Marriage of Perez

Filed 10/2/08 Marriage of Perez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Susan Lopez-Giss, Judge. Affirmed.

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Law Offices of Owenby & Owenby, Ruth L. Owenby and Douglas A. Owenby for Appellant.

No appearance for Respondent.

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Ralph Perez appeals from the trial courts order granting only in part his motion to vacate the default judgment entered on Leticia Perezs petition for marital dissolution.^[1] We affirm.

BACKGROUND

On May 7, 2004, Leticia filed a petition for dissolution of her marriage to Ralph. Ralph filed no response, and on February 2, 2005, the trial court entered his default. On May 19, 2006, the court entered a default judgment. The judgment awarded the family residence to Leticia as her sole and separate property, with no equalization payment to Ralph.

On September 1, 2006, Leticia filed an application for an order compelling Ralph to sign a deed transferring the residence to her or, alternatively, authorizing the clerk of the court to sign it on Ralphs behalf. On October 3, 2006, Ralph responded to the application by filing a motion to vacate the judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. His memorandum of points and authorities also argued that through actual fraud Leticia had prevented him from fully participating in the proceeding.

On October 13, 2006, at the hearing on Leticias application for an order compelling Ralph to sign the deed (but not on Ralphs motion to vacate), the judge who had entered the judgment said she was inclined to act sua sponte in this matter and vacate the judgment because she had signed it inappropriately. The court denied Leticias application and did not vacate the judgment sua sponte.

Thereafter, all proceedings in the case were heard before a different judge. The new judge conducted several hearings, reviewed the transcript of the October 13, 2006, hearing, and also received further briefing from the parties concerning the property division.

By minute order entered on May 30, 2007, the trial court granted Ralphs motion in part, determining that the judgment had not properly disposed of Leticias retirement plan; in all other respects, Ralphs motion was denied. Ralph moved for reconsideration, and the court denied the motion. Ralph appealed from the ruling on the motion to vacate the judgment.

STANDARD OF REVIEW

The trial courts ruling on Ralphs motion to vacate the judgment is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [motion under Code of Civil Procedure section 473, subdivision (b)]; In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138 [motion under Family Code section 2122].) In general, we review the trial courts conclusions of law de novo, and we review its findings of fact under the substantial evidence standard. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)

DISCUSSION

Ralph raises three arguments on appeal. We conclude that none of them warrants reversal.

First, Ralph argues that the trial court should have granted his motion in its entirety on the ground of extrinsic fraud. In his motion to vacate, Ralph argued that Leticia had prevented him from fully participating in the proceeding by discussing settlement with him and leading him to believe that the marital property would be divided equally. The trial court expressly rejected Ralphs argument, finding that [t]here [was] no extrinsic fraud. The courts finding is supported by substantial evidence: The record on appeal contains Leticias declaration that (1) it is untrue that she and Ralph were talking about settlement, and (2) Ralph generally refused to cooperate throughout the dissolution proceedings. Ralphs argument therefore fails.^[2]

Second, Ralph argues that the trial court should have granted his motion in its entirety because the judgment violates the courts statutory duty to divide the community estate of the parties equally. (Fam. Code,  2550.)^[3] As Ralph acknowledges, however, section 2123 provides that [n]otwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made[.] Ralphs argument that his motion to vacate should have been granted because the judgment divided the property unequally therefore fails as a matter of law.

Ralph argues to the contrary that all of the published cases applying section 2123 involved marital settlement agreements or stipulated judgments, which the instant case does not. Although Ralphs characterization of the published cases is correct, the point is of no consequenceby its terms, section 2123 is not limited to cases involving settlement agreements or stipulated judgments, so there is no reason it should not apply here. Ralph also argues that if section 2123 is read as restrict[ing] correction of a default judgment then it conflicts with section 2550 and leads to an absurd result. There is, however, no conflict and no absurd result. Section 2550 does impose on the trial court a duty to divide the community estate equally, and the parties are free to litigate the issue of equal division until entry of judgment. The effect of section 2123 is that when judgment is entered, litigation of the issue of equal division comes to an end (except for the possibility of challenging it on appeal). That is not absurd or even particularly unusualin general, the permissible grounds for attacking a judgment in the trial court are strictly circumscribed. (See  2122.) Moreover, section 2123 provides that notwithstanding any other law a judgment shall not be set aside on the ground that the division of marital property is inequitable, so neither section 2550 nor any other law can bar its application.

For all of these reasons, Ralphs argument based on the trial courts statutory duty to divide the community estate equally is not persuasive.

Third, Ralph argues that the trial courts stated basis for its ruling, which had to do with Ralphs failure to take any steps to provide for his children while the dissolution proceedings were pending, is legally erroneous. Ralphs argument fails, however, because we review the trial courts ruling, not its reasoning. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.) Even if Ralph is right that the courts stated basis for its ruling was incorrect, that does not show that the ruling constituted an abuse of discretion. Rather, Ralph must argue affirmatively that his motion should have been granted in its entirety and that the trial court therefore abused its discretion by granting the motion only in part. Ralph has presented no meritorious argument to that effect.

DISPOSITION

The order is affirmed. Respondent shall recover her costs of appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J. WEISBERG, J.^*

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^[1] For the sake of convenience, we will refer to the parties by their first names. No disrespect is intended.

^[2] We note that Ralphs extrinsic fraud argument is based primarily on Leticias early filings in the dissolution proceedings, which allegedly indicated that Leticia was seeking an equal division of the value of the residence. The record on appeal contains none of those filings; the earliest document included in the clerks transcript is the judgment. It is the appellants burden to provide us with a record adequate to establish prejudicial error. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) The only evidence in the record on appeal that supports Ralphs argument is his own declaration.

^[3] All subsequent statutory references are to the Family Code.

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