Opinion
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of San Diego County, No. ED047912 Edlene C. McKenzie, Commissioner.
AARON, J.
I.
INTRODUCTION
Appellant Ginny Caldwell appeals from an order of the trial court denying her motion to set aside a judgment of the trial court, pursuant to Code of Civil Procedure section 473, subdivision (b). Ginny filed a marital dissolution action against her husband, Michael Caldwell, in 2000. Ginny and Michael signed a marital settlement agreement in 2003 in which they agreed that neither party would be required to pay the other child support or spousal support. The settlement agreement was not filed with the court until 2008, when Michael asked the court to enforce the agreement in response to Ginny's filing a motion for support arrears. Ginny's motion was based on a child and spousal support order that was entered by the court in 2000. The trial court incorporated the parties' settlement agreement into a judgment, and on December 19, 2008, entered the judgment nunc pro tunc to November 26, 2003, the date on which the parties executed the agreement.
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
For purposes of clarity, we will refer to the parties by their first names.
Ginny did not appeal from the December 19, 2008 judgment. However, a few months after the court entered that judgment, Ginny hired a new attorney who filed a motion on Ginny's behalf to set aside the judgment, pursuant to section 473, subdivision (b). After a holding hearing on Ginny's motion, the trial court denied the motion.
On appeal, Ginny contends that the trial court should have granted her motion to set aside the December 19, 2008 judgment. Ginny maintains that (1) the judgment is based on legally erroneous rulings, (2) the judgment was entered as a result of surprise and/or excusable neglect, and (3) the trial court refused to provide a statement of decision in response to Ginny's request for one, leaving Ginny and this court with an inadequate appellate record. We conclude that Ginny's contentions are without merit and affirm the order of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Ginny and Michael married on July 14, 1990, and separated on January 11, 2000. Ginny filed a petition for dissolution of the marriage in March 2000.
Ginny and Michael had four children during their marriage. In May 2000, the court entered a support order that required Michael to pay $2,433 per month in child support and $575 per month in spousal support.
In November 2003, Ginny and Michael executed a marital settlement agreement (MSA). The MSA granted Ginny permission to move the children to Canada, and settled "the parties' rights and obligations pertaining to: [¶]... [¶]... [s]pousal support and [¶]... [c]hild custody, child sharing, and child support." The MSA states that the "parties... agree that there will be no payment of child support." Both parties also waived "any and all rights to spousal support."
The parties initialed each page of the document, and had their signatures verified by notaries. Although the MSA included individual pages for the parties' attorneys to certify their participation in advising their respective clients as to the nature and significance of the MSA, neither party's attorney signed the document.
The MSA includes the following provision:
"This Agreement in its entirety shall be incorporated into, made a part of, and merged into any Judgment of Dissolution of Marriage entered in any proceeding now pending or hereafter commenced between the parties. This Agreement is not conditional upon its incorporation, merger or filing. Husband and Wife shall carry out and perform each and every provision of this Agreement to be observed or performed, whether or not the provision is made a court order...."
Neither party filed the MSA with the court after executing it.
On February 1, 2005, the court granted the parties' stipulated request "to bifurcate the status of the marriage from the remaining issues in the dissolution of marriage proceeding, " and entered a judgment of dissolution of the marriage. There is no mention of the MSA in the stipulation to bifurcate the issue of the parties' marital status.
On May 7, 2008, Ginny filed an order to show cause (OSC) to set child and spousal support arrears, based on the court's May 25, 2000 order setting child support at $2,433 per month and spousal support at $575 per month. According to Ginny's declaration filed in support of the OSC, she and Michael had reconciled between June 2000 and August 2003, but since August 2003, Michael had paid no child or spousal support. Ginny requested $211,957 in support arrears, including interest.
In response to Ginny's OSC, in October 2008, Michael filed his own OSC in which he requested that the court enter the executed MSA as a judgment, pursuant to section 664.6. In a declaration filed with his OSC, Michael alleged that at the time the parties separated for the second time, in May 2003, he and Ginny reached a global agreement that was reduced to an MSA, drafted by his attorney, Dennis Seymour. Attorney Seymour sent a draft of the MSA to Ginny's attorney, Beth Sample, in August 2003, and later sent the MSA directly to Ginny, in September 2003. The parties signed the MSA in November 2003, prior to Ginny and the children's move to Canada.
