In Re Marriage of Olson Presents a Conundrum that Should be Addressed by the Legislature

Roger Rombro

S. Roger Rombro, CFLS, is a graduate of the University of Pennsylvania and Tulane University School of Law, where he studied comparative law. He clerked for United States Ninth Circuit Judge Stanley Barnes after law school. He was a Deputy District Attorney for the County of Los Angeles. After an extensive civil and criminal trial practice, he focused on family law. He served for over 20 years on the State Bar’s Los Angeles Regional Standing Committee for children’s issues, and thereafter he served as a member of the Executive Committee of the Family Law Section of the State Bar. He is a frequent lecturer and materials author for family law, ethics and trial advocacy for the National Business Institutes.

In In re Marriage of Olson¹ the Second District Court of Appeal held that a mother in a post-judgment dissolution of marriage proceeding had standing to seek a modification of child custody and child support, notwithstanding that she had been defaulted. The court ruled that it was unnecessary for her to first seek relief from default for the trial court before the court could address the merits of her requested relief because the trial court had continuing jurisdiction over the minor children, relying upon Family Code section 3087. Recognizing a trial court’s indisputable continuing jurisdiction over minor children, the panel dispatched the father’s objection to the mother’s lack of standing by concluding that nothing in the Family Code, and certainly not in section 3087, either states or suggests that a defaulted parent should be prevented from seeking a modification of a custody or child support order.²

The justices held, that "[t]o the extent that this provision (section 3087) conflicts with the general rules applicable to default judgments, the ‘general … provision must yield to one that is special’ (citation),"³and there is nothing more special than issues relating to the best interests of minor children. In reaching this decision, they concluded that since a family law trial court’s priority is to address issues in which the best interests of minor children are presented, any civil rules relating to default and to standing which may otherwise apply, are necessarily trumped by the public policy which focuses on minor children. The Olson opinion states: