LAWYERS TITLE COMPANY OF VENTURA, Plaintiff and Appellant, v. MICHAEL D. BRADBURY, as District Attorney, etc., Defendant and Respondent, 127 Cal. App. 3d 41

Opinion COMPTON, J. Appeal by a title insurance company from a judgment in an action for declaratory relief decreeing that a lien exists on a parcel of real property, the clear title to which the company had insured. We reverse. In an attempt to effectuate enforcement of child and spousal support obligations, the Legislature enacted Code of Civil Procedure

section 674.5, which provides in pertinent part: “A certified copy of any judgment or order of the superior court of this state for spousal or child support, when recorded with the recorder of any county, shall from such recording become a lien upon all real property of the judgment debtor, not exempt from execution, in such county, owned by him at the time, or which he may afterwards and before the lien expires, acquire, for the respective amounts and installments as they mature (but shall not become a lien for any sum or sums prior to the date they severally become due and payable) which lien shall have, to the extent herein provided and for the period of 10 years from such recording, the same force, effect and priority as the lien created by recordation of an abstract of a money judgment pursuant to

Section 674.” The spirit and purpose of the statute is, of course, to provide a source for the satisfaction of judgments for child and spousal support.

On the other hand, the Legislature provided the judgment debtor with a “do it yourself” method of removing the lien when it included in the same statute, the following: “The certificate of the judgment debtor, . . . certified by him under penalty of perjury, that all amounts and installments which have matured under said judgment prior to the date of such certificate have been fully paid and satisfied shall, when acknowledged and recorded, be prima facie evidence of such payment and satisfaction and conclusive in favor of any person dealing in good faith and for a valuable consideration with the judgment debtor or his successors in interest; ...” It thus appears that under the statute, a judgment debtor may place the property beyond the reach of his or her creditor by the filing of even a false certificate of satisfaction so long as he or she is willing to risk prosecution for perjury.

Thus a good faith purchaser from the judgment debtor is given a higher priority or greater protection than the judgment creditor. In the case at bench the facts are as follows. On March 3, 1976, Marilyn Cardilino petitioned the Superior Court of Ventura County for dissolution of her marriage to John Cardilino. The parties stipulated to an order pendente lite which required, inter alia, that John pay $345 a month child support, and $105 a month spousal support.

The order signed by the trial court affirming the stipulation provided: “This order shall not be served upon anyone not a party to this action.” Subsequently, the interlocutory decree was entered on December 4, 1978. That decree differed from the order pendente lite in that the amount of child support was reduced to $260 a month and the spousal support to $75 a month.

In the interim, John acquired a house by grant deed recorded on July 16, 1977, and on April 12, 1978, the District Attorney of Ventura County caused the order pendente lite to be recorded as a lien against the property pursuant to Code of Civil Procedure

section 674.5. The interlocutory decree was never recorded. On March 21, 1979, John executed the certificate, as provided for in Code of Civil Procedure

section 674.5, that the order pendente lite had been satisfied. On the following day he executed a grant deed to the property in favor of a Betty and James Haub. That deed was recorded April 26, 1979, and Lawyers Title Insurance Company (Lawyers) issued its policy on that same date. The aforementioned certificate was recorded by Lawyers on June 26, 1979. When the district attorney made a demand on Lawyers for a sum in excess of $8,000 and threatened foreclosure of the lien on the property, the latter instituted this action.

We conclude that the recording of the order pendente lite, contrary to its express terms, did not create a lien on the property and in any event the Haubs and Lawyers are protected as good faith purchasers and insurers who relied on John’s sworn certificate notwithstanding the delay in recordation. As noted the trial court’s order pendente lite in the dissolution action specifically prohibited service of that order on anyone except the parties. This is a usual procedure.

Orders pendente lite are generally short-lived and modified by the ensuing interlocutory decree, as was the case here, hence inconvenience to third parties is avoided by limiting the effect of such orders to the parties to the action. Recording is a form of service on or notice to third parties. Hence the recording of a court order which, by its very terms, is not authorized for such purpose, imparts no constructive notice to third parties. The recording was a nullity. (Brown v.

Johnson, 98 Cal.App.3d 844 [159 Cal.Rptr. 675].) The district attorney had no greater authority to cause the order to be recorded than the party whom he purports to represent, to wit, Marilyn. Assuming arguendo that the recordation of the order constituted a lien pursuant to Code of Civil Procedure

section 674.5, as the district attorney contends, the certificate executed by John pursuant to that same statute was conclusive in favor of the Haubs and Lawyers who dealt with him in good faith and for valuable consideration. The district attorney’s contention in this regard is that the certificate was not effective until actually recorded and that the Haubs and Lawyers were not entitled to rely on it prior to its recordation. We have difficulty following that argument. The district attorney does not contend that the Haubs and Lawyers dealt with John other than in good faith and for valuable consideration.

Further there is no question that both the Haubs and Lawyers had actual notice of the certificate and that it was recorded prior to any action by the district attorney to foreclose the lien or prove the falsity of the certificate. We do not read Code of Civil Procedure

section 674.5 to require the certificate to be recorded before it can be relied on by persons who have actual knowledge of its existence and content. The purpose of recording is to give constructive notice to prospective purchasers and mortgagees of existing claims whether valid or invalid. (Domarad v. Fisher & Burke, Inc., 270 Cal.App.2d 543 [76 Cal.Rptr. 529]; Berendsen v. McIver, 126 Cal.App.2d 347 [272 P.2d 76]; Civ. Code, § 1213.) Constructive notice is never considered to be superior to actual notice in legal effect.

The district attorney contends that the recordation, required by the statute, is to give notice to the judgment creditor that the debtor claims to have satisfied his or her obligation, and thus to permit the creditor to take further action to protect his or her interests. If that is the purpose of the statute, it is totally ineffective in preventing the judgment debtor from placing the property beyond the reach of the judgment creditor.

The statute contains no requirement that recordation precede any dealing between the debtor and third persons or that any time elapse between the execution and recording of the certificate of satisfaction and the transfer of the property subject to the lien. In the instant case, if John had recorded the certificate on the same day he executed it and simultaneously executed the deed to the property, the district attorney would have been powerless to prevent the transfer or to assert the lien as against the Haubs or Lawyers.

The delay in recordation did not alter the position of the district attorney or his client, Marilyn, one iota. The aggressiveness with which the District Attorney of Ventura County pursues enforcement of child support orders is commendable, but under the circumstances Code of Civil Procedure

section 674.5 is not an effective tool. The clear intent of the Legislature was, and we think quite properly, to protect innocent third parties. As we observed, the judgment debtor has the power effectively to thwart the creditor’s efforts to seek satisfaction from real property owned by the debtor. The real inhibition to such conduct is a threat of prosecution for perjury if the certificate is in fact false. The district attorney’s weapon then is a prosecution for perjury of the judgment debtor and not the shifting of the obligation to innocent third parties.

If the statute is ineffective, the Legislature is the proper body to correct it. The judgment is reversed and the matter is remanded to the trial court with directions to enter a judgment declaring that no lien exists on the property in question. Roth, P. J., concurred. We note that counsel for Marilyn and John both signed the interlocutory decree and approved it for form and content. Apparently Marilyn made no issue of John’s failure to comply with the order pendente lite.