Shapiro v. Martenyi
Filed 2/26/13 Shapiro v. Martenyi CA1/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
MARNI
SHAPIRO,
Respondent,
v.
MATHEW
MARTENYI,
Appellant.
A133426
(San
Francisco County
Super. Ct.
No. FDI-94-013169)
Appellant
Martenyi appeals from a July 2011 order of the
motion to set aside a judgment of dissolution of his marriage to respondent
Shapiro, a judgment filed in December 1994.
We find that substantial evidence supports the trial court’s entry of
this order, and reject appellant’s contention that the documents indicating his
agreement to that dissolution
contained forgeries of his signature. We
also reject other contentions raised by appellant, e.g., that the trial judge
who heard and denied his motion was biased against him because of his having
been sentenced to prison for a federal
crime. We affirm the order.
The parties were
married in 1983 and separated in 1993; they had one child between them, a
daughter born in 1985. In 1981, they
purchased a residence in San Francisco,
where respondent still lives. During
that period of time, appellant was an attorney practicing in the Bay Area and
respondent a school teacher employed by a private school in Marin County.
In
October 1993, appellant was arrested in San Francisco
and transported to Florida
because of his alleged involvement in a drug conspiracy there. He was scheduled to be tried there in January
1994, but pled guilty to the charge and was sentenced to federal prison. He served his sentence in federal prisons in Tallahassee,
Florida and Dublin,
California and at several other
locations. He was released from federal
prison in May 1996.
According
to appellant’s filings in the trial court, after his guilty plea the parties
“agreed to dissolve our marriage and began making preparations for our family’s
changed circumstances . . . .†On October
31, 1994, respondent filed a petition for dissolution of the
marriage.
After
that point in time, the parties’ versions of events vary substantially. Per respondent and, as noted further below,
the trial court, in October 1994 respondent’s attorney (the same attorney
representing her in this court) forwarded to appellant, and appellant signed, a
Marital Settlement Agreement
(MSA) and an Interspousal Transfer Deed (deed) transferring to respondent his
interest in their San Francisco home.
provisions relating to the dissolution.
Attached to both documents were certificates by a
Francisco, attesting to the validity of appellant’s
signatures. Both certificates were dated
November 16, 1994. The MSA was then incorporated into a judgment
of dissolution entered by the superior court on December 27, 1994.
According
to the trial court’s records, a copy of the Notice of Entry of Judgment was
mailed by the clerk of the San Francisco Superior Court to appellant at the
Pleasanton Federal Correctional Institution in Dublin
on the same day. Further, per
respondent’s filings with the trial court, on December 30, 1994, respondent’s counsel also mailed
copies of the Judgment of Dissolution (with a copy of the attached MSA and the
Notice of Entry of Judgment) and other documents to a Moraga,
California, address. The address to which they were mailed was one
that appellant had previously requested they be sent, via a handwritten letter
to respondent’s counsel.
Per
appellant, however, matters proceeded differently. First of all, when he learned of the filings
of these documents, on June 30, 2010,
he wrote respondent, his former wife, and complained that the terms of the MSA
were unfair to him, especially regarding the division of “the community assetsâ€
and asserted that those documents “did not and does not represent my
intention.†Sometime later, he took the
position that he (1) wanted changes made to the MSA and (2) never signed that
document or received any of the other documents respondent and her attorney
allegedly sent him. According to him,
his signatures on the MSA and deed were forged, and he never appeared before
the notary public who provided a “California All-Purpose Acknowledgment†for
both the MSA and the deed. Appellant asserted that it was not until “the end of
June 2010†that he learned a “forged deed†to the property had been recorded in
1994 and the MSA, also with a similar forged signature, had been filed along
with the judgment.
On
April 4, 2011, appellant
filed a motion to set aside the
judgment together with a supporting memorandum of points and authorities and
declaration. Respondent filed an
opposition to the motion, to which appellant replied. The trial court (Judge Ronald Albers) set the
matter for a hearing on June 23, 2011;
that hearing concluded on June 27,
2011. After hearing the testimony
of the parties and two other witnesses (one being respondent’s counsel), Judge
Albers ruled that appellant had “not sustained the burden of proof†regarding
the alleged forgeries of his signatures on the MSA and deed. The court thus ruled that the 1994 judgment
“will stand†and, on July 29, 2011,
entered an order to that effect.
