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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT 

DIVISION TWO 

DEREK WORDEN, 

 Appellant, 

v. 

STEPHANIE AGGAZZOTTI, 

 Respondent. 

 E056456 

 (Super.Ct.No. RDARS040631) 

 OPINION 

APPEAL from an order of the Superior Court of San Bernardino County. John A. 

Crawley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. 

William K. Vogeler, Gruenbeck & Vogeler, for Appellant Derek Worden. 

Christopher R. Abernathy, Christopher R. Abernathy APC for Respondent 

Stephanie Aggazzotti. 
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This is an appeal from a post judgment order in family law proceedings.1 In the 

course of child support modification hearings, the commissioner denied an order to show 

cause without prejudice on grounds that Derek Worden failed to comply with court 

orders. Worden appeals, arguing that he was not properly served with the orders. 

FACTS 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 present 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, accurate 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 continued because Worden had retained counsel 

and discovery was pending. The order concludes: “As ordered at the hearing of 8/11/11 

parties are ordered to file and serve two weeks prior to the next Court date updated, 

accurate and complete income and expense declarations. Failure to comply with this 

 1 The order is appealable under Code of Civil Procedure section 904.1, 

subdivisions (a)(1),(2), and (10). 
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order will result in there being no hearing.” The order also provided: “Notice to be given 

by DCSS.” Proof of service by mail on Worden 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 present. “The court orders parties to file and serve two 

weeks prior to the next hearing updated, accurate and complete Income and Expense 

declarations. Attorney Vogeler is to file a substitution of attorney.” In addition, the order 

after hearing, adds a handwritten order “If the 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 hearing was continued until March 20, 2012. 

On March 20, 2012, Worden and his attorney, 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 comply with the three prior orders, the 

commissioner denied Worden’s requested modification 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 support i.e., three years of payments. 
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COMPLIANCE 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 and 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 permanent 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 proceeding is served, in the same 

manner as the notice is otherwise permitted by law 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. Service on the attorney of record is not sufficient. Since there 

was no proof of such service for the October 6, 2011 and January 3, 2012 hearings, 

Worden contends that the March 20, 2012 order was invalid. 

Respondent Aggazzotti argues that section 215 is irrelevant because it only applies 

to service of the initial post-judgment 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. 
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4809, the court set aside an order terminating 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 filed the post judgment request to modify 

child support, and section 215 is therefore inapplicable. 

We disagree. Section 215 is not limited to the initial post judgment pleading. It 

clearly applies to subsequent orders in the 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, 2011, and January 3, 2012, were not valid 

because they were not served on Worden. 

However, Worden was fully aware of the need to file an income and expense 

statement because he initially filed one with his modification request on January 31, 

2003. He also filed an income and expense statement on May 4, 2009. Worden was 

obviously aware of the requirement that an income and expense declaration be filed, and, 

equally obviously, that a current declaration 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 declaration 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 and expense declaration the previous August. 
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When Worden appeared at the March 20, 2012 hearing, he was reminded of his 

delinquency and the commissioner denied the modification motion accordingly. The 

commissioner clearly did not abuse his discretion in denying the motion which had been 

pending for three years. 

Respondent also argues that, despite the contrary language in the statute, service 

upon attorney Vogeler was sufficient compliance with the statute. She cites Roszovan v. 

Roszovan (1969) 268 Cal.App.2d 902. That case states: “When, however, 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 attorney of record for Worden. To support the 

argument, respondent filed a motion to augment the record on appeal with documents 

consisting primarily of e-mails between the attorneys. 

By order filed January 25, 2013, we denied the motion “without prejudice to 

resubmitting the motion and establishing that the documents attached 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. 

COMPLIANCE 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 parties or a finding of 
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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 appropriate cases, a court may make a finding of 

good cause to refuse to receive live testimony and shall state 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 such testimony would have been ineffective 

and irrelevant without a current income and expense declaration being on file. His 

attorney appeared with him and argued on his behalf. We find no due process violation. 

The commissioner did not make a finding of good cause to receive 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 the right to testify 

in view of his continuing violation 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. 

DISPOSITION

The order denying Worden’s motion to modify child support is affirmed. 

Respondent to recover costs on appeal. 

 5 See California Rules of Court, Rule 5.113, effective January 1, 2013. 
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

RAMIREZ 

 P. J. 

We concur: 

McKINSTER 

 J. 

KING 

 J.