Opposition — Fehlhaber v. Fehlhaber

NO. 83- MEAANDER i. STEVA

in the

Supreme Court

of the

United States

October Term, 1982

ROBERT F. FEHLHABER, as Persona! Representative of

Fred Robert Fehlhaber, deceased,

Petitioner,

US.

VERONE MARIN FEHLHABER,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

WOODROW “MAC” MELVIN, JR. MAX FINK

PATRICIA E. COWART Suite 700

RUDEN, BARNETT, McCLOSKY, 9777 Wilshire Boulevard

SCHUSTER & RUSSELL, P.A. Beverly Hills,

California 90212

Suite 2020

(213) 272-9181

One Biscayne Tower

Two South Biscayne Boulevard

Miami, Florida 33131

305) 371-6262 . ;

(305) 371-626 Counsel of Record

Of Counsel For Respondent

TABLE OF CONTENTS

Page

TARLE OF CONTENTS |. «200-552-5222 50 0200 i

TABLE OF AUTHORITIES ........---+-++:++:> ili

STATEMENT OF THE CASE ........-.------>> 1

STATEMENT OF FACTS ......--+++-+--+>: 2

THE PROCEEDINGS BELOW .........-----: 8

THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED .......... 10

I THE COURT OF APPEALS CORRECTLY

APPLIED THE PRINCIPLES OF DUE

PROCESS AND FULL FAITH AND CREDIT

IN REJECTING EACH OF THE THREE

PURPORTED ERRORS AS A BASIS FOR

COLLATERAL ATTACK .........---->- 10

A. The California Judgment On Property

Rights Was Based Upon Testimony And

Evidence Properly Presented And In

Any Event The Method Of Proving

Damages May Not Be Collaterally

ee es ee ene ee 17

TABLE OF CONTENTS (Continued)

Page

B. The Petition Filed In California

Encompassed A Demand For A Cash

Offset And The California Court Has

Complete Discretion To Award Assets

To One Spouse And An Equal Cash

Award To The Other Which Discretion

Was Properly Exercised Under The

Circumstances Presented. ........... 21

C. Petitioner Could Have Appealed From

The California Judgment If He Felt There

Was Error But May Not Now Launch A

Peaterel BUMMER, 2. w 6 ee eee ee 25

IIT SUMMARY JUDGMENT WAS PROPER IN

THE FEDERAL TRIAL COURT.......... 28

eR ie en oe Re A ae 29

TABLE OF AUTHORITIES

Cases Page

Addison v. Addison,

62 Cal. 2d 558, 43 Cal.Rptr. 97, 399 P.24 897 (1965) .. 25

American Surety Co. v. Baldwin,

987 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 yo 24

Automated Medical Laboratories, Inc., v. Armour

Pharmaceutical Co.,

629 F.2d 1118 (5th Cir. 1980) ......----- eee eens: 26

Badillo v. Badillo,

123 Cal.App. 3d 1009, 177 Cal.Rptr. 56 (1981)... 22, 23

Baird v. Smith,

216 Cal. 408, 14 P.2d 749, oe 18

Bass v. Hoagland,

172 F.2d 205 (5th Cir. 1949) cert. denied,

ee Se at ee es ee 20, 21

Becker v. S.P.V. Construction Co. Inc.,

97 Cal. 3d 489, 165 Cal. Rptr. 825,

619 P20 O15 (1000) . . . .. os eet tte 9, 23

Buck v. Morrossis,

114 Cal.App. 2d 461, 250 Oa O76 (1068) ......---- 19

Buller v. Buller,

62 Cal.App. 2d 981, 145 P20 649 (1943) ....-....--- 8

Chicot Co. Drainage Dist. v. Baxter State Bank,

308 U.S. 371, 60 S.Ct. 317, 84 1a. S20 01080)... ...- 27

Compton v. Alton Steamship Company,

608 F.2d 96 (4th Cir. 1979) ......---- eee ees 10, 11, 26

Cooper v. Cooper,

269 Cal.App. 2d 6, 74 Cal.Rptr. 439 OD gv acs ees 4

TABLE OF AUTHORITIES (Continued)

Cases

Davis v. Davis,

305 U.S. 32,59 S.Ct. 3, 838 L.Ed. 26 (1938) ..........

Durfee v. Duke,

375 U.S. 106, 84 S.Ct. 242,

RR

Elgin National Watch Co. v. Barrett,

le eg oN ie

In Emmett v. Emmett,

109 Cal.App. 3d 753, 169 Cal.Rptr. 473 (1980) ......

Forbes v. Cameron Petroleums, Inc.,

83 Cal.App. 3d 256, 147 Cal.Rptr. 776 (1978) ......

Gibson v. Berryhill,

411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed. 2d 488 (1973) ...

Gray v. Hall,

Ak I, Se PO AED 5 nw 5 ov es een ns

Hamblin v. Superior Court,

eR Re et

In re Marriage of Clark,

80 Cal.App. 3d 417, 145 Cal.Rptr. 602 (1978) .......

In re Marriage of Connolly,

23 Cal. 3d 590, 153 Cal.Rptr. 423,

Coke

In re Marriage of Fink,

25 Cal. 3d 877, 160 Cal.Rptr. 516,

eA ea re erro een

In re Marriage of Lusk,

86 Cal.App. 3d 228, 150 Cal.Rptr. 63 (1978) ........

iv

TABLE OF AUTHORITIES (Continued)

Cases Page

In re Marriage of Roesch,

83 Cal.App. 3d 96, 147 Cal.Rptr. 586 (1978),

cart. denied, G00 U.S. DIG UGTS) . .. ee eee es 25

In re Marriage of Winn,

98 Cat. App. 3d 263, 159 Cal.Rptr. 554 (1979) ....... 25

Jones vu. Moers,

OF Cal Ane. G5, 206 ©. GEL IGEs) . .. .. «a ee ss 7,18

Kremer v Chemical Construction Corp.,

456 U.S. 461, 102 S.Ct. 1883,

pe PP ee Theo

14, 15, 20

McKim v. McKim,

6 Cal. 3d 673, 100 Cal.Rptr. 140,

ae a I ge 71,8

M’Elmoyle v. Cohen,

eG ee 2 Ee AT CE wn i ee ee ee cos

Mills v. Duryee,

7 Cr. 481, 3 L.Ed. 411 (1813)....... ae) ee

Montana v. United States,

440 U.S. 147, 99 S.Ct. 970,

Oy ta tT sw sac sae eeese ee aan 14

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ...... 24

Phillips v. Phillips,

152 Cal.App. 2d 582, 313 P.2d 630 (1957) .......... 24

Pope v. Pope,

102 Cal.App. 2d 353, 227 P.2d 867(1951).......... 24

TABLE OF AUTHORITIES (Continued)

Cases Page

Richee v. Gillette Realty Co.,

Of Cal. Aue. Gea, cio Fr. 477 (IBRD)... we ee 19

Sherrer v. Sherrer,

334 U.S., 348, 68 S.Ct., 1087,

ee eck ck le 14, 16

Stoll v. Gottlieb,

305 U.S. 165, 50 S.Ct. 134,

Opti eee ec, 16, 24

Tedder v. FMC Corp.,

ee A a) 26

Tomlinson v. Lefkowitz,

334 F.2d 262 (5th Cir. 1964),

pg a ee 26

Underwriters National Assurance Company v.