Although
he did not ask for a statement of decision by the trial court, appellant filed
a timely notice of appeal on September
26, 2011. But that was not
all he filed; on July 27, 2011,
he filed an “Affidavit of Prejudice—Peremptory Challenge to Judicial Officerâ€
under Code of Civil Procedure section 170.6.
Judge Albers denied that challenge as “untimely†the following day. An “Amended Statement of Challenge†was filed
by appellant on August 1, 2011. In it, he complained that Judge Albers had
shown bias against him by noting that he had been a convict and a “felon
dealing with the price of moral turpitude . . . .†Respondent filed a response thereto and, on August 8, 2011, Judge Albers issued
and filed an order striking appellant’s “Statement of Disqualification.â€
A.
The Principal Issue Presented and
our Standard of Review.
This case presents one principal
issue for our review, i.e., was there substantial evidence to support the trial
court’s order of July 29, 2011,
denying appellant’s motion to set aside the 1994 Judgment of Dissolution of his
marriage to respondent. As noted above,
that judgment was entered on December
27, 1994. Appellant did not
file his motion to set aside that judgment until April 2011.
Pursuant
to Code of Civil Procedure section 473, a party may move to be relieved of a
default judgment entered as a result of “mistake, inadvertence, surprise or
excusable neglect†within a period of six months after entry of the
judgment. (Code Civ. Proc., § 473,
subd. (b).) However, regarding judgments
entered under the Family Code—as this clearly was—section 2122 of that code
provides longer periods during which relief may be sought, i.e.: (1) one year
from the date of entry of judgment in instances where there was mistake of law
or fact (Fam. Code, § 2122, subd. (e)); (2) two years where duress or
mental incapacity can be shown (id., subd.
(c) and (d)); and (3) one year after the date the complaining party “either did
discover, or should have discovered†any actual fraud, “perjury,†or failure to
comply with statutory disclosure requirements regarding assets and
liabilities. (
(a), (b), and (f).) Pursuant to that
section, therefore, appellant had to establish in the trial court that (1)
respondent obtained the dissolution judgment through fraud, perjury or failure
to comply with the Family Code’s disclosure requirements, and (2) he discovered such no earlier than (and should not have
discovered it any earlier than) one year before he filed his April 4, 2011,
motion to set aside the December 1994 judgment of dissolution.
Indeed,
in the trial court appellant specifically conceded that the first thing he had
to prove was “one, that there was a fraud or perjury . . . under
2122 and A through F subsection and part and parcel of that indicates that if
the court is inclined to set aside the judgment that I also must be able to
show that there is an inequity in terms of the judgment.†Judge Albers then stated that the latter issue
was not yet before him because “it’s not relevant to the preliminary
issue. If I get past the issue of
resolving [whether] the documents are fraudulent and not your signature then
[we will] come back and look at the second or third prong.†Appellant promptly responded: “That was my understanding, too, Your Honor.â€
Obviously,
whether the documents are fraudulent is a purely factual issue and, therefore,
governed by the substantial evidence standard of review. “If there is substantial evidence to support
a finding, an appellate court must uphold that finding even if it would have
made a different finding had it presided over the trial. [Citations.]
An appellate court does not reweigh the evidence or evaluate the
credibility of witnesses, but rather defers to the trier of fact. [Citations.]
‘The substantial evidence [standard of review] applies to both express
and implied findings of fact made by the superior court in its statement of
decision rendered after a nonjury trial.’ [Citation.]†(Cahill
v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 958; see also Eisenberg et al., Civil Appeals &
Writs (The Rutter Group 2011) ¶¶ 8:38 et seq.)
The
first and main issue before us, therefore, is whether there was substantial
evidence before the trial court that the MSA and deed were not procured via fraud or perjury.
If there was such substantial evidence, we must affirm the order of the
trial court. The law is clear that this
standard is “easily satisfied†because the “testimony of a single witness, even
the party himself or herself, may be sufficient†to meet it. (9 Witkin, Cal.
Procedure (5th ed., 2008) Appeal, § 369, pp. 426-427.)
Appellant
also raises some other issues, namely: (1) the alleged bias of Judge Albers,
(2) the alleged bifurcation of the evidence at the hearing before him (so as to
exclude evidence of the “gross inequity†of the MSA’s division of the
property), and (3) whether the MSA and judgment filed in 1994 violated Business
and Professions Code section 6068 or (4) was contrary to “public policy.†We will deal with those issues in a later
section of this opinion.
B.
Substantial Evidence Supports the
Trial Court’s Ruling.