Section 664.6 provides: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement."
On December 16, 2008, the court held a hearing on the parties' motions. Ginny did not personally appear, but was represented at the hearing by her attorney, Joshua Mason. Attorney Mason argued that the court should not enter judgment based on the MSA because (1) some pages of the document were missing, and the signature page "is a completely different size and font than the rest of the agreement, " thereby calling into question the authenticity of the document; (2) the MSA did not dispose of all of the assets that the parties possessed at the time of dissolution; and (3) "entry of that judgment... really is not going to decrease the litigation that's going to have to happen in this matter."
It appears that the hearing was originally set for a date in October 2008, was continued to November 2008, and was ultimately conducted in December 2008. Judge Christine Goldsmith presided over the December 16, 2008 hearing.
The trial court concluded:
"I've looked through the lodged documents and the moving papers and its is true that there is some difference in fonts on some of these pages, yet, interestingly enough in the lodged documents, the pages all seem to be of the same paper and [have] the same amount of yellowing. All of the initials appear to look the same on each successive page. I'm satisfied this is an agreement that was signed by the parties when indicated in November of '03.
"So the motion to enforce this marital settlement agreement is granted effective the date of 11-26 of '03, and I am fully cognizant you are correct, Mr. Mason, that you will have to file a motion now regarding missed assets because there were missed assets I [sic] want to proceed on." (Second brackets in original.)
Shortly thereafter, the court asked Attorney Mason, "Do you want [Ginny's motion] still to be heard or not?" Mason responded, "[W]ell, probably not. Actually, not in light of today's ruling." The court then stated, "All right. I'll take it off calendar."
On December 19, 2008, the court entered judgment nunc pro tunc as of November 26, 2003, giving effect to the parties' MSA with respect to custody, support, and property division matters.
On January16, 2009, Ginny substituted in Garrison Klueck as her attorney. Four days later, on January 20, Ginny submitted an order to show cause (OSC) seeking to "[m]odify [an] existing order" for child support "filed on... 12/19/08." In her supporting declaration, Ginny stated that she would also be filing a motion to set aside the judgment.
On January 21, the court entered a document entitled, "Findings and Order After Hearing." The court stated in relevant part:
"1. Based on the paper quality and yellowing throughout the document, the original signatures and the initials of the parties on each page of the document, the Court is satisfied that the document submitted is authentic.
"2. The Respondent's motion to enter and enforce the Marital Settlement Agreement is granted effective November 26, 2003, the date of the last signature on the document.
"3. Pursuant to the agreement of counsel, the Petitioner's motion for child and spousal support arrears set for hearing on February 5, 2009 is taken off calendar."
Ginny did not appeal from this order, or from the judgment filed on December 19, 2008.
On February 11, 2009, Ginny submitted a second OSC in which she requested the following relief: "Set Aside Nunc Pro Tunc Judgment filed 12/19/08"; "Division of Omitted Assets"; "Child and Spousal Support Arrears"; and "Special Master to Decide all Remaining Issues." Ginny did not cite any statutory authority for her request in the OSC. However, in her "Points & Authorities In Support of Petition's Request to Set Aside Judgment, " Ginny argued that section 473, subdivision (b) permitted the trial court to grant her relief from the December 2008 judgment. Ginny's entire argument consisted of the following:
"CCP § 473(b) states as follows: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through mistake, inadvertence, surprise, or excusable neglect. Application for relief must be made no more than six months after entry of judgment.
"It is within the six-month time period for requesting a set aside of this Judgment. Petitioner was not present at the hearing, was not informed of the hearing by her counsel, and did not have an opportunity to present her case. The Judgment reaches back five years to enter orders for an impermissible retroactive modification of child support, and also omit[s] assets in the division of property. Petitioner asserts that the Marital Settlement Agreement ('MSA') presented to the court on that date was not an agreement into which she ever entered, in that it was a conglomeration of several versions of draft agreements. The Judgment was entered in Petitioner's absence, without an opportunity to be heard. Petitioner's counsel did not have Petitioner's authority to enter into a stipulation on that date, yet he did so. It would be in the interest of justice for the Court to set this Judgment aside, based on Petitioner's mistake, surprise, or excusable neglect.