North Carolina Life and Accident,

455 U.S. 691, 102 S.Ct. 1357,

(2, 11, 15, 16, 20

U.S. v. Indiana Bonding and Surety Company,

oo ge ee ee 26

Uva v. Evans,

83 Cal.App. 3d 356, 147 Cal.Rptr. 795, (1978) ....... 19

Walling v. Miller,

138 F.2d 629 (8th Cir. 1943) cert. denied,

Wt Cre, FOE OE ow ooo ee ee pcc ea ecu 24

Weinberg vu. Weinberg,

67 Cal. 2d 557, 63 Cal.Rptr. 13, 432 P.2d 709 (1967).. 24

vi

TABLE OF AUTHORITIES (Continued)

Cases Page

Wilkinson v. Wilkinson,

12 Cal.App. 3d 1164, 91 Cal.Rptr. 372 (1970) ....... 23

Zorro Investment Co. u Great Pacific Securities Corp.,

69 Cal.App. 3d 907, 138 Cal.Rptr. 410 (1977) ..... 18, 19

Statutes

AEN 7 I A re ne en 8

ev Vis eek 9, 12, 14

RF no cence cnc eases 11, 21

Oe re on nice iccs se: 17

Cal. Civ. Code §2033 ..... ee 7,18

RE cae tees sacs. 7

ne 17

ee 6, 22, 24

Ce 25

A I 4

Rules

Federal Rule of Civil Procedure, Rule 60 ............. 11

Other Authorities

7 MOORE'S FEDERAL PRACTICE ................ 13

Vii

NO. 83-

in the

Supreme Court

of the

United States

October Term, 1982

ROBERT F. FEHLHABER, as Personal Representative of

Fred Robert Fehlhaber, deceased,

Petitioner,

VS.

VERONE MARIN FEHLHABER,

Respondent.

STATEMENT OF THE CASE

In an attempt to convince this Court to grant the Petition

for Writ of Certiorari, Petitioner (hereinafter “Fred”)' has

presented a version of the “facts” colored with innuendo

‘Fred Fehlhaber, the Defendant in the California state court proceeding

and the Florida federal action, was the husband of the Respondent,

Verone Fehlhaber. Fred died in 1980 during the pendency of the appeal

(six years after the commencement of the California action) and Robert F.

Fehlhaber, the personal representative in probate proceedings, was

substituted. However, for the sake of clarity, this Brief will continue to

refer to Petitioner as Fred.

and inaccurate or incomplete statements. Petitioner portrays

himself as a hapless victim “caught in a mesh of procedural

complexities” due to the preclusive effect given to a California

default judgment awarding his ex-wife (hereinafter “Verone”)

a cash award equal to one-half of the value of community

and quasi-community property alleged in her complaint.

However, as stated by the Fifth Circuit:

Fred's equitable position is not so strong as he

asserts. He was given full and proper notice of the

California proceedings, specially appeared to contest

jurisdiction, lost on this issue, and then ignored

the proceedings. He did not act in ignorance but

rolled the dice and lost.

(App. at B-3.)?

This reply brief will provide a statement of the facts

and correct some of the inaccuracies contained in the Petition.

Once the full statement of facts and procedural background

is before the Court, it becomes abundantly clear that this

case does not warrant the exercise of discretionary jurisidiction

requested by Petitioner. No novel issues of constitutional

law are presented by this case nor does the Fifth Circuit’s

opinion conflict with decisions by the Fourth Circuit or any

other circuit. Rather, the opinion is perfectly consistent

with the well recognized principles of full faith and credit

which bar collateral attack of all valid judments including

default judgments.

Statement of the Facts.

Petitioner’s characterization of the parties and the

California state court proceedings contain repeated, flagrant

misstatements of facts. While Petitioner begins his statement

*All citations to the Appendix refer to the Appendix submitted by

Petitioner and are herein abbreviated “App.” The Joint Appendix submitted

to the Court of Appeals is designated as “Jt.App.”

of facts with an uncontested statement, to-wit, that the

parties were married in New York in 1961, he quickly deviates

from the actual set of circumstances as found by the California

court and makes a de novo argument of “facts” notwithstanding

the state court’s contrary holdings.

Respondent, Verone, instituted proceedings in the California

state court for legal separation, spousal support, attorney

fees, costs and determination of property rights on May 17,

1974. Fred was personally served with process and appeared

specially to contest jurisdiction, alleging that he was a resident

of Florida, not of California. (Jt.App. at 21.) Both Fred and

Verone presented evidence on the issue of residence and

jurisdiction in the California proceeding.’

’Verone’s evidence showed that until 1961 she was a resident of

California. During that year, Verone married Fred in New York. In the

year 1968, Verone and Fred moved to California. While in California, they

arranged for the sale of their New York home, which was concluded in

1969. From 1968 to their separation, the parties spent most of their time

in California. (App. at A-2.) Their move to California was motivated by

the fact that Fred suffered from severe emphysema and the humidity

conditions on the east coast made his condition only worse. (Contra,

Jt.App. at 24.) Specific evidence of Fred’s contact with California included

the fact that Fred instituted litigation in California courts alleging his

residency in California (Jt.App. at 19), maintained bank accounts (the

California court finding that Fred had absconded with $100,000 from one

California bank account, Jt.App. at 132) and memberships in country

clubs and other social clubs in California, and transacted business in

California. Fred and Verone retained two year-round servants in California,

had two automobiles in California and their personal physicians were in

California. For the most part, their friends were in California. Verone

also submitted evidence that Fred had no business interests in Florida,

although he directed some of the activities of Feh!haber Corporation, a

New York operation, from California and elsewhere.

that in April, 1974, after their winter

Verone also presented evidence

e would

in Florida, Fred told Verone to return to California, and that h

meet her there later. After Plaintiff returned to California, Fred informed

her over the telephone that he never wan’ -d to see her again. Because of

Fred's statements, Verone filed an action for legal separation on May 17,

1974, truthfully stating that the parties were California residents.

(Continued on Page 4)

On July 15, 1974, the California court, after considering

extensive declarations and documentation, and despite Fred's

intensive arguments,‘ denied his motion to quash service

and held that California had jurisdiction because the parties

were residents of California. (Jt.App. at 58.) The court

determined that it was not necessary to and did not rule on

the issue of whether Fred was also a domiciliary.°

(Footnote 3 Continued)

Certain of these assertions by Verone do not appear of record in the

federal action though Fred's responses to each of the assertions appear at

Jt.App. pages 23-28 and 33-57. Fred contested Verone’s version of the

facts but the California trial court clearly believed Verone’s evidence to

be more credible and convincing.

‘See, Jt.App. 23-28, 33-57 containing Fred's version of the facts

regarding residency. In the Petition for Writ of Certiorari, Fred’s version

is presented as “fact” and not as argument notwithstanding the prior

adjudication rejecting his contentions. In contrast, Respondent has attempted

to identify for the Court matters which are disputed and which cannot be

deemed to be “facts” per se.