Just
a few years ago, our colleagues in Division Four of this court directed their
attention to the issue of who bears the burden of proof in an action brought
under Family Code section 2122. In
that, after the enactment of that statute “the policy favoring the finality of
judgments has not changed. That policy
militates strongly in favor of keeping the burden of proof under Family Code
section 2122 with the moving party, at least where, as here, relief is sought
after the time to act under Code of Civil Procedure section 473 has
expired.
[Citation.] . . . Accordingly, we conclude that a party
seeking relief from a judgment that incorporates an unequal marital settlement
agreement must bear the burden of proof under Family Code section 2122, at
least where the judgment, as in this case, is at least six months old.†(Kieturakis,
supra, at p. 90.)
In
this case, during the course of the hearing and in response to a question from
the trial court, appellant conceded that he had to show, first of all, “that
there was a fraud or perjury . . . under 2122.â€
because, at the conclusion of the hearing, he specifically stated that
appellant had “not sustained the burden of proof†in this action. We also agree, and we find that substantial
evidence supports that ruling by the trial court.
First
of all, there was substantial evidence before that court regarding the
execution by appellant of both the MSA and the deed, and that appellant’s
assertions that they contained signatures that were forged were both very
belated and also unsupported by the evidence.
As
already noted, the judgment filed December
27, 1994, had a copy of the MSA attached to it. The MSA was purportedly signed by respondent
wife on October 31, 1994,
and by appellant on November 15, 1994. And, on the third page of the MSA is a
hand-written note in, apparently, appellant’s handwriting and under the typed
heading “CUSTODY OF MINOR CHILDREN†which reads: “Husband and Wife shall have joint legal
custody.â€
are very similar to those on the other key documents, including one which
appellant admitted signing.
Additionally, the purported signature of appellant on the MSA is very
similar to that on the document appellant admitted signing and filing. Similarly, the deed also bears a similar
signature by appellant, albeit dated November
16, 1994.
Both
the MSA and the deed were notarized by a then-licensed notary public, Sharlene
B. Franco, on November 16, 1994. Both certificates executed by Franco provide
her commission number and the fact that she was then licensed as a notary in
the City and County of San
Francisco until “Sept. 27, 1996.â€
specified by Civil Code section 1189.
Evidence Code section 1451, these certificates constitute “prima facie evidence
of the facts recited in the certificate and the genuineness of the signature of
each person by whom the writing purports to have been
signed . . . .â€
(Evid. Code, § 1451.) Under
Evidence Code sections 602 and 604, such means that there is a rebuttable
presumption as to the veracity of the facts asserted in the certificate, a
presumption which can only be overcome by “evidence . . . which
would support a finding of its nonexistence.â€
(Evid. Code, § 604.)
Appellant
introduced no such evidence. Indeed, at
the hearing, he conceded that, while he was imprisoned at the federal prison in
Dublin, he was “called out [of] my
work assignment†to meet with a notary (no name mentioned) who “came with a
stack of documents, and I was trying to review them, and she wanted to get
going. And I did the best I could with
the circumstances I was confronted with.â€
That person was, he testified, a “notary public†who wanted all the
documents signed.
However,
per his declaration and some attachments thereto, the notary objected to
appellant’s “interlineations and additions to [the] sections of the marital
settlement agreement . . . stopped me and said that I could not
make changes to the documents already blue pen signed by SHAPIRO and attorney
Emley. I said, if that were the case,
then I would not sign the Marital Settlement Agreement or the Appearance
Stipulation and Waivers, but would instead retain the documents for a visit
from SHAPIRO.†The declaration went on
to state that he then talked to his wife and “[s]he agreed to have the
documents provide for joint legal custody and for us to liquidate the PROPERTY
after the divorce.†Attached to this
declaration was a copy of the MSA bearing the signature of respondent and dated
November 14, 1994, but no
signature of appellant. That copy also
includes appellant’s apparent handwritten addition (albeit with slightly
different wording) to section V, the provision relating to the custody of minor
children.