"The nunc pro tunc Judgment is an impermissible retroactive modification of child support. It is counter to California public policy regarding all aspects of support."
The court held a hearing on Ginny's motion to set aside the judgment on March 18, 2009. After hearing from the parties' attorneys, the trial court made the following findings:
"Specifically, this is the mother's order to show cause [to] set aside[] the nunc pro tunc order that was made by Judge Goldsmith in December of 2008. The Court heard argument from counsel as well. The Court was pleased to receive the transcript from the actual hearing on December 16th, 2008. I believe that was important for the Court to see that because the Court was able to ascertain the extent to which this argument was made. The arguments to enforce the marital settlement agreement from 2003 and the arguments [in] opposition[.] [The court] does note that both parties were represented by counsel at the time of that hearing and while Ms. Caldwell was not actually present, she was represented by counsel.
"She did have notice of the hearing. It appears that her attorney was prepared and did argue the points in favor of not enforcing the actual judgment on that date. The Court notes the ruling of Judge Goldsmith at the conclusion of the evidence. She indicates that she looked through the lodged documents and moving papers, and she states it is true there [are] some differences in fonts on some of these pages, yet interesting enough, in a lodged document the pages all seem to be on the same [paper], and same yellowing, and the initials appear to be the same on each successive page. She concludes by saying that she is satisfied that this is an agreement signed by the parties when indicated in November of 2003.
"On the issue that is being brought up to set aside, the Court does find that this really is along the lines of relitigating that issue of the enforcement of the marital settlement agreement back in December of 2008. A lot of the similar arguments were made. [Ginny's attorney] is bringing up argument[s] at this time. This should have been brought by way of [a] motion to reconsider. That would have been the proper way because... the same arguments have been made essentially as to the reasons not to enforce the marital settlement agreement.
"It wasn't brought as a motion to reconsider. The Court doesn't find any grounds... have been articulated [--] or the argument made by counsel is not compelling [--] to set aside under 473. Again, mother knew of the hearing. She had notice. She had an opportunity to be present. She was present through her attorney and made arguments at that time.
"The Court does find that the motion to set aside should be denied. The Court is going to let [stand] Judge Goldsmith's decision [that] the marital settlement agreement be enforced."
The court issued a written order on June 29. Among other things, in the order, the court denied Ginny's motion to set aside the judgment, stating, "The Court rules that an objection to the entry of Judgment should have been made in a Motion to Reconsider. The Court finds that Petitioner/Wife's objections to the entry of judgment do not satisfy the requirements of C.C.P. §473."
On August 24, 2009, Ginny filed a timely notice of appeal from the court's June 29 order.
III.
DISCUSSION
A. Ginny has not demonstrated that the trial court abused its discretion in denying her request to set aside the judgment pursuant to section 473, subdivision (b)
Ginny makes three arguments as to why this court should reverse the trial court's denial of her motion to set aside the judgment pursuant to section 473, subdivision (b). First, Ginny contends that the December 2008 judgment was based on erroneous legal rulings, and therefore should have been vacated upon her motion in the trial court. The legal errors that Ginny contends the trial court made in entering judgment were granting judgment nunc pro tunc to 2003, which, Ginny asserts, amounted to an impermissible retroactive modification of the support order, and giving effect to the MSA despite the fact that it was not signed by the parties' attorneys.
Second, Ginny maintains that the trial court should have granted her relief from the judgment because it was entered as a result of surprise and/or the excusable neglect of her attorney. Finally, Ginny argues that the trial court's denial of her motion to set aside the judgment should be reversed because the trial court refused to provide her with a statement of decision.
1. Ginny moved pursuant to section 473, subdivision (b), not section 663
Ginny cites section 663 in support of her argument that the trial court should have set aside the judgment because it was based on an erroneous legal ruling. Section 663 provides:
"A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:
"1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.
"2. A judgment or decree not consistent with or not supported by the special verdict."
