Marriage of Prokusi
Filed 1/13/14
Marriage of Prokusi CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re the
Marriage of DUANE and SHEILA PROKUSKI.
DUANE
PROKUSKI,
Appellant,
v.
SHEILA
PROKUSKI,
Respondent.
F065903
(Super. Ct. No. FL-583813)
THE COURT
APPEAL
from order of the Superior Court of Kern
County. Stephen D. Schuett, Judge.
McGrath
Cloud Law and Bobby L. Cloud for Appellant.
Law Offices of
Michael R. Kilpatrick and Michael R. Kilpatrick for Respondent.
-ooOoo-
Appellant Duane Prokuski moved to
set aside prior judgments and orders
in his dissolution of marriage action that
required an equalization payment of $218,000 and spousal support of $1,000 per
month. The grounds he raised were fraud,
perjury and failure to disclose. The
superior court denied Duane’s motion and he filed this appeal.
In
presenting his challenges to the trial court’s order, Duane has failed to abide
by the basic rules of appellate procedure that (1) the evidence must be viewed
in the light most favorable to the prevailing party and (2) appellants have the
burden of affirmatively demonstrating prejudicial
error. In this appeal, Duane has not
carried his burden.
We
therefore affirm the order denying the motion to set aside.
FACTS
AND PROCEEDINGS
Duane
Prokuski and Sheila Prokuski were married on May 20, 1969, and separated in June
2002. In September 2002, Duane filed a
petition for dissolution of marriage.
A
five-day trial was conducted in March and April of 2004. On July 21, 2004, the superior court issued a
minute order that set forth its ruling on the matters submitted, including
spousal support. On October 21, 2004,
the court filed a judgment of dissolution terminating
marital status and a lengthy opinion that restated the findings in the July
minute order. The ruling and judgment divided
the real and personal property in dispute and directed Duane to pay Sheila
spousal support in the amount of $1,000 per month.
Duane
appealed the superior court’s characterization and valuation of certain
assets. On June 13, 2006, this court
filed a nonpublished opinion in In re
Marriage of Prokuski, case No. F047224, affirming the superior court’s
October 2004 judgment.
On
August 23, 2006, remittitur was filed with the superior court and the October
2004 judgment became final. The spousal
support ordered in that judgment is being challenged by Duane in this
proceeding.
In
January 2008, the parties entered a stipulation regarding outstanding monies
owed to Sheila by Duane, which was entered as a minute order. Pursuant to the stipulation and order, Duane
was required to pay Sheila the sum of $218,000 by April 10, 2008, in full
satisfaction of the property equalization payment awarded Sheila in the
judgment. Subsequently, the parties
entered another stipulation, which became part of the superior court’s order of
April 21, 2008. Under that stipulation
and order, Sheila was to be paid $218,000 through escrow no later than April
30, 2008. The equalization payment is
being challenged by Duane in this proceeding.
In
2009, Duane filed an order to show cause regarding
Sheila filed a declaration of income and expenses dated April 1, 2009, using
mandatory Judicial Council form FL-150 (rev. Jan. 1, 2007). The declaration asserted that Sheila had no
salary or wages and that she received one-time payments during the prior 12
months of $218,000 from Duane and $39,000 as an inheritance from her
mother.
In
April 2009, the superior court held a hearing on Duane’s order to show cause regarding
modification of spousal support.
On
May 26, 2009, the trial court issued a ruling upholding previous spousal
support orders, finding that Duane had not established a material change in
circumstances since the most recent support order was made. This ruling regarding spousal support is
being challenged by Duane in this proceeding.
The
issues raised in this appeal were brought before the trial court by Duane’s April
23, 2012, motion to set aside the previous judgments in their entirety or,
alternatively, as to the portions addressing spousal support and the
equalization payment. The motion
asserted that Sheila committed fraud, perjury or a violation of her fiduciary
duty to disclose her cohabitation with Randy Newingham, a fact material to her
need for spousal support.
Duane
supported his motion with a written statement from Newingham and transcripts of
Sheila’s depositions and courtroom testimony.
These documents were submitted to the superior court as exhibits on June
12, 2012, the day of the hearing on Duane’s motion to set aside. At that hearing, the superior court stated
that its decision on Duane’s motion to set aside would be continued to the
hearing on June 21, 2012, so that it could look at the transcripts
submitted.
At
the June 21, 2012, hearing, the first issue addressed by the superior court was
Duane’s motion to set aside. The court
stated its reasons for denying the motion.
The same day, the court filed a minute order stating that Duane’s motion
was denied. The appellate record does
not show whether Duane made a timely request for a statement of decision.
In
September 2012, Duane filed a notice of appeal from the June 21, 2012, order
that denied his motion to set aside.
DISCUSSION
I. BACKGROUND REGARDING MOTIONS TO SET ASIDE JUDGMENTS
In
1993, the Legislature undertook to clarify and rationalize the law governing
the relief that could be obtained from judgments entered in family law matters
by enacting Family Code sections 2120 through 2129, also known as the “Relief
from Judgment†chapter.
name="_ftnref2" title="">[1] (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32.) These are the statutory provisions that apply
to the motion underlying this appeal.
Section
2121, subdivision (a) provides that, in a proceeding for dissolution of
marriage, “the court may, on any terms that may be just, relieve a spouse from
a judgment, or any part or parts thereof, adjudicating support or division of
property, after the six-month time limit of Section 473 of the Code of Civil
Procedure has run, based on the grounds, and within the time limits, provided
in this chapter.†Therefore, a litigant
pursuing a motion to set aside may obtain relief only if the litigant timely
raises a statutory ground for relief and
satisfies the two conditions set forth in subdivision (b) of section 2121:
“In all proceedings under this chapter,
before granting relief, the court shall find that the facts alleged as the
grounds for relief materially affected the original outcome
materially benefit from the granting of the relief.â€
The
grounds for a motion to set aside a judgment are listed in subdivisions (a)
through (f) of section 2122 as actual fraud, perjury, duress, mental
incapacity, mistake, and the failure to comply with statutory disclosure
obligations. Section 2122 also specifies
time limits in which to raise each ground (those time limits are not relevant
to this appeal).
When
a litigant files a motion under the Relief from Judgment chapter and “a timely
request is made, the court shall render a statement of decision where the court
has resolved controverted factual evidence.â€
(§ 2127; cf. Code Civ. Proc., § 632 [statement of decision after court
trial].)
II. STANDARD OF REVIEW
A. General Principles Regarding Abuse of Discretion
Section
2121, subdivision (a) provides that a superior “court may, on any terms that
may be just, relieve a spouse from a judgment†adjudicating support or the
division of property, subject to the time limits and grounds set forth in the
statute. The statutory phrase “may, on
any terms that may be just†grants discretionary authority to the superior
court. As a result, appellate courts
review a superior court’s refusal to set aside a judgment under an abuse of
discretion standard. (
Cal.App.4th 128, 138.)
The abuse of
discretion standard calls for varying levels of deference depending on the
aspect of the trial court’s ruling under review. (In re
Marriage of Walker (2012) 203 Cal.App.4th 137, 146.) The superior court’s findings of fact will be
upheld if supported by substantial evidence.
(Ibid.) The superior court’s resolutions of questions
of law are subject to independent (i.e., de novo) review. (Ibid.) Where the rules of law applicable to the facts
of the case grant the superior court a range of discretionary options, the
appellate court will uphold the superior court’s action so long as it falls within
that discretionary range. (See
State Personnel Bd. (1991) 233 Cal.App.3d 813, 831 [an “abuse of discretion
standard … measures whether, given the established evidence, the act of the
lower tribunal falls within the permissible range of options set by the legal
criteriaâ€].)
B. Doctrine of Implied Findings
In this case,
Duane did not make a timely request for a statement of decision or assert there
were any omissions or ambiguities in the superior court’s oral statement of the
reasons for its denial of the motion to set aside. Therefore, we are bound by the doctrine of
implied findings. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134;
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2013) ¶¶
15:101-15:102 & 15:116, pp. 15-22 to 15-23 & 15-26.) Under this doctrine, an appellate court must
presume the trial court made implied findings of fact that are favorable to the
judgment. (In re Marriage of Arceneaux, supra,
at p. 1134.) This doctrine is derived
from the general principle of appellate law that the appealed judgment or order
is presumed correct and all intendments and presumptions are indulged to
support it on matters as to which the record is silent. (See Denham
v. Superior Court (1970) 2 Cal.3d 557, 564; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42,
58 [doctrine of implied findings is a logical corollary of fundamental
principles of appellate review].)