In
his brief to us, appellant states that there was “overwhelming evidence before
the [trial] court that the Notary Acknowledgment of MARTENYI’S purported
signature was flawed obliterated any presumption it was MARTENYI’S
signature. The notary’s commission
expired September 27, 1996, with no record of the Notary Public Journal being
turned in as required by Government Code § 8209(a), or the inability to
locate the notary after diligent search by MARTENYI.â€
We
disagree. There was no evidence we can
locate in the record (nor does appellant cite us to any) that the notary’s
acknowledgement was “flawed†other than the fact that the San Francisco County
Clerk proffered a “Certificate of No Recordâ€, stating that it had no record of
a Notary Public Journal having been turned in by notary Franco to the County
Clerk’s office, as required by Government Code section 8209, subdivision (a).
presumption mandated by Evidence Code sections 602 and 604 still applies to the
two acknowledgements executed by notary Franco.
Moreover,
in her opposition to appellant’s motion to set aside the judgment and the MSA,
respondent notes that the notary public who verified the MSA and the deed
“mailed the MSA and [the deed] to my attorney via FedEx because the prison had
returned to my attorney his stamped and self-addressed envelope since the
stamps were unauthorized items which could not be given to an inmate.†Respondent’s counsel filed a declaration to
the same effect, and attached to it is a copy of a Federal Express form (a
“Recipient’s Copyâ€) reciting that, on November 16, 1994, that company had
delivered an envelope from Sharlene Franco in Danville, California, to respondent’s
attorney in San Francisco. Further, the
handwriting of Franco’s name on that Federal Express form appears very similar
to her signature on the two verifications appellant now asserts to be
forgeries. These documents, including
specifically the declaration filed by respondent’s counsel Emley, clearly rebut
appellant’s arguments that there was no proof that a licensed notary had
visited him while he was in the federal prison in Danville and secured and
verified his signature on the MSA.
Next,
appellant’s own assertions as to when he discovered what are significantly
contradicted by records provided to the trial court. For example, in his declaration in support of
his motion to set aside the judgment and MSA, appellant relates that he went to
Budapest, Hungary,
in June of 2010 to meet his daughter and participate in some family-related
matters. As a “[p]art of this process,â€
he brought to Hungary
many personal documents including his “divorce papers.†Then the declaration continued:
“33. When I reviewed the court file for the first
time in Budapest, I saw that
SHAPIRO submitted fraudulent documents in the processing of our divorce. Upon my return from Budapest
at the end of June 2010, I also discovered that she had recorded a forged deed
to the PROPERTY on November 18, 1994.
“34. The forged documents in the court file in
this action include the Marital Settlement Agreement that has a forgery of my
signature dated 11-15-94
and the Appearance, Stipulation and Waivers form that also has a forgery of my
signature dated 11-15-94.†In the trial court, appellant also
specifically testified that his “first discovery of the forgeries†was when he
was in Hungary
in June 2010.
title="">[9]
However,
the record before us rather clearly undermines appellant’s assertion that he
“discovered†the alleged forgeries “at the end of June 2010.†Specifically, on June 30, 2010, appellant addressed a two-page, typed
letter to respondent Shapiro. In it,
appellant related to his former wife that he and their daughter had just
visited Hungary and that, in the process, “[a]mong the documents I had to
gather to process the passports included our divorce papers which I pulled from
the court file in San Francisco. When I
reviewed the papers I was shocked and amazed and, frankly, could not believe
that I—or anyone else for that matter—could ever knowingly enter into such a
patently one-sided and unfair agreement.
It provides to you all of the community assets we had accumulated. It provides me nothing. [¶] I cannot believe that this was
either your or my intent. The
circumstances under which the divorce occurred were difficult, confusing and
fraught with physical, mental and emotional trauma. Perhaps that is why the court file
documenting our divorce is filled with flagrant errors, omissions and wholly
bereft of any integrity.
[¶] . . . I do not want the court file to remain as
it is and intend on setting the record straight that the documents contained
therein did not and does not represent my intention.â€
Nowhere
in this June 30, 2010,
letter did appellant make any mention that there had been any forgeries in
either the MSA or the deed. Nor does the
record contain any other evidence that, “at the end of June 2010,†appellant
discovered any alleged forgeries of the key documents, as alleged in his
declaration to the trial court. At
trial, respondent’s counsel asked appellant, indeed several times, whether his
June 30 letter to former wife alleged that “someone other than you†had signed
the MSA. Appellant avoided answering
that question several times, ending up saying that “the letter speaks for
itself.â€
Other
documents in the record also confirm that, even earlier, i.e., at the time he
was imprisoned, appellant was supplied with the key documents relating to the
dissolution of the parties’ marriage and the division of property. Thus, on December 21, 1994, while appellant was still in federal
prison, he sent a hand-written letter to his wife’s counsel enclosing “my
executed Declaration Regarding Service of Final Declaration of Disclosure and
Income and Expense Declaration. As
indicated therein, I have forwarded the Income and Expense forms to Marni
[i.e., respondent] on this date.
