Opinion
B161774.
10-10-2003
DOROTHY OHAI, Plaintiff and Respondent, v. REYNOLDS OHAI, Defendant and Appellant.
Cheri A. Kadotani for Defendant and Appellant. Jeffrey W. Doeringer for Plaintiff and Respondent.
BACKGROUND
Appellant Reynolds Ohai appeals from an order granting in part his motion to set aside a stipulated judgment dividing marital property in the dissolution originally filed by respondent Dorothy Ohai. The motion was made on the ground that respondents failure to follow mandatory disclosure provisions of Family Code section 2100 et. seq., rendered the judgment void. In the alternative, the motion sought an order dividing undisclosed loans on property located on Second Street in Chino, and requiring respondent to pay appellant the value of their sons equity in property.
On July 23, 2002, the trial court granted the motion in part. A written order was entered on October 25, 2002, after further hearing. The court set aside the judgment and modified it, granting the alternative relief sought in the motion, ordering respondent to reimburse appellant for any mortgage payments made with regard to a property on Fourth Street in Chino, and to pay an additional sum on the Second Street property, on account of the sons interest.
A premature notice of appeal was filed from the courts minute order entered on July 23, 2002. The minute order states that the motion was granted in part, but the court orally stated that it would retain jurisdiction to determine the amount to be paid by respondent, and a hearing was scheduled for the parties to submit evidence on that issue. Respondents counsel offered to draft an order after that hearing, and did submit a proposed order, which the court signed and filed on October 25, 2002. We shall treat the notice of appeal, filed September 18, 2002, as taken from the subsequent order.
(See Cal. Rules of Court, rules 1, 2(d)(2).)
DISCUSSION
Appellant contends that because the parties failed to file any disclosure forms, as required by Family Code sections 2100, et seq., the trial court was required to vacate the judgment in its entirety. And he contends that the courts refusal to do so must be reversed without regard to the waivers filed by the parties, and in the absence of any showing of prejudice.
All statutory references are to the Family Code, unless otherwise indicated.
Both parties in a dissolution action must serve the other party with a preliminary and a final declaration of disclosure of assets. (Fam. Code, §§ 2104, 2105.) The preliminary declaration of disclosure may not be waived, and the final declaration of disclosure may be waived only if the preliminary disclosure has been previously served. (Fam. Code, § 2105, subd. (d).) Here, although the parties purported to waive the final declarations of disclosure when they entered into a stipulated judgment, and represented in the stipulation that they had exchanged preliminary disclosures, the trial court found that they had not, in fact, done so.
The disclosure requirements are not jurisdictional. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 336 ("McLaughlin").) Thus, "[a]lthough compliance with sections 2104 and 2105 is mandatory, failure to comply is not necessarily fatal." (Id. at p. 336.) In McLaughlin, we held that it is error to enter judgment where preliminary disclosures have not been exchanged, but that the judgment would not be reversed absent a showing of prejudice. (Id. at pp. 332, 336; see also, In re Marriage of Jones (1998) 60 Cal.App.4th 685, 694.)
At the time that McLaughlin was decided, the statutory scheme did not specify a consequence for such an erroneous entry of judgment. (McLaughlin, supra, 82 Cal.App.4th at p. 335.) Since then, the Legislature has amended section 2107. (See Stats. 2001, ch. 703 (A.B. 583).) It added subdivision (d), which states: "If a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error."
Thus, the Legislature did not abrogate our conclusion in McLaughlin that such a judgment is not void and that its entry is mere error, but did abrogate our holding that such an error is not reversible without a showing of prejudice. (See e.g., McLaughlin, supra, 82 Cal.App.4th at p. 336.) But the Legislature expressly made the amendment prospective. Section 8 of Stats. 2001, chapter 703 (A.B. 583), provides: "This act shall apply to any judgment that becomes final on or after January 1, 2002."
Appellant acknowledges that the judgment was entered in this case prior to January 1, 2002, but asks that we apply section 2107, subdivision (d), retrospectively. Appellant urges us to reconsider McLaughlin in light of the Legislatures reasons for enacting subdivision (d). He quotes excerpts from a Senate Judiciary Committee analysis, but does not ask that we take judicial notice of it and does not submit the entire analysis or any other materials.
Contemporary legislative committee analyses of legislation are subject to judicial notice in the discretion of the appellate court. (In re J.W. (2002) 29 Cal.4th 200, 211.) The party requesting judicial notice, however, must furnish the court with sufficient information to enable it to do so. (People v. Maxwell (1978) 78 Cal.App.3d 124, 130; Evid. Code § 452, subd. (c), § 459.) "A court is not required to seek out on its own initiative indisputable sources of information." (People v. Maxwell, supra, 78 Cal.App.3d at p. 130.) Since appellant has neither made a request, nor provided the entire analysis, we decline to take judicial notice of it.
