Marriage of Brownell
Filed 3/5/12 Marriage of Brownell CA 4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of DAVID AND CHARLOTTE BROWNELL.
DAVID BROWNELL,
Respondent,
v.
CHARLOTTE KENT,
Appellant.
E052588
(Super.Ct.No.
HED000822)
OPINION
APPEAL from the Superior
Court of
County. John W.
Vineyard, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Charlotte Kent, in pro. per., for
Appellant.
No appearance for Respondent.
Charlotte Brownell Kent (appellant) appeals
from an order entered October 28, 2010, vacating a money judgment in her favor
entered June 26, 2006, which purportedly represented the balance her former
husband, David Brownell (Brownell), owed to her on a $49,983 equalization
payment awarded to appellant in their marital
dissolution proceeding.
name="_ftnref1" title="">[1] The trial court found the June 26, 2006, judgment was improper
and erroneously entered because the equalization award had been satisfied. Appellant, who represents herself in this
appeal, raises various claims challenging the trial court’s order vacating the
judgment. We conclude her claims are
meritless and therefore we will affirm.
SUMMARY OF
FACTS
The pertinent facts are not
disputed. Brownell petitioned for
dissolution of his marriage to appellant.
On April 9, 2002, at
the conclusion of trial on distribution of the marital assets, the court
awarded appellant $49,983.84 as an equalization payment. The parties’ seven children lived with their
father, Brownell. Appellant had been
ordered to pay child support but as of the date of the hearing, she owed
Brownell $20,333.99 in back payments.
Brownell refinanced the mortgage on his residence in order to pay some
or all of the money he owed appellant on the equalization payment. At a hearing on May 14, 2003, he represented to the trial court that he
had obtained $30,000 in cash from the refinance.
Brownell, and counsel for the County
of Riverside, which became involved
in collecting child support from appellant after Brownell applied for and
obtained financial assistance from the county, the trial court determined that
$21,000 should go to appellant, and $4,300 should be paid to the county for
child support arrearages. The court
asked the parties to submit declarations addressing how the remaining $4,700
should be distributed. At a hearing on June 5, 2003, the trial court released
the $4,700 to appellant.
In May 2006, appellant filed an
order to show cause seeking a determination of the amount of money Brownell
still owed to her on the equalization payment.
In her supporting declaration, appellant stated in pertinent part that
she had received $30,000, which included money paid to reimburse the county,
and that “[t]he court ordered that the remaining monies ($19,983.84) were to be
paid in full by [Brownell] within three years -- with [Brownell] ordered to pay
the interest only and then a ballon [sic]
payment. The three year period has
terminated as of 04/09/05
and [Brownell] has not paid a dime towards these monies -- including payment of
the legal interest during this entire time.
He therefore owes me the entire principle of $19,983.84 PLUS all of the
interest at the legal rate for 3.25 years as of 04/09/05 for $7,993.36 for a total owed, as of 04/09/06 of $27,977.38.”
judgment in the amount requested—$27,977.38.
Brownell was not present at that hearing nor was he represented by
counsel.
In June 2007, Brownell moved to set
aside the June 26, 2006,
judgment on the ground that the trial court made the final award to appellant
with respect to the equalization payment at the hearing on June 5, 2003, and as a result he did not owe
appellant any money. Brownell asserted
that appellant’s claim was fraudulent and therefore the June 26, 2006, judgment should be set aside. Appellant filed opposition in which she
asserted, among other things, that the trial court at the hearing on June 5, 2003, did not address the
additional money Brownell owed to her on the equalization payment. After taking the matter under submission
following a hearing on August 9, 2007,
the trial court denied Brownell’s motion to set aside the June 2006 judgment.
In August 2006, appellant offered a
stipulation, in response to an order to show cause regarding her delinquent
child support payments, to pay Brownell $20,000 in two payments of
$10,000. The trial court accepted that
stipulation. In August 2008 appellant
filed an order to show cause seeking to offset her June 26, 2006, judgment against her delinquent
child support payments. Apparently
because neither the court nor Brownell’s counsel could recall who owed what to
whom, the matter was eventually set for trial.
Following a hearing in March 2010, the trial court requested further
briefing from the parties on various issues.
On May 12, 2010, the
trial court found that the judgment issued on June 26, 2006, was in error; the equalization payment with
accrued interest had been paid (or “satisfied,” as the court put it) before the
June 2006 judgment was entered. However,
because it was untimely the trial court denied Brownell’s motion to reconsider
the August 2007 order denying the motion to set aside that judgment. The trial court stayed enforcement of the
judgment and collection of any child support arrears and requested further
briefing on various issues including whether there were any remedies regarding
the voidable judgment that were not time-barred.
In a ruling dated October 28, 2010,
the trial court found, after considering the briefs of both parties, that the
judgment entered on June 26, 2006, “was improper and entered in error;
therefore, the judgment is ordered vacated.”
Appellant challenges that order in this appeal.