The doctrine of
implied findings is limited by the principle that a finding favorable to the
judgment can be inferred only if it is supported by substantial evidence. (E.g., People
ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems,
abuse of discretion standard of review, appellate court must accept trial
court’s implied findings of fact supported by substantial evidence];
(2010) 182 Cal.App.4th 729, 745 [implied finding inferred by appellate court
only if supported by substantial evidence].)
We have set
forth the doctrine of implied findings because the version of facts presented
in Duane’s appellate briefing does not comply with the doctrine or the
substantial evidence standard of review,
appellate court must view the evidence in the light most favorable to the prevailing
party—that is, we must give the prevailing party the benefit of every
reasonable inference and must resolve all evidentiary conflicts in favor of the
prevailing party. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
III. DUANE’S CLAIMS OF REVERSIBLE ERROR
Duane’s
motion to set aside presented a number of options for relief. Duane’s first choice was to have all of the
July 21, 2004, ruling and related October 2004 judgment set aside. As an alternative, he requested that the part
of the ruling and related judgment concerning spousal support be set
aside. If the court did not grant that
relief, Duane requested it to set aside all or part of the April 2008, ruling that
required him to pay Sheila $218,000.
Failing that, Duane requested the court to set aside all or part of the
judgment based on the May 26, 2009, ruling.
The
superior court denied the motion. On
appeal, Duane asserts the superior court committed a number of reversible
errors.
A. Newingham’s Notarized Written Statement
Duane
contends that the written statement of Randy Newingham, which sets forth
information about his cohabitation with Sheila, should have been admitted and
considered. The written statement bears
Newingham’s signature and the seal of a notary public from the State of
Illinois that indicates the statement was “[s]ubscribed and sworn before me
this day of January 27, 2010.†The
statement addresses the topic of the cohabitation of Newingham and Sheila as
follows:
“I, Randy Newingham met Sheila Prokuski
on March 23, 2003. From March 29, 2003
until the end of April 2003, Sheila and I lived together in hotels and
motels. Sheila and I then moved to St.
Louis Missouri where we lived in my camper until the end of May 2005. During this period all of the living expenses
and personal bills were paid by me with no contribution from Sheila. The amount of Sheila’s share of these
expenses is approximately $20,000.â€
The
remainder of the written statement addresses matters involving a boat named
“America,†such as the funding of its purchase and the expenditure of labor and
funds on its restoration.
Duane’s
opening appellate brief states that (1) “it appears†that the superior court
excluded Newingham’s written statement, (2) the court gave no reason for the
exclusion, and (3) Duane “surmises that is was excluded under the hearsay
rule.â€
We
reject Duane’s position that the superior court excluded and did not consider
Newingham’s written statement. Our
conclusion is based on our interpretation of the contents of the reporter’s
transcript for the hearings held on June 12 and 21, 2012 — an interpretation also
adopted in a declaration signed by Duane’s attorney.
Duane’s
counsel submitted Newingham’s written statement and other exhibits to the court
on the day of the June 12, 2012, hearing.
Newingham’s written statement was labeled “Exhibit 1.†At that hearing, the court expressed
reluctance to consider it. However,
nine days later at the hearing where the court announced its decision, the
court responded to a point raised by Duane’s counsel by stating: “I considered the exhibits you filed. Even though they were filed late, I took that
into consideration.†Because Newingham’s
statement was one of the exhibits submitted by Duane’s attorney, we interpret
the court’s statement to mean that it did consider Newingham’s statement.
We
note that, in his November 1, 2012, declaration regarding omitted portions of
the record, Duane’s attorney adopted the same interpretation of the superior
court’s statements about Newingham’s written statement. Specifically, Duane’s attorney asserted that the
judge “not only admitted them into evidence but considered them as well.â€
refers to the late-submitted exhibits, which included Newingham’s written
statement.
Therefore,
Duane’s argument that the superior court committed reversible error by excluding
Newingham’s written statement from evidence fails for the simple reason that
the court considered the statement and did not exclude it.
