In re Marriage of Kreiss – Case Brief Summary (California)

In In re Marriage of Kreiss (1990) 224 Cal. App. 3d 1033, appellant filed a motion to set aside a postjudgment order terminating spousal support on the ground that she had not been properly served with notice of the motion on which the order was based.

The trial court denied the motion to set aside, concluding that the motion was untimely under Code of Civil Procedure section 473.

On appeal, appellant claimed the order terminating spousal support was void because respondent failed to properly serve appellant with notice of the motion pursuant to former Civil Code section 4809, now Family Code section 215. (In re Marriage of Kreiss, supra, at p. 1036.)

The Court of Appeal rejected respondent's argument that the motion was untimely under section 473, reasoning:

"Appellant contends that because respondent's noncompliance with former section 4809 rendered the orders invalid, Code of Civil Procedure section 473 does not apply. We agree. Respondent's failure to serve appellant with notice of the motion is the equivalent of failure to serve summons and complaint, which renders a judgment void on its face and subject to collateral attack at any time." (In re Marriage of Kreiss, supra, at pp. 1039-1040.)