Marriage of Lemon
Filed 3/3/10 Marriage of Lemon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Lassen)
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In re the Marriage of JACK and THERESA LEMON. | |
JACK LEMON, Appellant, v. THERESA LEMON, Respondent. | C061088 (Super. Ct. No. 16913) |
Jack Lemon appeals from a court order dissolving the parties marriage and ordering Jack to maintain Theresa Lemon as the beneficiary of his military Survivors Benefit Plan. Jacks sole claim on appeal is that the trial court abused its discretion in considering a declaration filed by Theresa Lemon that was not signed by Theresa, but by her attorney. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jack and Theresa were married in 1978. In January 1985, Jack filed for legal separation. Seven years later, in October 1992, Jack filed a Declaration for Default or Uncontested Legal Separation. A judgment of legal separation and notice of entry of judgment were entered in the trial court, and that same day, Jack filed an amended petition for dissolution of marriage.
On November 6, 1992, Theresa filed a verified response to the petition for dissolution of marriage. In her response, Theresa requested, among other things, that Jack be ordered to maintain Theresa as the beneficiary of his military Survivors Benefit Plan. Theresa filed a declaration in support of her request, which she signed under penalty of perjury, describing her financial interest in the Survivors Benefit Plan.
Nearly 16 years later, on October 27, 2008, Jack filed a motion for a status only judgment and requested the order of judgment be entered nunc pro tunc to May 7, 1993. Six days prior to the hearing on Jacks motion, Theresa filed her response, opposing Jacks request to dissolve the marriage. In support of her response, Theresa also filed a declaration explaining her understanding that if the marriage were dissolved, she would lose her rights to the military Survivors Benefit Plan. Theresa, who was hospitalized, did not sign the declaration, her attorney did.
On November 26, 2008, the trial court issued a tentative ruling, indicating its intention to deny Jacks request that a status only judgment be entered nunc pro tunc, but to grant dissolution of the marriage and compel Jack to continue to maintain Theresa as the beneficiary of his military Survivors Benefit Plan.
At the hearing on Jacks motion, Jack objected to Theresas declaration because it was filed late and it was not signed by Theresa. Exercising its discretion to consider late-filed pleadings, the trial court overruled Jacks objection. The court then adopted its tentative ruling as the order of the court. Jack appeals that order.
DISCUSSION
Jack raises a single claim on appeal: the trial court erred in considering Theresas declaration because it was not signed by Theresa under penalty of perjury, but by her attorney. We agree with Theresa, that Jack has failed to show how he was prejudiced by the courts consideration of the unsigned declaration.
In order to obtain reversal of a judgment, it is not enough for Jack to show error; he must show prejudicial error. Thus, California Constitution, article VI, section 13, provides, [n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
Similarly, Code of Civil Procedure section 475 provides in part: No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.
In its tentative ruling, the trial court indicated its intent to grant the status only judgment as of the date of the hearing, provided [Jack] continues to cover [Theresa] as the beneficiary of his survivor[s] benefit plan and that the Plan Administrator be given notice of this order . . . . The court also stated that [counsel] has not substituted in as [Theresa]s attorney nor filed a responsive declaration. The court then adopted that tentative ruling as its order.
It is thus evident from the record the trial court rendered its decision before considering Theresas unsigned declaration. Accordingly, Jack has failed to show how he was prejudiced by the courts later decision to consider the declaration.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
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