Peace’ – In re Marriage of Geiger

Pre-Divorce Agreements and Financial Disclosures in California Divorce Cases – In re Marriage of Evans

Spouse Accuses California Divorce Judge of Sex Discrimination – In re Marriage of Goodpaster