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Tate v. Wilburn

April 28, 2010

CATHY A. TATE, PLAINTIFF AND RESPONDENT,
v.
HARI L. WILBURN, DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of San Diego County, Joel R. Wohfeil, Judge. Appeal dismissed; petition for writ of mandate denied; stay of execution vacated; writ of supersedeas vacated. (Super. Ct. No. D330716).

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. INTRODUCTION

In 1991, the trial court entered an order directing Hari Wilburn to pay Cathy Tate $226 per month in child support for their child, A.B. After not having paid any of the ordered support nor having sought to set aside the order, in February 2008 more than 16 years later Wilburn moved to set aside the order on the ground that the trial court had not made a finding that he was A.B.'s father prior to entering the 1991 child support order. The trial court denied the motion. In October 2008, Wilburn filed a renewed motion pursuant to Code of Civil Procedure section 1008, subdivision (b)*fn2 to set aside the 1991 child support order. In his renewed motion, Wilburn claimed that recent genetic testing demonstrated that he is not A.B.'s father, and that the test results constituted new evidence pursuant to section 1008, subdivision (b). The trial court denied the renewed motion.

Wilburn appeals from the trial court's order denying his renewed motion. On appeal, Wilburn argues that the trial court erred in failing to set aside the 1991 child support order because he was never properly served with Tate's underlying order to show cause, the record contains no finding that he is A.B.'s father, and genetic testing performed in August 1998 purportedly demonstrates that he is not A.B.'s father. In the published portion of this opinion, we hold that an order denying a renewed motion pursuant to section 1008, subdivision (b) is not appealable. In the unpublished portion of this opinion, we construe Wilburn's appeal as seeking a petition for writ of mandate, and reject each of his contentions on the merits.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The 1991 Child Support Order

On September 23, 1991, Tate filed an application for an order to show cause and for a temporary restraining order. In her application, Tate requested that Wilburn be ordered not to have any contact with Tate, and that Tate be granted temporary custody of A.B. A judge of the superior court signed the temporary restraining order that day.

In a declaration attached to her application, Tate stated that she and Wilburn had "been separated for the last [four] months." Tate also stated that Wilburn had "punched [her] in the face," and had "threatened to kill [her]." Tate indicated that she and Wilburn had a five year-old child, and requested that Wilburn be ordered to pay child support. Tate listed Wilburn's home address in her declaration, and indicated that both she and Wilburn worked at "Kaiser-Zion."

On September 30, after a hearing that Tate attended and Wilburn did not, the trial court found that Wilburn had been properly served with Tate's application and order to show cause. The court entered a restraining order against Wilburn, awarded Tate custody of A.B., and continued the hearing on Tate's request for child support.

On October 1, Wilburn filed an application for an order to show cause, seeking to modify the restraining order. On October 7, the trial court held a hearing on Tate's request for child support. Tate personally attended the hearing. Wilburn was not present. That same day, the trial court entered an order directing Wilburn to pay Tate $226 per month in child support. On October 28, the court took Wilburn's order to show cause off calendar when neither party appeared at a scheduled hearing on the matter.

B. Wilburn's February 2008 Order To Show Cause To Set Aside The 1991 Child Support Order

In February 2008, Wilburn filed an application for an order to show cause seeking to set aside the 1991 child support order. In a brief in support of his order to show cause, Wilburn's counsel argued that the trial court should set aside the 1991 child support order because the record was "devoid of a prima facie finding of paternity." Counsel also stated that the record did not contain "proof of service of [Tate's] order to show cause upon [Wilburn]."*fn3

Tate filed a brief and a responsive declaration in opposition to Wilburn's order to show cause. In her declaration, Tate stated that she had personally attended a hearing on October 7, 1991 at which the trial court considered her order to show cause seeking child support. Tate stated in her declaration that, at that hearing, "the judge called the case, and indicated on the record that... Wilburn was properly noticed of the hearing, but failed to answer or appear."*fn4 Tate also stated that at the October 1991 hearing, the trial court took testimony regarding "whether... Wilburn was the biological father of [A.B.]," and that the court "made a finding of paternity." Tate also claimed in her declaration that Wilburn "knew about the support order and admitted he knew about it more than fourteen years ago because he received collection correspondence from government agencies and admitted to me that he lost his driver's license for failure to pay support."*fn5

On July 14, the trial court held a hearing at which it heard oral argument from counsel from both parties. At the conclusion of the hearing, the court denied Wilburn's request to set aside the 1991 child support order. On August 22, the trial court entered a written order denying the motion to set aside.

C. Wilburn's Renewed Motion To Set Aside The 1991 Child Support Order

On October 23, 2008, Wilburn filed a renewed motion pursuant to section 1008, subdivision (b), in which he again requested that the court set aside the 1991 child support order. In the motion, Wilburn claimed that "there is new evidence now available that was not available at the time of the hearing on July 14, 2008." With his motion, Wilburn filed his own declaration detailing the procedural history of the case. In the declaration, Wilburn stated:

"Prior to the filing of this motion, my sister tracked down [A.B.] in an attempt to see if she was willing to help me in this matter.... [A.B.] at that time would not get involved nor would she undergo paternity testing then. However, after the court's ruling in this matter, [A.B.] agreed that she would undergo paternity testing with me. On August 26, 2008, I received the results of the paternity testing and I was excluded a[s] the father of [A.B.]. A copy of the testing result is attached hereto and marked as Exhibit A. Based on this new fact which was not previously available to me as [A.B.] previously would not undergo testing earlier this year (she is currently 22 years old and not residing in California) I once again ask this court to set aside the child support order as a I have been excluded as the father of [A.B.]."

Wilburn included a one page "DNA Test Report," from an entity called "DNA Diagnostics Center," with his declaration. The report describes the results of genetic testing purportedly performed in August 2008 on Wilburn and A.B., and states that Wilburn is "excluded as the biological father of the tested child."

Wilburn also offered a declaration from A.B. In her declaration, A.B. stated, "Wilburn never lived with us as a family during my childhood and has never acted like a father to me." A.B. also stated, "My mother has lied to me all of my life saying that [Wilburn] was my father. I now know that he is not, and still do not know who my father is. I am 22 years old. I feel it is very unfair and wrong that my mother is trying to make [Wilburn] responsible for my support. He is not my father and never assumed responsibility as my father."

On December 15, Wilburn's counsel appeared in court and informed the court that Tate's counsel was in trial in Los Angeles. Wilburn's counsel informed the court that Tate's counsel requested that the matter be continued. The trial court responded by stating that it was going to issue a tentative ruling denying the motion, and that Tate need not file a response. The court stated that that it would permit Wilburn's counsel to present oral argument in support of the renewed motion. After hearing argument from Wilburn's counsel, the court indicated that it would deny Wilburn's motion.

On February 11, 2009, Wilburn filed a notice of appeal from the trial court's denial of his October 2008 renewed motion to set aside. On February 25, the trial court entered a written order denying the renewed motion. In its order, the trial court stated in relevant part:

"The court finds that [Wilburn] could have requested a DNA test under Family Code section 7551 (formerly Evidence code section 892) at or before the paternity order was made, but failed to do so.[*fn6 ]

"The court finds that [Wilburn] has waited too long to challenge the court's prima facie ...


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