DISCUSSION
We begin our discussion with the
principle that a judgment is presumed correct and the appellant has the
obligation of showing error. (
557, 564 [“‘A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown. This is not only a general principle of
appellate practice but an ingredient of the constitutional doctrine of
reversible error.’”].)
Appellant has not met that
obligation in this appeal. She did not
include in the record on appeal any of the filings Brownell submitted to
support the trial court’s ruling.
name="_ftnref6" title="">[6] We must presume those filings include facts
that support the trial court’s ruling in this matter and for that reason alone
we will affirm the judgment.
More significantly, we are persuaded from our review of the record not
only that the facts support a finding that the June 26, 2006, judgment was
erroneous but also that the trial court properly exercised its authority
sitting as a court of equity to set aside the June 26, 2006, judgment on the
ground that it was erroneous.
We begin with the principle that
“[a]fter the time for ordinary direct attack has passed (see Code Civ. Proc.,
§ 473 [allowing up to six months to challenge a judgment entered through
the moving party’s mistake, inadvertence, surprise, or excusable neglect]), a
party may obtain relief from an erroneous judgment by establishing that it was
entered through extrinsic fraud or mistake.
[Citations.] To warrant relief on
this ground, the moving party must establish: (1) facts constituting extrinsic
fraud or mistake; (2) a substantial defense on the merits; and (3) diligence in
seeking relief from the adverse judgment.”
(In re Marriage of Damico
(1994) 7 Cal.4th 673, 688.)
The controversy in this case is the result of an inadequate recitation
of the trial court’s findings at the hearing on May 14, 2003, at which the trial court ordered
distribution of Brownell’s $30,000 mortgage equity check. In the course of discussing distribution of
that money, appellant acknowledged she owed $20,333.99 in back child support
payments to Brownell per the trial court’s order at an April 9, 2002 hearing. Appellant confirmed that Brownell owed her
$53,262.63 (the original equalization payment award plus accrued interest) and
when the $20,333.99 is deducted from the $53,262.63, the difference, or
balance, according to appellant of $32,929.63
that appellant’s child support obligation would be offset against the money
Brownell owed to her. Unfortunately,
that offset was not clearly articulated at the hearing, and therefore is not
set out in the clerk’s minute order.
In addition to acknowledging that she owed Brownell $20,333.99,
appellant also acknowledged that she owed the County of Riverside $3,714.62 in
delinquent child support payments. The
trial court ordered that debt, which the trial court estimated to be $4,300, be
paid from the $30,000, and then ordered $21,000 released to appellant. As previously noted, the trial court later
ordered the remaining $4,700 of the $30,000 be paid to appellant. Therefore, appellant received a total benefit
of $30,000. When that amount is
subtracted from the $32,929.63 appellant acknowledged was the balance owed to
her on the equalization payment, only $2,929.63 was unpaid as of June 5, 2003.
In her declaration in support of the order to show cause that resulted
in the erroneous June 26, 2006 judgment, appellant incorrectly represented the
facts. She stated, as set out above,
that “[t]he court ordered that the remaining monies ($19,983.84) were to be
paid in full by [Brownell] within three years -- with [Brownell] ordered to pay
the interest only and then a ballon [sic]
payment.” The trial court did not make
any such order at any hearing in this matter.
It is apparent from the record, quoted above, that as far as the trial
court was concerned the parties had extinguished their respective debts to each
other as of June 5, 2003, after distribution of the $30,000. Appellant apparently took the quoted
three-year term of payment from the original April 9, 2002, order, as evidenced
by her statement that “[t]he three year period has terminated as of
04/09/05.” Whether intentional or
inadvertent, appellant misrepresented the facts. As a result of that misrepresentation,
appellant obtained a judgment to which she is not entitled as the trial court
correctly found in its May 12, 2010, and October 28, 2010 rulings. In short, as of June 2003, when the trial
court awarded appellant the remaining $4,700 of Brownell’s $30,000 equity
check, Brownell and appellant did not owe each other any money.
Why it took such a long time for the trial court, or anyone else for
that matter, to recognize the error is not entirely clear. A specific recitation of the trial court’s
calculations at the May 14, 2003, hearing might have avoided the problem. Had Brownell been present or represented by
counsel at the June 26, 2006, hearing, the mistake might not have
occurred. Whatever the explanation, it
is apparent from the record that appellant misrepresented the facts to the
trial court in her declaration and as a result obtained a substantial judgment
against Brownell to which she is not entitled.
Therefore, for both of the reasons discussed we affirm the trial court’s
order vacating that judgment.
DISPOSITION
The order vacating the June 26,
2006, judgment in favor of appellant and against David Brownell is
affirmed. Appellant is to bear her own
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MCKINSTER
Acting P.J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Brownell did not file a respondent’s brief and
the time within which to do so is long past.
name="_ftn2" title=""> [2] Appellant takes issue with that figure, and
claims in this appeal as she did in the trial court that Brownell obtained more
cash than $30,000 from refinancing the mortgage. The point, if true, nevertheless is
irrelevant, and like the trial court, we will not address it.