*See App. at A-26, n.25 and accompanying text: “This issue [whether

Fred and Verone were domiciled in California] was disputed by the

parties in the California Court when Fred made a special appearance to

quash summons but was never adjudicated. The court ruled that Fred

was a resident and that this was sufficient under California's long arm

statute, even in matrimonial cases. No ruling was made whether Fred

was a domiciliary.” (emphasis supplied.) Following the holding that the

Court did have jurisdiction and Fred’s default, Fred never challenged the

holding that residence alone was sufficient to exercise jurisdiction and in

_ fact Fred no longer contests the propriety of the California court's exercise

of personal jurisdiction over him. (App. at C-6.) Moreover, under California’s

community law, residence and domicile are synonymous. Cooper uv. Cooper,

269 Cal.App. 2d 6, 74 Cal. Rptr. 439 (1969). See also California Civil Code

§5002 (maintenance of a residency in California, although departed from

the state, is prima facie evidence that the person was domiciled in

California). Thus, Fred's continued contention that the Court specifically

held he was not a domiciliary is inaccurate and in any event is of no

consequence in light of subsequent events.

Thus, Petitioner’s statement that the parties “resided

together in Florida from 1967 until April 1974, when respondent

left Fred and went to California” is simply an incorrect,

self-serving argument, contrary to the conclusions reached

by the California court. Fred did not take an appeal from

that California determination but instead simply ignored or

evaded all subsequent California proceedings. Having lost

on the jurisdictional issue, Fred apparently felt that he had

nothing further to gain inasmuch as California law requires

that the court make an equal distribution of assets regardless

of fault. However, Fred received timely notice in each instance

of all subsequent proceedings.’

Six days after being served with the California Summons

and Process, Fred filed for divorce in the State of Florida.

(Jt.App. at 9.) Verone immediately obtained and served

upon Fred a restraining order against Fred which prohibited

him from prosecuting the Florida action. (Jt.App. at 59-60.)

‘Fred's choice to take no further part in the California proceeding,

once California determined it had jurisdiction, was arguably only because

he had nothing to gain by further appearances and contest. Since the

court determined that the parties were residents of the state, Fred could

not have prevented a division of community and quasi-community assets.

Fred may also have feared contempt citations from the California court

for his violation of the California court’s restraining order relative to his

Florida proceeding and for his willful failure to provide support to Verone.

Furthermore, Fred had previously removed all tangible and intangible

assets (except household furniture and furnishings) to New York and

Florida. It is certainly conceivable that Fred feared that if he made a

further appearance in California, additional proof may have been made

regarding existence of additional community assets, especially in foreign

banks over and above that which Verone had knowledge of and adduced

in the California proceeding.

‘Verification of all notices given to Fred and his attorneys of all

California proceedings are contained in the record of the District Court

and specifically in the Affidavit of R. Stephen Duke (incorrectly identified

on the docket sheet, Jt.App. p.2, as Stephen P. Duke) filed on February

27, 1978 in the District Court.

Fred and his California attorney, as well as his Florida

attorney, were personally served with a copy of the California

restraining order. Notwithstanding such order and in defiance

thereof, on July 23, 1974, Fred obtained a Florida default

judgment of dissolution of marriage, which only dissolved

the marital res. The Florida decree did not decide or rule on

any of the remaining property or support matters. (Jt.App.

at 62.) Moreover, contrary to Fred’s assertion made on

page 4 of the Petition, the Florida decree was not ever made

an issue by Fred in the California proceeding. (App. at C-16.)

On March 18, 1976, the California court entered its

Judgment on Reserved Property Issues, determining, by its

specific findings of fact and conclusions of law, and, based

upon the evidence before it, that community and quasi-

community property had a value of $19,000,000 and awarded

Respondent one-half thereof in cash as her share of the

property pursuant to California Civil Code, Sections 4800

and 4800.5. (Jt.App. at 119-132.) Although Petitioner was

served and had actual notice of each order and judgment, he

took no action in California to contest or appeal from the

specific findings of fact, conclusions of law, orders or judgments.

It is also a fact that the Judgment on Reserved Property

Issues was based upon documentation and testimony obtained

from, among others, Fred’s business agent (who also managed

the parties’ business located in New York) at his deposition

concerning the parties’ property and assets. Based upon

testimony and evidence including financial statements

circulated by Fred in order to obtain contracts in New York

‘Fred continues to maintain by footnote 2 of his Petition that the

Florida divorce divested the California court of subject matter jurisdiction

over Verone’s action. The Fifth Circuit soundly rejected this argument.

See App. at A-7 to A-11. In re Marriage of Lusk, 86 Cal.App. 3d 228, 150

Cal.Rptr. 63 (1978) and related cases cited by the Fifth Circuit’s opinion

make unequivocally clear that Petitioner's argument is absolutely spurious.

on large public installations, Verone prepared a Request for

Admissions of Fact and served these on Fred. (Jt.App. at

86-98). The majority of the individual assets identified on

the Request were listed and quoted securities and cash.

Petitioner failed to respond or answer the Requests.

Accordingly, pursuant to California law (Code of Civil

Procedure, Sections 2033 and 2034), Respondent moved the

California court to have the Request for Admissions deemed

admitted as to the values and specific description of the

assets. (Jt.App. at 112-116.)

As stated by the Circuit Court, “Fred was given specific

notice that Verone intended to have the request for admissions

deemed admitted by his failure to respond.” (App. at B-3.)

Petitioner’s statement that as a defaulting party he was

prohibited from responding to those requests is merely a

conclusory allegation based upon a misstatement of California

law.’ His default and failure to answer did constitute an

admission that all facts recited in Verone’s pleading were

true.

Finally, it is absoutely uncontested that at no point did

Fred move to vacate, amend or otherwise contest the California

judgments at the trial court level. Fred also chose not to

take an appeal from that judgment or any one or more of the

orders, judgments, or specific findings of fact or conclusions

of law of the California court.

*As will be discussed more fully in the section regarding “Method of

Proof”, the case relied upon by Petitioner, Jones v. Moers, 91 Cal.App. 65,

266 P. 821 (1928) does not stand for the proposition that a defaulting party

may not file any pleadings. The holding in Jones is only that an answer or

pleading filed after the date of default responding to the complaint itself

is a nullity. See, Forbes v. Cameron Petroleums, Inc., 83 Cal.App. 3d 256,

147 Cal. Rptr. 766 (1978). Cf McKim v. McKim, 6 Cal. 3d 673, 100 Cal.Rptr.

140, 493 P.2d 868 (1972) (in a proceeding on a petition for dissolution of

marriage, testimony of a defaulting respondent is not inadmissible).

The Proceedings Below.

Succinetly stated, the proceedings in the Southern District

of Florida were simple collection proceedings initiated by

Verone pursuant to 28 U.S.C. §1332 to enforce the California

judgments. The District Court determined that pursuant to

principles of full faith and credit Verone was entitled to

summary judgment” for $516,750 for unpaid support together

with unpaid costs and attorney’s fees and for $12,114,991.41

consisting of the cash award, attorney fees, costs and interest.

