Marriage of Downing
Filed 7/3/12 Marriage of
Downing CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
In re Marriage of ERIC and SABRA DOWNING.
2d
Civil No. B236110
(Super.
Ct. No. D337323)
(Ventura County)
ERIC DOWNING,
Plaintiff and Respondent,
v.
SABRA DOWNING,
Defendant and Appellant.
Wife
appeals an order denying her motion to set aside a default
brought pursuant to Family Code section 2122.
FACTS
Husband
filed a petition for dissolution of marriage on December 29, 2009. The petition alleged the
parties were married on May 5, 1999, and separated on November 1, 2008, a period of approximately nine years and six months. Wife was served with the petition on December 31, 2009.
Husband
filed a request for default on May 13, 2010. His community property declaration shows the
family residence in Ventura as the only community asset.
Its fair market value is listed as $334,000, and the amount of debt as
$500,000. The proposal for division of
the residence lists 0.00 for each party.
Default
judgment was entered on June 24, 2010. The judgment ordered Husband to pay spousal
support of $2,600 per month until 2019; it stated that the parties agree to
sell their residence and divide the proceeds equally; and it provided that any
pension plan shall remain the sole and exclusive property of the party in whose
name the pension plan exists. Notice of
entry of judgment was mailed on June 24, 2010.
On May 26, 2011, Wife filed a motion to set aside the judgment and for
sanctions. The motion was based on
Husband's alleged fraud, perjury, and failure to disclose, and Wife's mental
incapacity and duress.
In
support of her motion, Wife declared:
She suffers from multiple
chronic migraines, fibromyalgia, chemical sensitivities and degenerative nerve
disease. When she was served with the
petition for dissolution and notice of entry of judgment, she was too ill to
comprehend the documents. Husband was
aware of how ill she was. She never
received the disclosures, or the request for default or the judgment.
Wife
declared that her health required that she live near the ocean. Husband would place her in a hotel, make sure
she had the necessities, and assist her with her basic needs. On April 12, 2009,
he moved her into her current home, and told her he wanted a divorce.
Wife
states, now that she has been living near the ocean, her health has
improved. She can now comprehend the
information she had received.
In
opposition to the motion, Husband declared:
From October 2009, Wife was fully capable of caring for herself. He does not believe Wife's statement that she
was too ill to read the judgment. She
was personally served with summons and petition
for dissolution.
Husband
admitted the judgment does not divide the community property portion of his
pension. He stated that he is willing to
pay for a Qualified Domestic Relations Order dividing the community portion of
his pension.
Husband
also admitted that the $500,000 he listed as a mortgage on the family residence
was a "'placeholder.'" He inadvertently neglected to insert the
correct amount before filing the paperwork.
He pointed out the amount is irrelevant because the judgment provides
that the property will be sold and the proceeds divided equally.
Husband
said that he has never denied Wife access to any of the community or her
personal property located in the family home.
Most of the furniture in the home is hers. She has always known she can pick it up
anytime she wanted. He even offered to
put it in storage for her; she declined the offer.
Husband
declared his income is $6,844 per month.
He received a discretionary bonus in 2010 of $21,000. He does not know whether he will receive a
bonus in 2011.
Husband
pays Wife $2,600 per month as support.
He also paid Wife's separate property credit card debt of $16,000.
The
trial court found to the extent there was some nondisclosure or an element of
perjury, the judgment was not materially affected. The court also found Wife failed to carry her
burden of showing fraud, duress or mental incapacity. By stipulation, the court set aside the judgment
waiving community interest in any pension plan.
In all other respects, the court denied the motion.
DISCUSSION
I
Section
2122 allows the trial court to set aside a judgment after the period provided
in Code of Civil Procedure section 473 upon a showing of fraud, perjury,
duress, mistake of law or fact in a stipulated or uncontested judgment, or a
failure to disclose as required by section 2100 et seq.
Before
the trial court can grant relief, the court must "find that the facts
alleged as the grounds for relief materially affected the original outcome and
that the moving party would materially benefit from the granting of the
relief." (§ 2121, subd. (b).)
The
party seeking to have the judgment set aside has the burden of proof. (In re
marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88.) We review the trial court's decision for an
abuse of discretion. (
Cal.App.4th 673, 682.)
Here
Husband admitted the failure to disclose his pension fund and the amount of the
debt secured by the family residence.
The trial court found that any such failure to disclose or perjury did
not materially affect the judgment. The
finding is supported by the record.
Husband
stipulated to set aside the judgment as to his pension fund. The judgment provides that the family
residence will be sold and the proceeds divided equally. Thus the amount of debt secured by the
residence is not material.
Wife
argues the family residence has no value because the mortgage exceeds its
market value. Assuming that to be true,
Wife does not explain how the failure to disclose a valueless asset can
materially affect the judgment.
Wife
complains that Husband continues to reside in the family residence without ever
placing it on the market. Wife fails to
explain how marketing a valueless asset could possibly assist her. Wife's own declaration shows that she cannot
live in the family residence. She claims
she must live near the ocean.
Wife
argues there is substantial evidence of perjury and fraud.
"In viewing the
evidence, we look only to the evidence supporting the prevailing party. [Citation.]
We discard evidence unfavorable to the prevailing party as not having
sufficient verity to be accepted by the trier of fact. [Citation.]