B. Transcript of 2004 Trial
Duane
asserts that the superior court denied his motion to set aside the judgment
from 2004 because he did not produce transcripts of the four days of trial
conducted in 2004. Duane contends those
transcripts were unnecessary because Sheila “already admitted that the issue of
cohabitation had not been previously decided .…†He argues that the superior court abused its
discretion by requiring more proof that the issue of cohabitation had not
previously been decided—particularly when that additional proof “would have
been unnecessarily burdensome to provide .…â€
We
conclude that Duane’s interpretation of the superior court’s reasoning
concerning the 2004 judgment is unduly narrow and, thus, inaccurate. The superior court orally set forth its
ruling on Duane’s motion to set aside at the June 21, 2012, hearing. As to the 2004 judgment, which became final
when remittitur was issued by the clerk of this court in August 2006, the court
stated:
“In that [Duane] has failed to meet his
burden of proof to provide any evidence the 2004 judgment was procured by fraud
or perjury, the motion to set aside any of that judgment is denied. No transcript of the proceedings related to
the 2004 judgment were provided to the Court or filed with the Court, nor was
any evidence presented to indicate that [Duane] would have been disadvantaged
in any way by the testimony that’s been presented in the exhibits provided last
time at the hearing.â€
The
court’s reference to the lack of evidence that Duane was “disadvantaged†relates
to the conditions set forth in subdivision (b) of section 2121:
“In all proceedings under this chapter,
before granting relief, the court shall find that the facts alleged as the
grounds for relief materially affected the original outcome
materially benefit from the granting of the relief.†(Italics added.)
Thus,
the superior court’s decision regarding the 2004 judgment had two independent bases. First, the court found Duane did not prove
the judgment was procured by fraud or perjury.
Second, the court determined Duane did not establish that the alleged
fraud and perjury materially affected the terms of the 2004 judgment. In this appeal, Duane cannot show reversible
error unless he establishes that both of the determinations were wrong.
Duane’s
argument about the transcript from the 2004 trial does not establish the superior
court erred in both of its determinations.
Even if we accepted Duane’s position that the issue of cohabitation was
not decided in 2004 and, therefore, Duane was not barred by the finality of
that judgment from raising the issue in a motion to set aside the judgment, that
position alone does not establish reversible error. Duane still must show that (1) Sheila
committed fraud or perjury before the 2004 judgment was entered and (2) that
Duane was disadvantaged by that fraud or perjury.
In
view of the conflicting evidence in the record regarding when Sheila began
cohabiting with Newingham, we cannot presume it began before the October 2004
judgment was entered. (See fn. 3,
Instead, we must presume that the cohabitation occurred after that
judgment was entered and, therefore, could not have influenced that judgment’s requirement
for spousal support.
In
short, Duane’s argument regarding the transcript falls far short of establishing
all of the elements of reversible error.
C. Nondisclosure of Cohabitation from Separation to Final
Judgment
Duane
asserts that the superior court erred in denying his motion to set aside the
2004 judgment because (1) from separation to final judgment (September 6, 2002
through August 23, 2006) Sheila had a fiduciary duty to disclose
(2) from March 2003 through final judgment, she failed to disclose that she was
cohabitating with Newingham. Our
analysis of this argument will divide the period into two parts—the first is
the period the matter was pending in superior court and the second is the
period during the appeal.
(September 2002 – October 2004)
Duane
cannot prevail on his argument that Sheila had a fiduciary duty to disclose her
cohabitation with Newingham before
the October 2004 judgment was entered.
First, the superior court did not make an express finding that Sheila
cohabitated with Newingham during this period.
Second,
as stated earlier, the doctrine of implied findings requires this court to infer
that Sheila and Newingham did not cohabitate prior to October 2004. (See pt. II.B, fn. 3, ante.) This implied finding
is required because it is favorable to the superior court’s decision and it is
supported by substantial evidence. (See
SpeeDee Oil Change Systems, Inc.,
supra, 20 Cal.4th at p. 1143 [implied
findings favorable to decision are made by appellate courts if supported by
substantial evidence].) The substantial
evidence includes Sheila’s May 2012 declarations and her deposition and
courtroom testimony. Her declaration
states that she did not cohabitate with another man during the pendency of the
dissolution proceeding. Her deposition
testimony indicates that she lived with Newingham in 2006 through sometime in
2008. This evidence supports an implied
finding that Sheila did not cohabitate with Newingham prior to October 2004, even
though Newingham’s written statement provides a conflicting version of
events. It is well established that the
testimony of a single witness, even a party in an action for the dissolution of
marriage, constitutes substantial evidence.