(App. D.)

Fred appealed from the district court judgment in favor

of Verone and the Fifth Circuit at first reversed the judgment

in part by a vote of two-to-one. (App. C.) That first opinion

was based primarily on the Circuit Court’s interpretation of

a California case, Buller v. Buller, 62 Cal.App. 2d 687, 145

P.2d 649 (1949), which it felt allowed a collateral attack

pursuant to California law. In reliance upon Buller, the

Circuit Court initially characterized the California proceeding

as non-statutory and therefore in excess of the state court's

power on the misapprehension that the prior judgment in

the Florida proceeding had divested the California court of

jurisdiction. The dissent indicated that the Florida judgment

“Fred continues to vigorously argue that entry of summary judgment

was in and of itself error because Fred was not “allowed” to take discovery.

This is a gross misstatement of the proceedings below. Fred did notice

Verone’s deposition to be taken in Miami, Florida. Verone filed a motion

for a protective order based in part upon her well founded fear of

physical violence. The Court ruled that Verone need not appear for

deposition in Florida until one week before trial. (Jt. App. at 1, entry of

June 8, 1977.) However, at no time did the trial court prohibit Fred from

taking Verone’s deposition in California or otherwise prohibit Fred from

serving discovery upon her in terms of interrogatories, requests to produce

or requests for admissions. Additionally, Verone’s attorneys noticed and

did take her deposition in California in the federal proceeding (Jt. App. at

2, entry of February 27, 1978) but Fred and his attorneys chose not to

attend. Thus, the assertion that Fred was not “allowed” to take discovery

is an absolute mischaracterization of the actual proceedings below.

was not raised as a defense in the California proceeding and

that the California judgment was res judicata.

On petition for rehearing, the Fifth Circuit concluded

that its original decision was incorrect, withdrew the opinion

and substituted the opinion found in Appendix A. The Fifth

Circuit upheld the District Court’s order as modified."

On rehearing, the Circuit Court held that under the full

faith and credit provision of 28 U.S.C. §1738 it was required

to determine whether the California judgment was subject

to collateral attack under the “basic limitations of federal

law” (due process) or under California law. The Court correctly

concluded that the California court initially had properly

obtained jurisdiction and that the prior Florida divorce did

not divest the California court of continuing jurisdiction

under the California statute. The Court also held that the

California court did not exceed its power or jurisdiction in

granting an entire cash offset and that the cash award was

not subject to collateral attack; that the method of proof

was not subject to collatera! attack; and that the issue of

jurisdiction over alleged quasi-community property was not

properly preserved for appeal inasmuch as Fred’s oblique

reference to a purported constitutional challenge was

abandoned and never briefed or argued below. Each of

these holdings was thoroughly explained by the Court of

Appeals and will be discussed more fully, infra.

In short, the Court recognized the vital purpose underlying

the principles of full faith and credit and res judicata that

"The Court limited the amount of the property judgment to cash in

an amount equal to $7,500,000 or one-half of the largest amount pleaded

in the Complaint (or “Petition” as it is labeled in California). This cured

any arguable error as alleged by Fred that the relief granted exceeded

the prayer for relief. See Becker v. S.P.V. Construction Co., Inc., 27 Cal.

3d 489, 165 Cal.Rptr. 825, 828 (1980) (discussed infra). Respondent does

not wish to take issue with that determination by the Fifth Circuit.

rulings must be given full recognition and finality to avoid

repetitive burdensome litigation. Fred, by refusing to

participate in California proceedings or to appeal from any

facet thereof, was deemed to have lost the right to now,

many years later, challenge the propriety of the judgment

by collateral attack.

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED

I

The Court of Appeals Correctly Applied the Principles

of Due Process and Full Faith and Credit in Rejecting

Each of the Three Purported Errors in the California

Proceeding as a Basis for Collateral Attack

Petitioner asserts that the California judgment should

not be accorded full faith and credit because it lacks due

process of law. However, Petitioner totally fails to support

this contention. In fact, his brief recognizes that the Court

of Appeals applied the notice standards of due process, but

then states that his due process rights required more. The

truth is, Fred simply “rolled the dice and lost.” He ignored

the California proceedings after he lost on the jurisdictional

issues. Thereafter, he received proper and actual notice of

all subsequent proceedings. He cannot demonstrate any

grounds for denying full faith and credit to the California

judgments under due process standards.

Rather than discussing relevant cases in asserting due

process violations, Petitioner relies on the Fourth Circuit

opinion in Compton v. Alton Steamship Company, 608 F.2d

96 (4th Cir. 1979), which he wrongly tells this Court involved

a collateral attack on a default judgment. The facts of the

instant case and the Compton decision are completely distinct.

In reality, there was no collateral attack in Compton. A

10

direct appeal was involved. Thus, Compton provides no

support for Petitioner’s contention that due process requires

an analysis on the merits of the California judgment under a

“fundamental fairness and considerations of justice” component

of due process considerations.”

The cases which do discuss the due process requirements

inherently limiting application of full faith and credit do not

consider the issue of fundamental fairness from a substantive

approach but limit the examination of the underlying judgment

to a procedural due process analysis. See Kremer u Chemical

Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed. 2d

262 (1982) and Underwriters National Assurance Company

uv. North Carolina Life and Accident, 455 U.S. 691, 102 S.Ct.

1357, 71 L.Ed. 2d 558 (1982) (discussed further herein).

“In Compton, a seaman brought an action in the Federal District

Court for the Eastern District of Virginia, claiming unpaid wages against

the defendant company. After defendant failed to appear, a default judgment

was entered in favor of the plaintiff. Defendant “was shocked into action”

by the amount of default and, ten days after receiving notice of the

judgment, filed a motion to set it aside under Federal Rules of Civil

Procedure, Rule 60, claiming mistake, inadvertence, etc. This motion was

denied, and defendant filed a direct appeal to the Fourth Circuit. Accordingly,

no collateral attack was involved. The Fourth Circuit reversed the denial

of the motion to vacate and in fact vacated the judgment under Federal

Rule of Civil Procedure 60(b).

The Compton decision did not involve a state court judgment wherein

the defendant failed to take any action by motion or appeal or otherwise

as in the instant case. In the present case, Fred appeared in the California

proceeding to contest jurisdiction in the California courts and lost. He

could have moved to vacate the judgments under California Code of Civil

Procedure Section 473 but did not do so. Nor did he appeal the judgment.

It was not until Respondent filed her collection proceedings in the Federal

District Court of Florida that Petitioner first attempted to contest the

California judgment and then only by an improper collateral attack. The

Federal District Court rejected his attempted collateral attack and the

Fifth Circuit Court of Appeals affirmed, holding that there were no due

process violations, and that the California judgment was properly entitled

to full faith and credit.