Section 663 requires that a party file a motion to set aside or vacate the judgment. However, Ginny did not move to set aside the judgment pursuant to section 663 in the trial court. The only authority that Ginny cited in the trial court in support of her request for relief from the judgment was section 473, subdivision (b). Subdivision (b) of section 473 provides in pertinent part:
"The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."
Because Ginny moved pursuant to section 473, subdivision (b), and not under section 663, the trial court properly considered whether to grant her relief on the basis of mistake, inadvertence, surprise, or excusable neglect. The court concluded that Ginny had not demonstrated that the judgment was entered as a result of surprise or neglect, and therefore denied Ginny's motion for relief from the judgment. Because Ginny did not move under section 663, the trial court had no reason to address Ginny's contentions that the judgment rested on two errors of law. The trial court clearly did not abuse its discretion in not granting Ginny relief on grounds that she never raised in that court.
For this reason, we reject Ginny's contention that the trial court should have granted her motion to set aside the judgment because the judgment was based on an incorrect legal decision.
Because we conclude that Ginny did not move to set aside the judgment pursuant to section 663, we need not consider the merits of Ginny's arguments as to the purported errors of law on which the judgment may have rested.
2. The trial court did not abuse its discretion in determining that the December 18, 2008 judgment was not entered as a result of surprise or excusable neglect
Ginny claims that the trial court abused its discretion in denying her motion to set aside the judgment under section 473, subdivision (b) on the basis of surprise and/or excusable neglect. We conclude that this contention is without merit.
In the trial court, Ginny argued that she had been "surprised" by the ruling at the March 18, 2009 hearing because she had not been notified of the hearing on Michael's motion to enforce the settlement agreement and was not present at the hearing. Ginny also claimed that she had not authorized her attorney to take her motion for support arrears off calendar. The trial court rejected Ginny's claim, finding that Ginny had been aware of the hearing, that she had been given notice of the hearing, and that she was represented by counsel who was prepared to argue the motion. Ginny does not challenge the sufficiency of the evidence supporting the court's findings in this regard. Instead, Ginny raises a new theory of "surprise" on appeal. Ginny now contends that she and her attorney were surprised by Michael's request "for nunc pro tunc entry of the judgment." Ginny asserts that Michael did not notify her prior to the hearing that he would be making this request. Ginny also argues, for the first time, that her attorney's lack of preparedness to address Michael's request for nunc pro tunc entry of judgment constitutes excusable neglect.
We reject Ginny's contention that Michael's request that the judgment be entered nunc pro tunc was a "new" argument of which she should have been apprised prior to the hearing. Michael sought to have the court enforce an agreement that the parties entered into in 2003. Inherent in such a request is the implication that the court would give effect to the agreement as of the date the parties entered into it, particularly since the agreement included language stating that it was to be effective upon execution, regardless of whether it was filed with the court. Ginny had been provided a copy of the MSA, and had initialed each page of the agreement and signed it. In signing the MSA, Ginny acknowledged that she "ha[d] read this Agreement and [was] fully aware of its contents and its legal effect." She was therefore aware of these provisions. Thus, the nunc pro tunc entry of judgment based upon the MSA could not have come as a surprise. Even if it did, it is not the kind of surprise for which section 473, subdivision (b) may provide relief.
At the very least, Ginny is presumed to know the contents of the agreement that she signed. (See Jefferson v. Department of Youth Authority (2002) 28 Cal.4th 299, 303 ["'"The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding."'"]
Ginny's attorney's response to the trial court's ruling does not amount to "excusable neglect" for which section 473, subdivision (b) relief is available. Ginny cites to Wiz Technology Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1 (Wiz Technology), in support of her argument that the judgment was entered as a result of excusable neglect. However, rather than providing support for her argument, Wiz Technology demonstrates the flaw in Ginny's position. In discussing the type of mistake to which section 473 properly applies, the Wiz Technology court explained:
"Section 473 cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence in opposition to a summary judgment motion. [Citation.] 'There is nothing in section 473 to suggest it "was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal."' [Citation.] Counsel's failure to understand the type of response required or to anticipate which arguments would be found persuasive does not warrant relief under section 473. [Citation.]" (Wiz Technology, supra, at p. 17.)