(In re Marriage of Mix (1975)
14 Cal.3d 604, 614.)
(October 2004 – August 2006)
Duane’s
argument regarding the nondisclosure of cohabitation includes the period during
which his appeal of the October 2004 judgment was pending before this
court. His position regarding this
period has both factual and legal flaws.
As
to the facts, Sheila admitted that she cohabitated with Newingham in 2006, 2007
and 2008, but the portions of her testimony that are included in the appellate
record do not indicate when in 2006 the cohabitation (as opposed to the
relationship itself) began. Given this
state of the record, Duane has not established that Sheila and Newingham were
cohabitating prior to the remittitur in August 2006.
As
to the legal basis for his position, Duane has cited no authority for the
proposition that a litigant in a marriage dissolution proceeding has an
affirmative duty to disclose any cohabitation that begins during the pendency of an appeal. Section 2100 sets forth the Legislature’s
findings and declarations of public policy regarding the disclosure of assets
and liabilities during a proceeding for the dissolution of marriage. Subdivision (c) of section 2100 states that
“each party has a continuing duty to immediately, fully, and accurately update
and augment that disclosure to the extent there have been any material changes
so that … at the time of trial on these issues, each party will have full and
complete knowledge of the relevant underlying facts.†Duane’s arguments do not address why this
statutory duty of continuing disclosure, which by its terms operates until the
time of trial, should be extended to include postjudgment periods. Given the lack of authority and reasoned
argument on this point, we will not adopt the novel legal proposition that an
affirmative duty to disclose applies to cohabitation that begins during the
pendency of an appeal.
Therefore,
we conclude that the superior court did not commit legal or factual error when
it rejected Duane’s arguments regarding the nondisclosure of cohabitation that
allegedly occurred between separation and remittitur.
D. Claims of Error Regarding Refusal to Set Aside May 26,
2009, Judgment
In
February 2009, Duane filed an order to show cause seeking a modification of his
monthly obligation to pay $1,000 in spousal support. On May 26, 2009, the superior court denied this
request. On appeal, Duane argues that
the superior court’s denial is erroneous on two separate grounds.
First,
Duane contends that Sheila failed to disclose that she was cohabitating with
Newingham and, because cohabitation creates a rebuttable presumption of reduced
need, this failure to disclose materially affected the outcome of his request
for a modification. Second, Duane
contends that Sheila failed to disclose that she had substantial income and
substantial assets and his proof of her failure to disclose assets, alone, was
sufficient to show the outcome of his motion was materially affected.
Need
Section
4323, subdivision (a)(1) provides that “there is a rebuttable presumption,
affecting the burden of proof, of decreased need for spousal support if the
supported party is cohabiting with a person of the opposite sex.†The verb phrase “is cohabiting†is in the
present tense. Consequently, one
practice guide has restated the provision in section 4323 as follows: “An obligor seeking a spousal support
reduction or termination need simply show the obligee is now ‘cohabiting with a person of the opposite sex.’†(Hogoboom, et al., Cal. Practice Guide:
Family Law (2013) Modifications of Orders and Judgments, ¶ 17:205, italics
added.)
The
evidence presented by Duane does not establish that Sheila’s cohabitation with
Newingham extended into 2009, much less was continuing when she filed her
declaration of income and expenses in April 2009 before the hearing on Duane’s
order to show cause. Indeed, viewing the
evidence in the light most favorable to the judgment, we must conclude that the
cohabitation ended in October 2008.
Therefore, based on the explicit terms of the statute that govern the
application of the presumption of reduced need it is clear that the presumption
does not apply to the circumstances of this case that existed in April and May
of 2009 when the superior court considered and decided Duane’s request for
modification of spousal support. Furthermore,
Duane has presented no case law or policy arguments that justify a nonliteral
interpretation of the presumption of reduced need.