[¶] I assume that this matter is now concluded and I would
appreciate your providing endorsed filed copies of all the documents you have
filed with the court at the address indicated below.â€
office box address (a post office box appellant testified was known to and
available to his father), was then written beneath appellant’s signature (a
signature which, incidentally, is very similar to those appellant now claims
were forged.)
title="">[11]
Nine
days later, i.e., on December 30, 1994, respondent’s counsel’s office forwarded
to appellant at the designated Moraga post office box copies of all the key
documents, including specifically the judgment and notice of entry of
judgment. At the trial, attorney Emley
testified that he “approved†the letter and had “instructed†the paralegal in
his office who signed it “to use the special address that Mr. Martenyi
requested us . . . to use†to send him a copy of the December
27, 1994, judgment and the attached MSA.
At
trial, appellant was specifically asked if he received these documents; his
answers were several and varied. First,
he said he told respondent’s counsel he had “no idea whether you sent anything
or not,†then he said he “I assumed you sent them,†and lastly he said “I had
no way of knowing whether you sent them or not, Mr. Emley, I was in
prison.†But he conceded he never asked
respondent’s counsel for another copy of the “court documents.†He also conceded that he waited another 10
months after his alleged June 2010 “discovery†of the two forged signatures to
file his suit to vacate the judgment, and explained that he was ill during that
period but was “working on†the pleadings commencing the action.
Finally,
one other admission by appellant supports the trial court’s holding. In May 1994, appellant signed a deed
transferring to respondent, his then-wife, his interest in their San Francisco
house. This deed was never recorded in
the County Recorder’s
office, but was entirely consistent with the November 1994 deed, which
was. Appellant conceded that he signed
the May 1994 deed and “may have†delivered it to either respondent or her
attorney, and that he never attempted to rescind it. He explained that he executed this earlier
deed because “it was at or about the time that we were divorcing and I had not
known what my sentence would be,†although per a federal agency report “I would
be subject to a minimum of 10 years to life in prison†and thus wanted to “have
my interest in the property be transferred to her.â€
All
of these factors, especially when considered together, amount to substantial
evidence supporting the trial court’s ruling that appellant had not sustained
his burden of proof that the MSA and deed contained forged signatures.
C.
Other Issues Raised by Appellant.
As noted above, the alleged
forgery of his signatures on the two documents is the principal argument raised
by appellant in his briefs to us, but not the only one. We will now review, albeit more briefly, the
other various contentions asserted by him in those briefs.
First
of all, appellant contends that he was prejudiced by Judge Albers reference to,
and apparent consideration of, his federal drug conviction. He specifically references that court’s
statement at the conclusion of the hearing that appellant had a “strike against
[him] in terms of upholding [his] burden of proof in this matter†because he
was a “felon dealing with the price of moral
turpitude . . . .â€
Appellant objects to this, noting that he among the “seven million
formerly incarcerated residents of the State of Californiaâ€
and that his conviction is “a status condition over which [he has] no
control.†Further, in his reply brief in
this court, appellant accuses Judge Albers of having “bias†and “unabashed
disdain for Appellant†and thus “applied his ‘one strike’ rule freeing him from
actually adjudicating the merits of the motion.†These statements (and others even more
insulting and offensive
name="_ftnref12" title="">[12])
are both unsupported by anything said or any ruling made by Judge Albers, and
do not aid appellant in the slightest in this court.
Further,
it was appellant himself who disclosed, in his initial filings with the court,
that he had been convicted of a felony, and the law is clear that a trial court
has discretion to allow, subject to exceptions not applicable here, the use of
such a conviction to attack “the credibility of a witness.†(Evid. Code, § 788; see also Evid. Code
§ 352.) And this law applies
equally to the use of such prior convictions in civil actions as well as
criminal. As one of our sister courts
stated in Piscitelli v. Salesian Society (2008)
166 Cal.App.4th 1: “Evidence that a witness has been convicted of a felony is
admissible to attack the witness’s credibility.
(§ 788.) Such evidence is a
general attack on a witness’s character for honesty. [Citations.]â€
(Id. at pp. 6-7, fn.
omitted.) It was not an abuse of
discretion for the trial court to briefly note, in announcing its decision, the
fact that, as appellant had admitted, he was a convicted felon. However, it was and is manifestly improper
for appellant to twist Judge Albers’ brief reference to his felony conviction
into an accusation of bias.
