Marriage of Hewitt

Filed 8/31/09 Marriage of Hewitt CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from an order of the Superior Court of Los Angeles County.

Amy M. Pellman, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Keith B. Hewitt, in pro. per., for Appellant.

No appearance for Respondent.

Keith B. Hewitt (appellant), appearing in pro. per., appeals from a postjudgment order denying his motion to quash proof of service, which challenged the default judgment in this marital dissolution proceeding for lack of personal jurisdiction. Patricia Shelby Hewitt (respondent) has not filed any opposing brief. (See Cal. Rules of Court, rule 8.220(a)(2).) Because appellant has not carried his burden of showing error, we affirm the order.

FACTS

Appellant and respondent were married for nearly 24 years before the dissolution. On December 2, 2005, respondent filed her amended dissolution petition, summons, income declaration and other disclosure forms.^[1] The trial courts register of actions reflects that on December 2, 2005, respondent filed a proof of service by mail. The court entered default on September 20, 2006.

Although not in the record, we take judicial notice of respondents August 16, 2006 community property declaration in the superior court file. In that declaration, respondent represented that there was approximately $96,000 in debt on the residence, which then had a gross fair market value of $400,000. Respondent further proposed that she be given a 100% interest in the property and that the equity in the property be split, with two-thirds going to her and one-third to appellant.

The trial courts register of actions reflects that the prove-up hearing was continued from December 15, 2006 to February 27, 2007. Although not in the record on appeal, we also take judicial notice of the courts December 15, 2006 minutes continuing that hearing, and reciting that the court had reviewed the proposed judgment, and found that an equal division of the property had not been proposed.

On February 27, 2007, the court held a default prove-up hearing; the courts docket reflects that it received the default package on the same date. On the same day, the court (Commissioner Padilla) entered default judgment dissolving the marriage and dividing the parties assets and obligations.

The judgment recited that Property division is ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement. There is no such settlement, stipulation or other agreement attached to the judgment. The court awarded the communitys real property, constituting the family home, exclusively to respondent, and confirmed certain properties as appellants and respondents respective separate property. The court then divided the communitys debts and reserved jurisdiction over spousal support and the parties pension plans. The judgment does not expressly recite the disposition of the any mortgage on the residence. Appellant was directed to sign all documents necessary to effect the transfer of the family residence to respondent, including an interspousal/grant deed. If appellant failed to sign any necessary documents, respondent could move to have the clerk sign them.

On June 6, 2007, the court heard appellants motion to set aside the default. The transcript of the hearing reflects some confusion as to the basis for the motion. At one point, appellant asserts that he was never served with the paperwork that he was supposed to be here in court on February 27th; at another point, he asserts that he never was served with the paperwork as far as the divorce or court dates or to respond to anything she wants as far as the divorce. Respondent disagreed. Appellant further indicated that he received notice of the February 27th hearing more than one month after that hearing, although it is not entirely clear whether appellant was referring to notice of the February 27 hearing or the February 27 judgment.

Observing that it had already found there was proper proof of service, the trial court (Commissioner Pellman) denied the motion. When appellant protested that he had never been served, the court responded: I dont have enough proof, sir. Im very sorry. At the end of the hearing, appellant quipped, So she gets everything she asked for? The court responded, She gets half. [] . . . [] She doesnt get everything.

On July 30, 2007, appellant filed his motion to quash proof of service. In his supporting declaration, appellant stated that respondent had filed the dissolution proceeding in January 1995,but that he had not been served. He asserted that he lived in the family residence until August 7, 2006. He further asserted that he was not personally served with any documents and that respondent had never told him that she was going to go forward with the 1995 filing. He claimed also not to have been given notice of the February 27 entry of default judgment until April 2, 2007.

Attached to appellants declaration was a proof of service of summons, filed on August 16, 2006, showing personal service of a family law petition, summons and various income and other disclosure forms on appellant at the family residence on February 8, 2006 at 7:30 p.m. by Sabrina Grayson, who was not a registered California process server. Appellant declared that these recitals were false, and he disclaimed ever having been personally served. He stated that Sabrina Grayson was the niece of a friend of respondent. Appellant stated that he never got home before 6:00 p.m., after mail delivery. He suggested that respondent hid the mail from him, and he stated, I believe [respondent] intercepted any documents and destroyed them. Appellant said he received his first correspondence from the court on April 2, 2007, when he received the notice of entry of judgment. He accused respondent of suborning perjury by Grayson.