11

As recognized by the Appellate Court, full faith and

credit can be approached analytically as comprising two

separate concepts. First, full faith and credit requires only

that the judgment entered by a state court be given the

amount of recognition that the state courts in the rendering

state would give the judgment. This is not a part of any

constitutional due process analysis but a pragmatic definitional

aspect of the “credit due” a foreign judgment." Thus, if the

default judgment herein was subject to collateral attack in

California it would be subject to collateral attack in the

Florida federal proceeding. For the reasons set forth herein

The Appellate Court raised the question whether consideration of

this first factor has in essence been subsumed into the analysis of the Due

Process Clause of the Constitution. However, Kremer, supra, explicitly

recognized that a federal court must consider the state’s own rules to

determine the preclusive effect due a judgment to qualify for the full faith

and credit guaranteed by federal law:

Our previous decisions have not specified the source or defined

the content of the requirement that the first adjudication

offer a full and fair opportunity to litigate. But for present

purposes, where we are bound by the statutory directive of §

1738, state proceedings need do no more than satisfy the

minimum procedural requirements of the Fourteenth

Amendment's Due Process Clause in order to qualify for the

full-faith-and-credit guaranteed by federal law. It has long

been established that § 1738 does not allow federal courts to

employ their own rules of res judicata in determining the

effect of state judgments. Rather, it goes beyond the common

law and commands a federal court to accept the rules chosen

by the state from which the judgment is taken. M ‘Elmoyle v.

Cohen, 13 Pet. 312, 326, 10 L.Ed. 177 (1839); Mills v. Duryee, 7

Cr. 481, 485, 3 L.Ed. 411 (1813). As we recently noted in Allen

vu. McCurry, supra, “though the federal courts may look to the

common law or to the policies supporting res judicata and

collateral estoppel in assessing the preclusive effect of decisions

of other federal courts[,] Congress has specifically required

all federal courts to give preclusive effect to state-court

judgments whenever the courts of the State from which the

judgments emerged would do so.” 449 U.S., at 96, 101 S.Ct., at

416.

(Continued on Page 13)

12

and in the opinion contained in Appendix A, the Court found

that the purported “errors” or “deficiencies” raised by

Petitioner were not of a type which California courts would

view as appropriate grounds for collateral attack.

The second level of analysis under both statutory and

constitutional full faith and credit is the well recognized

concept that federal principles of due process limit applicability

of full faith and credit. Thus, as correctly stated by Petitioner,

if a judgment is entered in violation of due process it is void

and is subject to collateral attack. However, Petitioner gives

an overly broad reading to the due process requirements

not justified by the opinions of this Court."

The Appellate Court, after a very methodical analysis

of this Court’s most recent discussions of full faith and

credit, concluded that the due process limitations on recognition

of judgments is very narrow with the principle focus being

(Footnote 13 Continued)

Id. at 102 S.Ct. 1897. Thus, whether or not considered as a subset of due

process, consideration of the “credit” owed to a foreign judgment pursuant

to §1738 clearly requires a federal court to examine the preclusive effect

California would give the default judgment. As more fully explained,

infra, California would consider this judgment as res judicata in any

collateral proceeding.

“In essence, Petitioner attempts to assert lack of subject matter

jurisdiction because of the purported “irregularities” in the type of

evidence upon which the California court relied, the nature of relief

granted Verone and because of alleged unconstitutionality of the California

quasi-community property statute as applied to Fred. None of the three

“errors” go to the actual issue of subject matter jurisdiction. “Subject

matter jurisdiction” means only that a court must have “jurisdiction or

power to deal with the class of cases in which it renders judgment.” 7

MOORE'S FEDERAL PRACTICE 460.25{2], at 302 (2d ed. 1982). A court's

determination that it does in fact have jurisdiction over the subject

matter, assuming personal jurisdiction exists, is not subject to collateral

attack. /d. at 306. This is true even if the judgment in issue is a judgment

by default. Jd. at 308.

13

on jurisdiction over the person, full notice of the litigation,

and an opportunity to participate in the proceedings.

The following pertinent portions of Kremer amply support

the Circuit Court’s logic:

We have previously recognized that the judicially

created doctrine of collateral estoppel does not

apply when the party against whom the earlier

decision is asserted did not have a “full and fair

opportunity” to litigate the claim or issue... .

“(Rjedetermination of issues is warranted if there

is reason to doubt the quality, extensiveness, or

fairness of the procedures followed in the prior

litigation.” Montana v. United States, 440 U.S., at

164 n.11, 99 S.Ct., at 979 n.11. Cf. Gibson u Berryhill,

411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed. 2d 488 (1973).

x» * & & © & ®

The State must, however, satisfy the applicable

requirements of the Due Process Clause. A state

may not grant preclusive effect in its own courts

to a constitutionally infirm judgment and other

state and federal courts are not required to accord

full-faith-and-credit to such a judgment. Section

1738 does not suggest otherwise; other state and

federal courts would still be providing a state court

judgment with the “same” preclusive effect as the

courts of the state from which the judgment emerged.

In such a case, there could be no constitutionally

recognizable preclusion at all.”

(“The Court’s decisions enforcing the Full-Faith-

and-Credit Clause of the Constitution, Article IV,

§ 1, also suggest that what a full and fair opportunity

to litigate entails is the procedural requirements

of due process. Sherrer v. Sherrer, 334 U.S., at

348, 68 S.Ct., at 1089 (“there is nothing in the

14

concept of due process which demands that a

defendant be afforded a second opportunity to

litigate. . . the existence of jurisdictional facts’).

Section 1738 was enacted to implement the Full-

Faith-and-Credit Clause, . . . and specifically to

insure that federal courts, not included within the

constitutional provision, would be bound by state

judgments. Davis v. Davis, 305 U.S. 32, 40, 59 S.Ct.

3, 6, 83 L.Ed. 26 (1938) (“The Act extended the rule

of the Constitution to all Courts, federal as well as

state”). It is therefore reasonable that § 1738 be

subject to no more restriction than the Full-Faith-

and-Credit Clause.]

Kremer, supra, 102 S.Ct. at 1897-98 (certain citations omitted)

(emphasis supplied).

Similarly, Underwriters National Assurance Company

v. North Carolina Life and Accident, 455 U.S. 691, 102 S.Ct.

1357, 71 L.Ed.2d 558 (1982), supports the Fifth Circuit's

opinion that the determination by the California court of

jurisdiction and an independent determination by the Fifth

Circuit that Fred in fact had notice and an opportunity to

litigate compels the conclusion that the California judgment

be given preclusive effect:

This Court has long recognized that “[t]he principles

of res judicata apply to questions of jurisdiction as

well as to other issues.” . . . Any doubt about this

proposition was definitely laid to rest in Durfee v.

Duke, Supra, 375 U.S. at 111, 84 S.Ct. at 245, where

this Court held that “a judgment is entitled to full

faith and credit—even as to questions of

jurisdiction— when the second court's inquiry

discloses that those questions have been fully and

fairly litigated and finally decided in the court

which rendered the original judgment."

