1 Filed 8/7/13 Worden v. Aggazzotti CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELL ATE DISTRICT DIVISION TWO

DEREK WORDEN, Appellant,

v. STEPHANIE AGGAZZOTTI, Respondent. E056456 (Super.Ct.No . RDARS040631)

OPINION

APPEAL from an order of th e Superior Court of San Be rnardino County. John A. Crawley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. William K. Vogeler, Gruenbeck & Voge ler, for Appellant Derek Worden. Christopher R. Abernathy, Christopher R. Aberna thy APC for Respondent Stephanie Aggazzotti.2 This is an appeal from a post judgmen t order in family law proceedings. 1 In the course of child support modifi cation hearings, the commissione r denied an order to show cause without prejudice on grounds that Dere k Worden failed to comply with court orders. Worden appeals, arguing that he was not properly served with the orders.

F ACTS AND PROCEDURAL HISTORY On May 4, 2009, Worden filed a pro per motion for an Order to Show Cause for modification of child support, together with an income and expense declaration. The matter was set for hearing on June 8, 2009. After numerous delays for various reasons , including disposition of other matters, a hearing was held on August 11, 2011. Worden was presen t without counsel. At the conclusion of the hearing, the parties were ordered to “file and serve supplemental declarations two weeks prior to the next Court date. Parties are further ordered to file and serve two weeks prior to the next Court date updated, ac curate and complete income and expense declarations.” On October 6, 2011, another hearing was held but neither party appeared. The minute order states that the hearing was con tinued because Worden had retained counsel and discovery was pendi ng. The order concludes: “As or dered at the hearing of 8/11/11 parties are ordered to file and serve two w eeks prior to the next Court date updated, accurate and complete income and expense decl arations. Failure to comply with this

1 The order is appealable under Code of Civil Procedure section 904.1, subdivisions (a)(1),(2), and (10).3 order will result in there being no hearing.” The order also provided : “Notice to be given by DCSS.” Proof of service by mail on Wo rden was filed on October 24, 2011. 2 The next hearing was held on January 3, 2012. Neither Worden nor his new attorney, William Vogeler, was pres ent. “The court orders pa rties to file and serve two weeks prior to the next h earing updated, accurate and co mplete Income and Expense declarations. Attorney Vogeler is to file a substitution of atto rney.” In addition, the order after hearing, adds a handwritten order “If th e moving party fails to comply with the order as occurred 8/11 and 10/11, then this request to modify shall be denied.” Counsel for respondent was ordered to give notice. However, the proof of service only shows service on attorney Vogeler. The hear ing was continued until March 20, 2012. On March 20, 2012, Worden and his a ttorney, Vogeler, were present. The commissioner pointed out that an income and expense declaration still had not been filed. Attorney Vogeler argued that Worden, who was neither present nor represented at the January 3, 2012 hearing, had not had the order made at that hearing served on him. Nevertheless, based on the failure to co mply with the three prior orders, the commissioner denied Worden’s requested modi fication order without prejudice to refile. 3

2 The Register of Actions for October 26th states: “Proof of service of NRPS by mail service on 10/26/11 as to Derek P. Worden, filed.”

3 The problem with refilling is that Worden would lose the retroactive benefit of his request to modify child suppor t i.e., three years of payments.4 C OMPLIANCE WITH FAMILY CODE SECTION 215 Worden first argues that: “The orders that were the basis of the commissioner’s ruling on March 20, 2012, were not clear a nd not served on Worden as required by Family Code section 215(a). [ 4 ] Therefore, they were not valid.” Section 215, subdivision (a) states: “(a) Except as provided in subdivision (b), after entry of a judgment of dissolution of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a perm anent order in any other proceeding in which there was at issue the visitation, custody, or support of a child, no modification of the judgment or order, and no subsequent order in the proceedings, is valid unless any prior notice otherwise required to be given to a party to the procee ding is served, in the same manner as the notice is otherwise permitted by la w to be served, upon the party. For the purposes of this section, service upon the attorney of record is not sufficient.” Worden contends that the section requires that orders in modification proceedings be served on the party. Serv ice on the attorney of record is not sufficient. Since there was no proof of such service for the Octobe r 6, 2011 and January 3, 2012 hearings,

