Barile v. Cage-Barile

Filed 10/10/06 Barile v. Cage-Barile CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard E. Denner, Judge. Affirmed.

Lady Cage-Barile, in propria persona, for Defendant and Appellant.

Law Offices of Richard H. Gordon and Richard H. Gordon for Plaintiff and Respondent.

___________________________

Application of the res judicata principle compels affirmance of the trial court’s order denying the motion of appellant for relief from judgment based on extrinsic fraud.

The parties were married on April 9, 1996, and separated on May 22, 1996. Mr. Barile filed his petition to dissolve the marriage (L.A.Co.Super.Ct. case no. BD243422) but the action was dismissed after a hearing on June 15, 1998, because the petition was not signed. Mr. Barile refiled his petition to dissolve the marriage (L.A.Co.Super.Ct. case no. BD367136) on April 9, 2002, and a trial was conducted on April 7, 2003. At trial, Ms. Cage-Barile moved to dismiss the petition on the ground that the trial court lacked jurisdiction and there was no California court having jurisdiction over the subject matter. The trial court denied the motion and a judgment of dissolution was entered. Ms. Cage-Barile appealed.

In an unpublished opinion[1] this court affirmed and held “the courts of this state have authority and jurisdiction to inquire into and render any judgment in actions seeking to dissolve a state recognized marriage.” This court further held “the [trial] court’s judgment in no way infringed on appellant’s First Amendment rights to her religious beliefs or responsibilities, on which we similarly express no opinion.” Appellant filed a petition for rehearing which was denied on January 7, 2004. A petition for review by the California Supreme Court was denied on March 8, 2004. Appellant then petitioned the United States Supreme Court for a writ of certiorari which was denied on October 4, 2004. The United States Supreme Court also denied appellant’s petition for rehearing on November 29, 2004.

Undaunted, on May 25, 2005, appellant filed a motion for relief from judgment based on extrinsic fraud. Appellant claimed “petitioner committed extrinsic fraud by not signing the first petition, in Case No. BD 243 422.” Mr. Barile’s failure to sign the petition in the first case had absolutely no bearing on the merits of the second case, case no. BD367136.

On appeal, appellant makes various claims of error by the trial court: abuse of discretion for refusing to enforce the terms of the premarital agreement, failing to determine whether the premarital agreement was enforcible; a constitutional claim of error in that the right to marry is a protected right, and “the public is ready for the covenant marriage license as an option to the state marriage licence [sic].”

We do not reach the merits of the issues on this appeal. Appellant lost in the trial court and lost on appeal. The doctrine of res judicata bars appellant from resurrecting her claims on a new theory of fraud. Appellant had an opportunity to litigate her claims, she fully participated in the proceedings and was given a full hearing both at trial and on appeal. “A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202; italics added.)

DISPOSITION

The judgment is affirmed. Costs are awarded to Mr. Barile.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J. ZELON, J.

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[1] This court takes judicial notice of In re Marriage of Barile (Dec. 15, 2003, B166496).