In any event, the quoted material does not advocate a retroactive application of section 2107, subdivision (d), and since the Legislature clearly made the amendment prospective, there is no need for resort to the legislative history. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1120.) Further, since the Legislature expressly made the statute prospective, we may not make it retroactive. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1208; Cal. Const., art. 3, § 3.)
And we decline appellants request to revisit and overrule McLaughlins requirement of prejudice. To meet his burden to show prejudice, appellant must persuade us of the probability of a more favorable outcome. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) To do so, he is required to tender a developed prejudice argument, spelling out in his brief exactly how the error caused a miscarriage of justice, and referring to the evidence in the record that supports that argument. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.)
Appellant does not claim that there were undisclosed assets or misrepresented values, other than those that were the subject of the courts modification of the judgment. And appellant concedes that the court set aside and modified the judgment with regard to the matters that it found to be materially affected by the lack of disclosure.
Appellant contends, however, that the absence of the declarations of disclosure also materially affected his decision to enter into the stipulated judgment by causing him to be mistaken in his belief that he would be able to borrow against the "consultants fee" to be paid to him under the judgment, to borrow against property, and to work in the field of lighting design; and by causing him to be mistaken in his belief that the family corporation would dismiss a lawsuit against the parties daughter.
Appellant makes no attempt to show how the absence of disclosure declarations caused these mistaken beliefs, or even that they had any effect on them at all. The most that appellant asserts regarding the probability of a more favorable outcome is that had he not been mistaken, he would not have stipulated to the judgment. Since he has not tendered a proper prejudice argument, he has presented no ground for reversal of the trial courts refusal to vacate the erroneous entry of judgment. (McLaughlin, supra, 82 Cal.App.4th at p. 336; see Paterno v. State of California, supra, 74 Cal.App.4th at pp. 105-106.)
Appellant also contends that the trial court should have set aside the judgment on equitable grounds, as authorized by Family Code section 2125, because of respondents lack of disclosure and his mistaken beliefs, and because opposing counsel had added terms to the proposed judgment that had not been in the handwritten stipulation, and the court signed and entered that judgment even though appellant had refused to approve it.
Section 2125 provides: "When ruling on an action or motion to set aside a judgment, the court shall set aside only those provisions materially affected by the circumstances leading to the courts decision to grant relief. However, the court has discretion to set aside the entire judgment, if necessary, for equitable considerations."
Although a judgment may not be set aside solely because it was inequitable when made or subsequent circumstances has caused it to become inequitable, the court may set the judgment aside on grounds of fraud or mistake. (See Fam. Code, §§ 2122, 2123.) The trial courts refusal to set aside the judgment on grounds of fraud or mistake is reviewed on appeal for an abuse of discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
Appellant does not contend that the trial court abused its discretion in denying equitable relief from the judgment, but instead suggests that the court did not exercise its discretion at all. Indeed, as the trial court noted in its order of October 25, 2002, appellant did not move to set aside the judgment on equitable grounds. It is "inappropriate and futile for us to attempt to review for abuse a discretion the court was never requested to exercise and did not purport to exercise." (Agricultural Labor Relations Bd. v. Laflin & Laflin (1979) 89 Cal.App.3d 651, 666-667, fn. 16.)
Appellant asks, in the alternative, that this court strike the portions of the judgment that did not appear in the parties stipulation, on the grounds raised for the first time on appeal, that respondent did not bring a motion to enforce the stipulation and that the judgment was entered in violation of local court rules. We cannot give appellant relief for which he never applied to the trial court. (Dei Tos v. Dei Tos (1951) 105 Cal.App.2d 81, 83.)
Since we have determined that none of appellants contentions have merit, we need not reach respondents motion to dismiss the appeal, based upon her contention that appellant has voluntarily accepted benefits of the judgment he seeks to have set aside. (See generally, Schubert v. Reich (1950) 36 Cal.2d 298, 299-300.) We observe, however, that respondent has not met her burden to show that the accepted benefits are not severable, that appellant would not be entitled to them in the event of a reversal, or that the acceptance unmistakably shows acquiescence in the judgment. (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214.)
DISPOSITION
The judgment is affirmed. Respondent shall have her costs on appeal.
We concur: VOGEL (C.S.), P.J. and CURRY, J.