15

(The need for finality within our federal system,

... applies with equal force to questions of

jurisdiction. As this Court stated in Stoll u Gottlieb,

305 U.S. 165, 172, 50 S.Ct. 134, 137, 83 L.Ed. 104

(1938), “[a]fter a party has his day in court, with

opportunity to present his evidence and his view

of the law, a collateral attack upon the decision as

to jurisdiction there rendered merely retries the

issue previously determined. There is no reason to

expect that the second decision will be more

satisfactory than the first.” ]

* * *

A party cannot escape the requirements of full

faith and credit and res judicata by asserting its

own failure to raise matters clearly within the

scope of a prior proceeding. See Sherrer v. Sherrer,

334, U.S. 343, 352, 68 S.Ct. 1087, 1091, 92 L.Ed.

1429.

102 S.Ct. at 1366, 1368 (citations omitted) (emphasis supplied).

After being served with process in the California action,

Fred specially appeared to challenge the court’s jurisdiction

over his person, but lost. Fred did not seek direct review of

that determination, nor does he now contest this ruling.

Thus, the California court’s ruling is res judicata and cannot

be revisited by a collateral attack. Clearly the California

court was empowered to adjudicate this type of case and

possessed subject matter jurisdiction. Additionally, it is

abundantly clear that Fred had the opportunity to litigate

in California each of the grounds which he now urges as

error. Fred, having had notice and an opportunity to litigate

the matter in a court of competent jurisdiction was not

denied due process in connection with the rendition of the

California judgments.

16

A. The California Judgment On Property Rights Was Based

Upon Testimony and Evidence Properly Presented and In

Any Event the Method of Proving Damages May Not Be

Collaterally Attacked.

Petitioner improperly claims that the California judgment

on property was error because it was “entered without any

proof as to the existence, character or value of the alleged

assets.” This is completely untrue.”

In addition to Verone’s testimony and the deposition of

Fred’s business agent, the California court also relied upon

the Request for Admissions (which detailed each asset and

value) to which Fred refused to respond and based its award

on the value of assets identified therein. Petitioner does not

cite nor can he cite any California cases holding that this

would provide grounds for a collateral attack under California

law. Federal principles of full faith and credit and due process

likewise do not provide a basis for collateral attack because

of alternate methods of proof.

The Requests for Admission were deemed admitted by

Petitioner’s failure to respond thereto."* An admission is

valid evidence upon which to base a judgment. However,

contrary to the facts in the instant case, even if the California

court did not take any evidence to support the judgment on

property, such failure would not be grounds for collateral

attack under California law. Although Section 585(b) of the

California Code of Civil Procedure requires proof to be

taken to ascertain the amount of damages in the event of a

default,” any judgment that does not comply with Section

585(b) only amounts to error to be cured by direct (not

"See n.9, supra, and accompanying text.

‘Petitioner's assertion that he was prohibited from doing so will be

more fully discussed, infra.

"See also §4511 of the California Civil Code.

17

collateral) attack. Baird vu. Smith, 216 Cal. 408, 14 P.2d 749,

751 (1932). See also Gray vu. Hall, 203 Cal. 306, 313, 265 P. 246,

251 (1928); Hamblin vu. Superior Court, 195 Cal. 364, 233 P.

337, 341 (1925).

Petitioner argues that under federal due process principles

notice does not suffice in this situation because (a) Fred was

prohibited from responding to the Request for Admission

and (b) the award exceeded Fred’s total net worth. Neither

point has any factual or legal merit and cannot provide a

basis for ignoring the mandate of full faith and credit.

Fred's contention that he was prohibited from filing a

response to the Request for Admissions is entirely wrong.

Jones v. Moers, 91 Cal.App. 65, 266 P. 821 (1928), cited by

Petitioner, held that an answer filed after entry of default is

unauthorized. See also Forbes vu. Cameron Petroleums, Inc.,

83 Cal.App. 3d 256, 147 Cal.Rptr. 766 (1978). However, Fred

fails to draw a distinction between a response to request for

admissions and an answer. A response to a request for

admissions is not a responsive pleading within the meaning

of Jones and hence may not be excluded by a declaration of

default. California Civil Code Section 2033(a) provides that a

request for admissions may be served on any party who has

been served with a summons.” See Zorro Investment Co. v.

The legislative purpose of the request for admissions statute is to

determine triable issues of fact. Such a purpose is separate from that of a

responsive pleading which is to join as many issues as possible. Zorro,

supra. Hence, an answer to a request for admission is not deemed a

responsive pleading within the meaning of Jones, supra. The ruling of

Jones operates to exclude parties, not evidence; and although it operates

to divest a defaulting party of his right to appear in opposition in Court, it

does not divest the Court of its power or the right to procure evidence.

By analogy, the exclusion of a party who has not answered a complaint

and who is therefore in default cannot prevent the excluded party from

answering the request for admissions. Where evidence is taken after

default, as was done in the instant cause, evidentiary matter may be

obtained by any means from any party who has ben served with Summons.

§2033(a) California Code of Civil Procedure. An extension of Jones to a

(Continued on Page 19)

18

Great Pacific Securities Corp., 69 Cal.App. 3d 907, 138 Cal.

Rptr. 410 (1977). Moreover, in McKim v. McKim, 6 Cal.App.

3d 673, 100 Cal.Rptr. 140, 493 P.2d 868 (1972), the court

specifically held that under California law a party in default

in a dissolution proceeding could appropriately give testimony.

Fred had the right to a direct appeal on this issue of the

propriety of the manner of proof. E.g., Zorro Investment

Company, supra. He chose not to do so. There is no question

but that under California law a party in default has the

right to appeal from a judgment and particularly on the

grounds of an excessive or improper award. Uva v. Evans,

83 Cal.App. 2d 363, 364, 147 Cal.Rptr. 795, 800 (1978); Buck v.

Morrossis, 114 Cal.App. 2d 461, 250 P.2d 270 (1952); Richee

v. Gillette Realty Co., 97 Cal.App. 365, 275 P. 477 (1929).

Petitioner's second point is that the facts deemed admitted

were incorrect, and had the effect of grossly overstating his

net worth, relying primarily on the facts found at a bond

hearing before the District Court three years after entry of

the California judgment. Fred’s net worth in 1976 was not

before the Court during the bond hearing which Fred did

not attend despite a subpoena served on him requiring his

attendance. Proceedings on the bond determination is an

entirely different matter than the underlying judgment and

(Footnote 18 Continued)

defaulting party failing to answer request for admissions would divest

the non-defaulting party of his right to request admissions where, in fact,

such request for admissions are designed to protect the active litigants.

any interpretation which would prevent the expenditious determination

or elimination of triable issues of fact would clearly be against public

policy and judicial economy. Nothing in the law and nothing in the

California Constitution, codes or cases or under the U.S. Constitution or

law prohibits a defaulting party, when requested, from testifying or

giving evidence.

19

should not even be considered in ruling on the Petition for

Writ of Certiorari.””

The Court of Appeals reviewed the propriety of a collateral

attack under federal principles of law on the grounds here

asserted: that the method of proof may have had the effect

of overstating Fred’s net worth thus constituting such manifest

injustice as would permit a collateral attack. (App. at A-18

to A-23.) The Fifth Circuit correctly concluded that this case

does not fall within the narrow exception permitting a collateral

attack. (App. at A-23.)” In distinguishing this case from

Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949) cert. denied,

359 U.S. 816, the Court of Appeals remarked as follows:

Also, unlike the defendant in Bass, Fred was served

with the property division judgment and therefore

might have appealed it or moved to set it aside

under the more lenient “six month” rules. See

"The Court below did not find that the judgment exceeded Fred's

net worth many times over as of the date it was entered. The only proof

regarding Fred’s net worth taken during hearings on bond to be posted

pending appeal was to ascertain Fred’s worth in 1979 not as of 1976.