Where the trial court or jury has drawn reasonable inferences from the
evidence, we have no power to draw different inferences, even though different
inferences may also be reasonable.
[Citation.] The trier of fact is
not required to believe even uncontradicted testimony. [Citation.]" (Rodney
F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)
Wife
argues Husband's declaration in opposition to her motion admitted there were
household furnishings and her personal property, yet he failed to list them as
assets. But Husband declared that Wife
has free access to all of those assets.
He even offered to put them in storage for her. Again, Wife does not show how the failure to
disclose the assets can materially affect the judgment.
Wife
argues Husband failed to disclose checking and savings accounts. Wife points out that Husband declared after
paying off Wife's credit card debt, the parties had only $3,000 in their joint
savings and checking account. But Wife
fails to mention that the credit card debt Husband paid was over $16,000 in
Wife's separate debt incurred after their separation. Husband's point is that Wife greatly
benefited by the payment of her separate debts, and that Wife's benefit
overwhelmed by a large margin any community interest she may have had in the
parties' joint accounts. Wife presents
no credible evidence to show Husband is wrong.
Thus she failed to show that the judgment was materially affected.
Wife
points out that Husband listed wages of $6,844 per month on his income and
expense declaration without supporting documentation. Wife also complains Husband reported his
discretionary bonus as zero on his income and expense declaration, whereas it
was actually $34,000. But Wife produces
no evidence to show Husband's wages were not in fact $6,844 per month. In addition, Husband's income and expense
declaration filed in May 2010 states, "Discretionary bonus in
December." Husband could not have
known then how much the bonus would be.
Wife
points out that in the petition for dissolution, Husband inserted "9"
for the years of marriage, and left the number of months blank. She claims he should have filled in nine
years, eleven months. Assuming that to
be so, Wife fails to show how it would have made a material difference.
Wife
claims it is undisputed that income for the year 2008 was $126,233 and for
2009, $117,676. But Wife confuses
undisputed evidence with credible evidence.
The only evidence that supports Wife's claim is her own unsupported
declaration. The trial court is not
required to find even undisputed evidence credible. (Sprague
v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.)
Wife
contends the trial court erred in concluding section 2122 only authorizes the
trial court to set aside the judgment, not the default. But because Wife failed to carry her burden
of showing she is entitled to any relief, we need not decide the question.
II
Wife
contends the trial court erred in concluding the policy favoring the finality
of judgments outweighs the policy of assuring the proper division of community
property and adequate spousal support.
But the
trial court concluded only that section 2120, subdivision (c) acknowledges the
public policy in favor of finality of judgments. That is manifestly true. Section 2121, subdivision (b) provides that a
judgment cannot be set aside unless the moving party shows the alleged grounds for
relief materially affected the original outcome and that the moving party would
materially benefit from the granting of relief.
Such a showing of prejudice is not only mandated by statute, it is
mandated by the California Constitution.
(Cal. Const., art. VI, § 13; In
re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, 526.)
Wife
appears to believe that merely showing a failure to disclose is enough to have
the judgment set aside. But section
2121, subdivision (b) and the California Constitution provide it is not
enough. Wife must also show that had the
proper disclosures been made, she would have obtained a more favorable
judgment. She has failed to make such a
showing.
III
Wife
contends the trial court abused its discretion in denying spousal support and
attorney fees.
The
trial court did not deny Wife spousal support.
The judgment provided for spousal support of $2,600 per month until July
2019. The court simply refused to modify
the judgment.
Wife
argues the court should have set aside the termination date. Wife's argument is apparently based on her
claim that she was unable to work during her marriage and will not be able to
work in the future. The only support for
her claim is a doctor's note of August 1, 2011, labeled "Per patient's
request," and stating only, "Sabra Downing unable to attend court in
the mornings due to medical condition."
That hardly requires the trial court to modify the 2019 termination
date.
Wife
also argues that the trial court entered judgment for spousal support without a
"prove up" hearing, and never made any of the findings required by
section 4320. But now that the time has
expired to set aside the judgment under Code of Civil Procedure section 473,
the burden falls on Wife to prove the amount of spousal support was wrong. (§ 2121, subd. (b));
The
trial court did refuse to award attorney fees, stating that each party would
bear his or her own fees. The court gave
no reason for denying Wife's request for fees.
We have little doubt, however, that the trial court's decision was based
on the ground that her motion as a whole was so lacking in merit as to border
on the frivolous.
Section
2030, subdivision (c) authorizes the trial court to award attorney fees and
costs "reasonably necessary" to maintain or defend proceedings after
entry of judgment. A trial court may
properly conclude that fees to maintain a motion bordering on the frivolous are
not reasonable necessary.
Wife's motion was
successful in one respect. Husband
agreed to set aside the judgment with respect to his pension. The trial court, however, acted within its
discretion in denying her attorney fees.
We affirm. The parties to bear
their own costs on appeal.
NOT
TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN,
J.
PERREN,
J.
>
John R. Smiley, Judge
Superior Court County of Ventura
______________________________
Law
Office of Laurie Peters, Laurie Peters for Defendant and Appellant.
Law
Offices of Tobie B. Waxman, Tobie B. Waxman for Plaintiff and Respondent.
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All statutory references are to the Family Code unless otherwise stated.