Second,
appellant contends that respondent’s counsel, Christopher Emley, violated
Business and Professions Code section 6068 which states that an attorney must
not “seek to mislead the judge or any judicial officer by an artifice or false
statement of fact or law.†(Bus. &
Prof. Code, § 6068, subd. (d).) He
contends that Emley violated this statute by, among other things (1) preparing
“false documents†and “fraudulent divorce papersâ€, (2) failing to advise the
Family Law court or his client, respondent Shapiro, in 1994 that appellant was
incarcerated, and (3) authoring various false statements in the MSA regarding
community property, title to the family home, etc.
We
have no difficulty in similarly rejecting these broadside attacks on
respondent’s counsel. Because, as we
have explained above, there was substantial evidence supporting the trial
court’s finding that the MSA and deed were properly and validly executed by
both parties, all of these clearly tangential claims of appellant also fail.
Third,
appellant contends that Judge Albers improperly made a ruling “bifurcating the
presentation†of his case by not allowing him, during the hearing on his motion
to vacate the judgment, to present evidence or argue to the court concerning
the “gross inequity in the division of community property†provided for in the
MSA. We strongly disagree. Judge Albers clearly made the correct decision
by directing the parties to concentrate on the issue of the genuineness of the
MSA and deed, the two documents in question, and the signatures on them. Further, and as noted above, in the trial
court appellant specifically indicated that he both understood and agreed with
the trial court’s prioritization of issues, i.e., that the first and primary
issue before it was “resolving [whether] the documents are fraudulent and not
your signature . . . .â€
If, as the court ultimately found, the MSA and deed were signed by the parties
and those signatures properly verified, it clearly did not need to delve into
the issue of whether the parties “equitably†distributed their property via
those documents. Put another way, there
was no real “bifurcation†of issues in the case; rather, there were simply
rulings by the trial correct—and correct rulings we conclude—that it first had
to determine if the MSA and deed were valid.
If they were, there was little else to consider, given (1) the position
of appellant that they constituted forged papers and (2) the law as set forth
in Family Code section 2122.
Fourth
and finally, appellant argues that the 1994 judgment entered by the court
“violates public policy.†Citing Family
Code section 2120 and Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131 (Rubenstein),
appellant contends that the principle of res judicata should not apply in a
case such as this “where the default judgment is based on Respondent’s
misconduct as documented by Respondent’s fraud and perjury on the record.â€
Family
Code section 2120 recites the basic principle that this state has a “strong
policy of ensuring the division of community and quasi-community property in
the dissolution of a marriage†via the
“full disclosure of community, quasi-community, and separate assets†and that
“occasionally†such a division “is inequitable when made due to the
nondisclosure or other misconduct of one of the parties.†(Fam. Code, § 2120, subds. (a) and
(b).) In Rubenstein, the court
stated: “Section 2120 et seq. authorizes a dissolution judgment to be vacated,
irrespective of res judicata concerns, where the judgment was procured by fraud
or perjury. In such cases, the interest
in assuring the finality of judgments is outweighed by other
considerations. (§ 2120, subd.
(c).).†(Rubenstein, supra, 81 Cal.App.4th at p. 1152.) But in this case the trial court specifically
found that there was no fraud or perjury
committed by respondent or her attorney regarding the 1994 execution and filing
of the MSA, deed, and the resulting judgment.
And, as we have noted above, substantial evidence clearly supports this
ruling. Further, the trial court was
clearly not relying on the principle
of res judicata in its ruling. Thus, this argument also clearly fails.
IV. DISPOSITION
The trial court’s
order of July 29, 2011,
denying appellant’s motion to set aside the judgment of dissolution of his
marriage to respondent is affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
the testimony of respondent’s attorney Emley at the hearing, he sent copies of
the MSA to appellant at the federal prisons in Tallahassee,
Florida and Dublin,
California.
He testified that his understanding was that the copy dated by
respondent and Emley on October 31,
1994, was forwarded to the Dublin
facility and was the one ultimately signed by appellant on November 15, 1994.
least three other times, Judge Albers made clear to appellant that the first
matter he would consider in this case was whether there was any fraud or
perjury in connection with the verification of the key documents. Each time, appellant’s response indicated
that he understood and accepted that order of priority.