Nor has it ever been proven by Petitioner that the value of the

parties’ assets were less than that stated in the California judgment at

the time said judgment was entered. Similarly, though the Court “found”

in the bond hearing that Fred's total “net worth” was approximately

$600,000 it also set bond at $1,500,000. Fred posted an amount equal to

the bond by depositing a portion of the exact securities described in the

California court's findings of fact. The $600,000 figure resulted from the

fact that Fred had transferred many millions of dollars worth of assets to

a revocable trust. (Jt.App. at 163.) As further security pending appeal, the

District Court also enjoined transfer or disposition of the trust assets as

well as other assets. (Jt.App. at 170-171.)

*As the dissent in Bass points out, it is questionable whether such

an exception to the prohibition on collateral attack exists if jurisdiction

was properly exercised by the first court and no appeal was taken. See

Kremer and Underwriters, supra, which suggest the correctness of the

Bass dissent.

20

Cal.Code Civ.Pro. §473 (allowing relief from judgment

within six months for, inter alia, surprise and

excusable neglect). Finally, in Bass, the court gave

considerable emphasis to the denial of the defendant's

Seventh Amendment right to a jury trial. 172 F.2d

at 209, 210. Unlike in Bass, Fred does not claim a

constitutional right to a jury trial in the California

state court, nor did Fred make a demand for a jury

trial.

(App. at A-21.)

This Court has stated that no hearing is required by the

Due Process Clause when a defendant is in default. Boddie

v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.

2d 113 (1971). Fred was not foreclosed from presenting or

contesting evidence concerning the valuation of the marital

estate in the California proceeding. Even though he did not

appear at the default proceeding, Fred could still have moved

to vacate that default and to set aside the judgment, or, he

might have appealed the default judgment in the California

proceeding. He failed to do either and, accordingly, he has

had all the protection due him by law.

B. The California Petition Encompassed a Demand for Cash

Offset and the California Court had Complete Discretion

to Award All Assets to One Spouse with an Equal Cash

Award to the Other Spouse which Discretion was Properly

Exercised Under the Circumstances Presented

Petitioner argues that under California law, the relief

granted (a cash offset) was in excess of the prayer for relief

and thus void. Petitioner also argues that the type of relief

granted was not authorized by statute. The latter argument

is not carried to a conclusion that if not authorized by

statute, the judgment was in excess of the Court’s power;

however, the contention was made and rejected below, both

21

as to the legal validity of the conclusion and as a permissible

grounds for collateral attack.

The contention that the judgment is void under California

law because in excess of the prayer for relief is clearly

refuted by Badillo vu. Badillo, 123 Cal.App. 3d 1009, 177

Cal.Rptr. 56 (1981). In Badillo the wife filed her Petition for

Dissolution under the Family Law Act. The Petition requested

that property rights “be determined as provided by law.”

She did not make any request for specific assets or manner

of division of property. Husband was personally served, but

allowed a default judgment to be entered. In its judgment,

the court awarded certain assets to Husband and Wife and

also gave Wife the family residence. Husband did not appeal

the judgment. Later, Husband filed suit against Wife's estate

claiming an interest in the family residence awarded to

Wife in the dissolution judgment. The trial court found

against Husband. On appeal, Husband contended that the

dissolution judgment was in excess of the wife’s prayer and

thus void and subject to collateral attack. The California

Court of Appeal disagreed holding that although the division

may not have been in compliance with the equal mandates

of California Civil Code §4800, the relief awarded was within

the scope of the prayer for disposition “according to law.”

Therefore, the judgment was not void or subject to collateral

attack (although it may have been an abuse of discretion

subject to direct appeal).

As in Badillo, the prayer for relief in Verone’s California

Petition requested that “property rights be determined as

provided by law.” (Jt.App. at 7.) Thus, Petitioner's argument

that the judgment in the instant case was void because in

excess of the prayer for relief is directly contradicted by

Badillo.

In an attempt to manufacture a federal due process

claim based upon the language of the prayer for relief,

Petitioner claims in his Petition that the Badillo decision is

inapplicable because it was rendered some seven years after

he defaulted. He reasons that he did not have constitutional

notice of this decision at the time he decided to default and,

therefore, he should not be bound by the interpretation of

the prayer for relief given by Badillo. However, the notice

required under the Due Process Clause is notice of the

pendency of the proceedings. Moreover, Badillo considered

the import of a ruling entered at least two years before

Verone filed suit in California.”

Petitioner’s continued reliance on Wilkinson v. Wilkinson

12 Cal.App. 3d 1164, 91 Cal.Rptr. 372 (1970) is misplaced. In

Wilkinson the wife prayed that specific community property

be awarded to her and the court awarded a cash offset.

Therefore, the judgment was in excess of the prayer for

relief. In this case, Verone did not request any specific

award of community property. Fred was served with the

Summons and Complaint wherein Respondent requested

that she be accorded property as provided by California law

and wherein in she claimed that the community estate was

in excess of $15,000,000. Fred was thereby notified that

Verone could obtain at least one-half of that amount from

the California courts, but Fred intentionally refused to take

part in the California proceedings.”

“Even if the judgment did exceed the prayer for relief the entire

judgment is not void but only that portion which exceeds the prayer. See

Becker v. S.P.V. Construction Co. Inc., 27 Cal. 3d 489, 165 Cal.Rptr. 825,

828, 612 P.2d 915 (1980). The Fifth Circuit therefore limited the judgment

to one-half of the maximum amount alleged as community property by

Verone’s Petition. See n.11, supra.

“Assuming arguendo that the judgment did exceed the prayer for

relief, Petitioner’s basis for collateral attack could only be based on the

notions that full faith and credit requires that a judgment be given only

as much preclusive effect as the state courts would give it. Contrary to

Petitioner's assertions, a judgment would not be void under federal law if

the relief granted exceeds the prayer for relief. As is typical of the

(Continued on Page 24)

23

Petitioner further alleges that the California judgment

is not entitled to full faith and credit because the California

court was required to divide the marital property “in kind”

as opposed to the cash offset used. Petitioner intentionally

ignores the fact that the California Supreme Court has

explicitly and unequivocally held that the determination as

to the method of division (in kind, cash offset, or combination

of those methods) is entirely within the sound discretion of

the trial court. Jn re Marriage of Connolly, 23 Cal. 3d 590,

603, 153 Cal.Rptr. 423, 591 P.2d 911 (1979); In re Marriage of

Fink, 25 Cal. 3d 877, 160 Cal.Rptr. 516, 603 P.2d 881 (1979).

In Emmett v. Emmett, 109 Cal.App. 3d 753, 169 Cal.Rptr.