Therefore,
we conclude that Duane has not shown that the trial court committed reversible
error when it refused to set aside the May 26, 2009, order based on Sheila’s failure
to disclose prior cohabitation.
Duane
contends that on April 23, 2009, in response to his motion to modify spousal
support, Sheila “declared that she had no income and limited assets; when, in
fact, she had substantial income and substantial assets.†In Duane’s view, the superior court found
that Sheila had failed to disclose substantial assets, but also found that the
assets and her bed-and-breakfast business were immaterial to setting aside the
prior judgments and orders because Sheila claimed she derived no income from
them. Again, Duane has not accurately
described the superior court’s findings.
The court did not find a failure to disclose substantial assets.
The
superior court addressed Duane’s motion to set aside the May 26, 2009, ruling that
denied any modification to his spousal support obligations by stating that
ruling was based on the finding that Sheila’s business venture was not
producing any income at that time. The
superior court also noted the materiality requirements in subdivision (b) of
section 2121 and stated:
“Here, the Court is presented with the
conclusionary statements of [Duane] that there would have been a different
result. Even assuming that [Sheila] was
not truthful in her April 8th, 2009, testimony as claimed by [Duane], the Court
cannot find that there would have been a materially different result based upon
review of Judge Dulcich’s order.â€
Duane
has failed to show that the foregoing reasoning by the superior court contains
error. First, Duane has not shown that
Sheila did, in fact, have a substantial income that she failed to
disclose. Her income and expense
declaration dated April 1, 2009, stated that she had no income from salary, wages
or investment income, but in item 8 of the preprinted form she stated she received
additional income in the last 12 months in the amount of $218,000 from the
enforcement of a judgment against Duane and a $39,000 inheritance from her
mother. Duane’s citations to the record
utterly fail to establish Sheila had income
not disclosed in her declaration, her March 2009 deposition testimony, or her
April 2009 courtroom testimony.
Second,
Duane’s position that Sheila had substantial undisclosed assets is based on his assertion that “the Honorable Stephen
Schuett found that [Sheila] had failed to disclose substantial assets,
including; the money she gambled away, $73,000; the money she used to restore a
185 foot boat, The America,
substantially more than $129,000; the money she used to buy the
breakfast business in addition to the one she conducts on The America; and, several other boats
As
the basis for his position that the superior court made the foregoing finding
of substantial undisclosed assets, Duane cites lines four through eight of page
13 of the reporter’s transcript, which lines constitute the first half of the
following quote:
“Secondly, the payment for work on The
America – that is another issue that was raised in the moving papers – nothing
in the record indicates that this would have altered the Court’s ruling. The order was based on a lack of income from
that business. Finally, there was a
question on who actually worked on the boat, The America. Again, nothing presented by [Duane] would
indicate how that would have materially altered the Court’s ruling. Therefore, the motion is denied.â€
In
view of these statements by the superior court, we cannot accept Duane’s
interpretation that the court found Sheila failed to disclose substantial
assets. Consequently, we reject Duane’s
argument that the superior court committed reversible error in denying his
request to set aside the May 26, 2009, order that refused to modify his spousal
support obligation. As an alternate and
separate ground for our conclusion, Duane also has failed to establish the
superior court’s finding regarding materiality was error.
E. Standing to Challenge Spousal Support While Charged with
Contempt
Duane
argues that he was entitled to bring his motion to set aside the previous
orders and judgments regarding spousal support even though there was a pending
order to show cause regarding his allegedly chronic failure to make the ordered
spousal support payments. (See
generally, In re Marriage of Hofer
(2012) 208 Cal.App.4th 454, 458-460 [husband’s appeal dismissed under
disentitlement doctrine].) We need not
address this argument because we have not relied on the pending contempt
proceedings as a ground for upholding the superior court’s denial of his motion
to set aside.
DISPOSITION
The
June 21, 2012, order that denied petitioner’s motion to set aside is
affirmed. Respondent shall recover her
costs on appeal.
name="_ftn1" title="">* Before Levy, Acting P.J., Detjen, J. and Peña, J.
name="_ftn2" title="">[1] Unless stated otherwise, all further statutory references
are to the Family Code.