Worden contends that the Marc h 20, 2012 order was invalid. Respondent Aggazzotti argues that section 21 5 is irrelevant because it only applies to service of the initial post-j udgment pleading. She cites In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033. In that case, decided under former Civil Code section

4 Unless otherwise indicated, all further statutory references are to the Family Code.5 4809, the court set aside an order termina ting spousal support because the notice of motion to terminate child support was not served on the former wife. ( Kreiss at p. 1034.) Respondent here argues that Worden file d the post judgment request to modify child support, and section 2 15 is therefore inapplicable. We disagree. Section 215 is not limited to the initial post judgment pleading. It clearly applies to subsequent orders in th e modification proceedings: “[N]o modification of the judgment or order, and no subsequent order in the proceedings is valid unless . . . .” (§ 215, subd. (a), italics added .) We therefore find section 215 applicable in

this case. Accordingly, the orders of October 11, 20 11, and January 3, 2 012, were not valid because they were no t served on Worden. However, Worden was fully aw are of the need to file an income and expense statement because he initially filed one w ith his modification re quest on January 31, 2003. He also filed an income and expe nse statement on May 4, 2009. Worden was obviously aware of the requirement that an in come and expense declaration be filed, and, equally obviously, that a current declarati on would be needed in order to obtain a

modification. More importantly, Worden was present at the August 11, 2011 hearing in which he was ordered to file an updated declarati on within two weeks. Thus, even though the two subsequent orders were invalid for lack of proper service, Worden knew that he had

been ordered to file a current income a nd expense declaration the previous August.6 When Worden appear ed at the March 20, 2012 hear ing, he was reminded of his delinquency and the commissioner denied th e modification motion accordingly. The commissioner clearly did not abuse his discre tion in denying the motion which had been pending for three years. Respondent also argues that, de spite the contrary language in the statute, service upon attorney Vogeler was sufficient complian ce with the statute. She cites Roszovan v. Roszovan (1969) 268 Cal.App.2d 902. That case states: “When, how ever, the [former] attorney of record is directly contacted and he represents by words or action that he is still the attorney of record , the intent of the amended statute has been complied with.” ( Id . at pp. 906-907.) Respondent attempts to come within the Roszovan case by arguing that attorney Vogeler made it clear that he was the attorn ey of record for Word en. To support the argument, respondent filed a motion to augm ent the record on ap peal with documents consisting primarily of e-ma ils between th e attorneys. By order filed January 25, 2013, we de nied the motion “without prejudice to resubmitting the motion and estab lishing that the documents a ttached to the motion were filed or lodged in the case in the superior court.” No resubmission was made and the denial of the motion stands. Accordingly, we have not considered the proposed documents and, without them, there is no support for respondent’s argument.

C OMPLIANCE WITH SECTION 217 Section 217 provides: “(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the pa rties or a finding of7 good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties. [¶] (b) In appr opriate cases, a court may make a finding of good cause to refuse to rece ive live testimony and shall stat e its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.” 5 Worden argues that the commissioner erred by refusing to allow him to testify at the March 20, 2012 hearing. However, any su ch testimony would have been ineffective

and irrelevant without a current income an d expense declaration being on file. His attorney appeared with him a nd argued on his behalf. We fi nd no due process violation. The commissioner did not make a finding of good cause to re ceive Worden’s live testimony and did not state his reasons for the decision. Nevertheless, the reasons are fairly obvious and Worden was clearly not prejudiced by being denied th e right to testify in view of his continuing viola tion of the August 11, 2011 order. After three years of litigation over Worden’s May 4, 2009 request to modify child support, the trial court did not abuse its discretion in denying the motion.

D ISPOSITION The order denying Worden’s motion to m odify child support is affirmed. Respondent to recove r costs on appeal.

5 See California Rules of Court, Ru le 5.113, effective January 1, 2013.8 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

KING J.