The Wiz Technology court went on to state that "[a]ny failure by Wiz's counsel to understand or appreciate the significance of the evidence [that the opposing party presented in its summary judgment papers] does not justify relief under Code of Civil Procedure section 473." (Wiz Technology, supra, 106 Cal.App.4th at p. 17.)
Ginny essentially argues that her attorney failed to appreciate the significance of Michael's motion to enforce the MSA, including the fact that it could be enforced as of the date on which it was executed, thereby rendering her motion for support arrears moot. Even if Ginny is correct as to her attorney's understanding of the implications of Michael's motion, an attorney's failure to appreciate that a motion to enforce a years-old settlement agreement might result in the court giving effect to the agreement as of the date it was executed would not justify relief under section 473, subdivision (b).
3. The court did not err in denying Ginny's request for a statement of decision
Ginny contends that the trial court ignored her request for a statement of decision with respect to her motion to set aside the judgment. Ginny suggests that the trial court's failure to provide a statement of decision leaves this court "with an inability to evaluate the trial court's ruling." Ginny concludes that this court should reverse the trial court's denial of her motion to set aside on the ground that the court refused her request for a statement of decision.
During the March 18, 2009 hearing on Ginny's motion to set aside the judgment, Ginny's attorney argued that the trial court's 2008 judgment, entered nunc pro tunc to 2003, constituted a retroactive modification of a support order. In making this argument, Ginny's attorney stated:
"In the best interpretation it existed as a private party extra judicial contract. It wasn't a Court order until December of 2008. At that point it became a judicial decision retroactively modifying the May 1st, 2000 order. It absolutely was a retroactive modification of support and as such is illegal under the Code. I would like to have a written statement of decision on that issue because it is pretty clear."
The trial court responded, "You can order the transcript for this motion. It will be the written statement of decision." The trial court then went on to state on the record the court's reasons for denying Ginny's motion to set aside the judgment.
On June 29, 2009, the trial court issued a document entitled, "Findings and Order After Hearing." In that order, the trial court states, "Petitioner's counsel's request for a written Statement of Decision is denied in part and granted in part. The court will not order a separate written Statement of Decision, but will grant that the written Findings and Order After Hearing will also serve as a written Statement of Decision."
We conclude that Ginny's argument with respect to the trial court's failure to issue a statement of decision is meritless. A trial court is not required to issue a statement of decision for an order made after a hearing on motions. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1497, citing Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 678 ["'The general rule is that a trial court need not issue a statement of decision after a ruling on a motion'"].)
Section 2127 of the Family Code appears to be an exception to this general rule, providing: "As to actions or motions filed under this chapter, if a timely request is made, the court shall render a statement of decision where the court has resolved controverted factual evidence." However, this section applies only to motions filed under that particular chapter of the Family Code, under which a court may set aside a judgment on certain grounds, including fraud, perjury, duress and mental incapacity. (See § 2122.) Ginny did not move to set aside the judgment pursuant to this chapter of the Family Code.
Ginny cites Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126 (Miramar), in support of her contention that the trial court should have provided her with a written statement of decision. However, Miramar involved a request for a formal statement of decision pursuant to section 632, which requires the trial court to issue a statement of decision when requested by a party after a "trial of a question of fact":
"In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision." (§ 632.)
In this case, Ginny did not request a statement of decision pursuant to section 632, nor was there a trial of fact on Ginny's motion to set aside the judgment under section 473, subdivision (b). Ginny has provided no other authority that would support her claim that she was entitled to a written statement of decision.
Further, the trial court provided Ginny and this court with sufficient analysis of the issues raised at the March 18 hearing to render Ginny's complaint meritless. Specifically, the trial court explained its ruling in detail, and addressed each of Ginny's arguments. Ginny has not identified a single issue on appeal for which the record is insufficient as a result of the manner in which the trial court handled her attorney's request for a statement of decision. We doubt that Ginny could do so, because the record provides ample basis for this court to evaluate Ginny's appellate claims. We therefore reject Ginny's claim that this court should reverse the trial court's order denying her motion to set aside the judgment on the ground that the trial court did not provide her with a written statement of decision.
IV.
DISPOSITION
The order of the trial court is affirmed.
WE CONCUR: NARES, Acting P. J., McDONALD, J.