473 (1980) the court stated:

Nothing in the language of Civil Code section 4800

requires a distribution of the community property

in kind. The mandate of that section is that the

community property must generally be divided

(Footnote 22 Continued)

Petition, the case cited by Petitioner for the proposition that “a judgment

in excess of the prayer is void and subject to collateral attack” under

federal law is completely devoid of any reference to the proposition for

which it is cited. The closest reading of Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306 (1950) fails to provide any support for Petitioner's

argument. In fact, the law is to the contrary. Such a judgment is not void

under federal law and thus is not subject to collateral attack on the

ground that the right involved in the suit did not embrace the relief

granted. See Stoll uv. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104

(1938); American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed.

231 (1932); Walling vu. Miller, 138 F.2d 629 (8th Cir. 1943), cert. denied, 321

U.S. 784 (1944).

“Petitioner's statement that no California case can be found that

would support a cash award of community property is totally in error.

See, e.g., Weinberg u Weinberg, 67 Cal. 2d 557, 63 Cal.Rptr. 13 (1967);

Phillips v. Phillips, 152 Cal.App. 2d 582, 313 P.2d 630 (1957); Pope v. Pope,

102 Cal.App. 2d 353, 227 P.2d 867 (1951).

24

equally. An equal division is not necessarily equated

with a division in kind.

Thus, the Court’s award herein of all assets to Fred and

cash equal to one-half of the assets to Verone was not in

excess of the Court’s powers and not subject to collateral

attack.”

C. Petitioner Could Have Appealed from the California

Judgment if He Felt It Was Improper but May Not Now

Launch a Collateral Attack on California Community

Property Laws.

Petitioner’s final argument regarding “error” by the

California trial court is that the California Judgment on

Property violated California's quasi-community statute, Civil

Code Section 4803 as limited by Addison vu Addison, 62

Cal. 2d 558, 43 Cal.Rptr. 97, 399 P.2d 897 (1965) and Jn re

Marriage of Roesch, 83 Cal.App. 3d 96, 147 Cal.Rptr. 586

(1978), cert. denied, 400 U.S. 915 (1979). As the Court of

Appeals in its decision of August 6, 1982 remarked, Petitioner

“In the exercise of its discretion regarding distribution of assets, the

California court was forced to deal with the problem that most of the

assets were freely transferable securities and cash; that all assets had

been removed from California and were in the possession and control of a

party who would not obey California court orders; that the same may

have been disposed of during the lengthy period between filing of the

action and the fina] trial of the issues of asset distribution. All of these

factors dictated the cash award in the sound discretion of the California

trial court. Additionally, the largest single asset identified was the stock

owned by the parties in the Fehlhaber Corporation. The trial court had

before it Fred’s affidavits regarding the Corporation stating that he was

the sole shareholder of that corporation and that he controlled all activities

and made all business decisions for that corporation. The Court may have

properly concluded that the circumstances more than justified allowing

Fred to retain ownership of the parties’ business and thus avoid conflict.

E.g., In re Marriage of Winn, 98 Cal.App. 3d 363, 159 Cal.Rptr. 554 (1979);

In re Marriage of Clark, 80 Cal. App. 3d 417, 145 Cal.Rptr. 602 (1978)

(court has discretion to award stock in a closely held corporation to one

party and give the other a cash offset).

25

did not properly preserve this issue for appeal. Moreover,

even if the point had been properly preserved, the contention

is entirely without merit.

The Fifth Circuit pointed out that Fred made only an

oblique, ambiguous reference to some purported

“constitutional” problem in his answer to the supplemental

complaint and in his motion for a new trial. (App. at A-24.)

Fred did not develop this argument in “his briefs to the

Court, through oral argument, or through citation of authority.”

(App. at A-24.) He never raised this point in his memorandum

opposing the motion for summary judgment. Nor did he

raise this point in his pretrial stipulation. Accordingly, the

Fifth Circuit concluded the issue has been abandoned.

Automated Medical Laboratories, Inc. v. Armour

Pharmaceutical Co., 629 F.2d 1118 (5th Cir. 1980); US. uv

Indiana Bonding and Surety Company, 625 F.2d 26, 29 (5th

Cir. 1980); Tedder v. FMC Corp., 590 F.2d 115 (5th Cir. 1979);

Tomlinson v. Lefkowitz, 334 F.2d 262, 263 (5th Cir. 1964),

cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed. 556.

Petitioner claims that this quasi-community property

argument should be allowed on his appeal although he had

not preserved the issue below on the basis of fundamental

fairness, citing Compton vu. Alton Steamship Company, supra.

As explained, supra, Compton is totally inapposite to this

case. Additionally, even if the argument were properly

preserved for appeal it would not be grounds for denying

the California judgment its preclusive effect.

Petitioner raised the same argument in his motion to

quash service in the California court wherein he contended

that domicile was necessary under California law in order

for the court to have jurisdiction to award support and

property. The California court ruled against Fred on this

contention, holding that residence alone was sufficient although

26

the parties may or may not have been domiciled in California.”

Fred had the opportunity to attack this ruling in the California

courts by direct appeal or by motion to vacate, but did

nothing. That ruling is not now subject to collateral attack

under California law.

The parties lived in California for many years and

owned property, some of which may have been acquired

before moving from New York to California. Property so

acquired might have been labeled as “quasi-community” if

the same were not comingled with community property;

however, if comingled all of the property would simply

become community property.” If petitioner participated in

the California proceedings, he might have produced evidence

to permit a distinction for the purpose of his present and

unfounded argument; however, such was not the case and

Petitioner has not now identified any asset designated as

“quasi-community.”

The allegation that the California statute is

unconstitutional does not provide a basis under federal due

process concepts for collateral attack. It is well established

that even where a judgment is predicated upon a statute

later declared unconstitutional, that fact does not provide a

basis for collateral attack. Chicot Co. Drainage Dist. v. Baxter

State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940);

Margoles v. Johns, 660 F.2d 291, 295 (7th Cir. 1981); Elgin

National Watch Co. v. Barrett, 213 F.2d 776 (5th Cir. 1954).

Thus, even if the California quasi-community statute were

deemed to violate some provision of the Constitution, which

is vigorously denied, Petitioner may not now raise that

issue as a basis for collateral attack on the California judgment.

*See n.5, supra, and accompanying text. See also Jt.App. at 33-57.

“For example, the Court found that the interest in Fehlhaber Corporation

had become so comingled that it was community not quasi-community

property. (Jt.App. at 130.)

CONCLUSION

Based upon the foregoing, the Petition for Writ of

Certiorari to review the determination of the Court of Appeals

for the Fifth Circuit should be denied.

DATED: Miami, Florida

June 20, 1983

Respectfully submitted,

MAX FINK

Suite 700

9777 Wilshire Boulevard

Beverly Hills, California 90212

(213) 272-9181

Counsel of Record for Petitioner

WOODROW “MAC” MELVIN, JR.

PATRICIA E. COWART

RUDEN, BARNETT, McCLOSKY,

SCHUSTER & RUSSELL, P.A.

Suite 2020

One Biscayne Tower

Two South Biscayne Boulevard

Miami, Florida 33131

(305) 371-6262

Of Counsel