Appellant further declared that respondent had a motive to hide the summons, to wit, $100,000 in stealing my equity [in the family residence]. Finally, he blamed a paralegal for the prior default and asserted that he had obtained legal counsel from this point on. In his points and authorities, appellant represented that he was seeking both to quash service and to set aside only that part of the default judgment that awarded the family residence to respondent because of lack of personal jurisdiction. Appellant referred to the courts discretion to vacate a judgment, citing Civil Code of Procedure 663.

After a continuance, appellants motion came before the court on October 22, 2007. Also scheduled for that date was a motion by respondent to have the clerk sign the transfer deed to the property. The register of actions reflects that a Responsive Declaration was filed on October 15, 2007, but appellant did not include that declaration in the record on appeal.

We, however, take judicial notice of that declaration in the superior courts file. In respondents opposing declaration, in addition to supporting proper service on appellant, respondent described a pattern of conduct by appellant in which he (1) violated court orders restraining him from returning to the residence; (2) vandalized community property, including respondents car; (3) got into fights on the residence premises resulting in hospital bills for which payment was being sought against respondent; (4) refused to participate in the dissolution proceedings in an effort to forestall respondents efforts to end this part of [her] life; (5) amassed community debts, for example, medical bills, unpaid taxes and unpaid traffic tickets; and (6) stymied her efforts to refinance the house to pay off all these community debts.

At the October 22 hearing, the parties discussed with the court ongoing settlement negotiations, by which respondent stated that she intended to buy out appellants share of the family residence and to divide the equity. The court continued the motions to November 27, 2007 to allow the parties to exchange appraisals to facilitate a settlement. At appellants request, the court also stayed any transfer of the property until the November 27 hearing.

Both parties were represented by counsel at the November 27 hearing. The court denied appellants motion to quash, and granted respondents motion for the clerk to sign the interspousal transfer deed. No reporters transcript of the November 27, 2007 proceedings appears in the record on appeal. The court entered its order on March 4, 2008. Plaintiff filed his notice of appeal on December 7, 2007.

After appellants initial default causing us to dismiss his appeal, we set aside that dismissal. Appellant also received a number of extensions within which to designate the reporters transcript on appeal. When respondent failed to file any opposition, we notified respondent that if she did not file her brief within 15 days, the appeal would be submitted for decision upon the record and appellants opening brief. As noted above, respondent has not filed any opposition.

DISCUSSION

On appeal, appellant must demonstrate that the trial court erred. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 775.) Otherwise, we are obligated to presume that the trial courts judgment was correct. In re Marriage of Falcone (2008) 164 Cal. App. 4th 814, 822.)

Appellant asserts two errors: (1) he was never served with the original petition and summons; and (2) the trial courts February 27, 2007 order giving the family residence to respondent is inconsistent with the courts statement at the June 6, 2007 hearing that the respondent was getting half, but she was not getting everything. The record includes a docket entry of December 2, 2005, that a proof of service was mail filed by respondent. The trial court noted at the June 6 hearing that it had previously rejected appellants contention that he had not been served. The record on appeal is devoid of any transcripts or specific order reflecting any prior ruling on that issue, but in his brief on appeal, appellant does not deny the existence of such a prior ruling. As noted above, the record does not contain the transcript of the November 27 hearing.

We recognize that the trial courts statement -- made approximately three months after the default judgment at issue here -- that respondent was getting half could be read to be inconsistent with the judgment itself, awarding the entire family residence to respondent. At the same time, we recognize that this was an off-hand remark by the trial judge in response to appellants questioning on a subject that was not directly before her at the time. We further note that after the June 6 hearing, appellant never sought clarification from the trial court regarding the substance of the courts February 27 judgment.

Appellant asks us to speculate that the February 27 judgment was the product of clerical error and that the block-stamped signature on that judgment reflects that the trial judge did not sign the judgment herself. In fact, there is a signature above the block-stamp, and more important, such speculation is insufficient to overcome the presumption of correctness of the judgment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BENDIX, J.^*

We concur:

FLIER, Acting P. J.

BIGELOW, J.

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^[1] We take judicial notice of the petition in the superior court file, filed on January 5, 1995, as well as the entire superior court file.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.