In Re Marriage of Smith

In this opinion we hold that a defendant who was defectively served with summons did not make that service retroactively valid by entering a general appearance after judgment was entered.

We also reiterate that Code of Civil Procedure (all code references are to this code) section 473.5 does not govern a motion to set aside a default founded upon a fraudulent return of service.

The relevant factual background is quite simple. Sandra Smith filed a petition to dissolve her marriage to Leland Smith. Contrary to law, Sandra herself handed the summons and petition to Leland. Sandra’s mother executed the return of service filed with the clerk. Leland’s default was entered and the court granted Sandra an interlocutory decree and later a final decree of dissolution. The decrees ordered Leland to make child support payments to Sandra.

Five months later, Sandra filed a notice of motion to increase child support payments and obtained an order directing Leland to show cause why he should not be held in contempt for failure to obey the child support orders previously made. She had these properly served upon Leland. Leland filed a motion to quash the service of summons upon him and…