Opinion
G055927
01-09-2020
In re Marriage of ALICIA MARIE and RYAL W. RICHARDS. ALICIA MARIE RICHARDS, Appellant, v. RYAL W. RICHARDS, Respondent.
Alicia Marie Richards, in pro. per., for Appellant. Law Offices of Kevin E. Robinson and Kevin E. Robinson for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15D009634) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Linda Lancet Miller, Judge. Affirmed. Alicia Marie Richards, in pro. per., for Appellant. Law Offices of Kevin E. Robinson and Kevin E. Robinson for Respondent.
In this marital dissolution action, Alicia Marie Richards (Wife) sought to set aside a stipulated judgment based on allegations of fraud and duress. The principle asset of the marriage was the family's Newport Beach residence, and Ryal W. Richards (Husband) agreed to give Wife three weeks to buy out his interest. When Wife was unable to make the pre-agreed upon payment, Husband listed the property for sale as required by the stipulated judgment. All did not proceed as planned. Wife initiated numerous legal proceedings to stop the sale.
We denied Wife's request to file an oversized opening brief with 20,331 words. She filed an opening brief containing 13,995 words, just slightly below the maximum allowed. It appears one reason Wife was able to comply with the word count rule was because she abbreviated numerous words. For example, family law court became FLC. Minute order was shortened to MO. The excessive use of abbreviations significantly reduced the readability of the argument. We caution Wife to minimize abbreviations and consider using a simplified name or nickname to gain clarity. For example, the motion to set aside the stipulated judgments could be shortened to "Motion" rather than MTSA.
This appeal (the first of seven) concerns only the trial court's decision to deny Wife's motion to set aside the judgment pursuant to Family Code section 2122. We also consider Husband's motion to dismiss the appeal on the grounds Wife accepted the benefits of the judgment, and therefore, waived the right to appeal. We conclude the appeal and the motion to dismiss lack merit. We affirm the postjudgment order.
All further statutory references are to the Family Code, unless otherwise indicated.
FACTS
I. Background Information
Husband and Wife married in 1994 and they still dispute their official date of separation. In 2016, they were each represented by counsel when Husband filed the petition for dissolution and Wife filed a response. During a custody dispute early in the proceedings, Husband stated he could not afford the cost of a child custody evaluation because Wife refused to work and he was struggling financially to pay for two households and four children (one in college and three minors). In March 2016, Husband sought physical custody of the children and asked the court to quickly schedule a trial on the issue of selling the residence "as it will help facilitate an early resolution of the divorce."
Approximately six months later, Husband filed a request for a hearing on selling the family residence immediately, distributing a portion of money to the parties, and holding the remainder in trust. He claimed the cost of maintaining the house and a separate residence was beyond his financial means. He asserted Wife refused to work. He estimated the home's equity was approximately $800,000, and because neither he, nor Wife, could afford to buy out the other, "the only real solution is to list and sell the house." Husband filed an ex parte application to shorten time for the hearing.
In a supporting declaration, Husband explained he was in "dire financial straights" and he was not earning enough commissions in his sales job. He was late paying the rent for his apartment and he suspected he would be asked to leave that residence. He was also in default on the first and second mortgages on the family residence. The banks sent him notices of default. Husband stated he borrowed $50,000 from his employer, who gave him an advance on his pay.
Husband noted the parties were disputing custody and had "postponed" making a decision on selling the house. Husband believed the home was worth over $1 million, but was encumbered by approximately $300,000 in loans. He was uncertain whether a lender would agree to let him refinance the home, and he claimed Wife did not make enough money with her eBay business to qualify for a loan.
In October 2016, Wife filed a memorandum asking the court to postpone ruling on whether or not to sell the house. In her declaration, Wife noted the court ordered Husband to pay the two mortgages as part of its May 12, 2016, spousal support order. She acknowledged receiving a notice of default from First Financial Credit Union (FFCU) holding the first mortgage on the property. She was aware Husband had not made payments to Schools First Credit Union (SFCU), the bank holding a second mortgage.
Wife declared she would like to purchase the family residence because she had lived in the home for 22 years and the children grew up there. She believed it was not in the family's best interests to relocate and change schools. Wife believed she could arrange to purchase the home if given additional time. She added there was no evidence to support Husband's claims to be financially destitute or that Wife refused to work. Wife asserted she "address[ed]" the default situation by borrowing money and paying FFCU, to cure the default on the first mortgage. She also made a partial payment to the SFCU to stop it from filing a notice of default. The court set the matter for a trial on March 2, 2017.
In February 2017, Wife filed an order to show cause (OSC) regarding contempt. She asserted Husband failed to make several payments ordered by the court in May 2016. She attached an "affidavit of facts" showing Husband failed to make the following payments: (1) two $1,692 mortgage payments to FFCU; (2) two $1,991 mortgage payments to FFCU; (3) seven $912.24 mortgage payments to SFCU; (4) $159.12 payment owed to DirectTV; (5) five different payments to "ATT Uverse;" and (6) ten $147 payments to Verizon.
To prepare for the hearing, Wife's counsel deposed Husband and on March 2, 2017, she lodged a transcript with the court. She also filed a trial brief listing the prior court orders in the case. The first order, dated February 11, 2016, gave the parties joint legal custody of the three minor children and delineated a visitation schedule. The second order, dated May 12, 2016, based on the parties' stipulation, provided Husband would pay $800 per month in spousal support, the first and second mortgages, and various household bills (electric, water, gas, cable, internet, telephone, etc.).
In her brief, Wife sought joint legal and physical custody, child support, and spousal support. She stated the family residence appraised for $1,250,000, but had only approximately $993,000 in equity due to the two mortgages. Wife wanted to buy out Husband's equity share with money from her father's trust fund. She added the family's debt of $72,779 must be divided.
In addition, Wife asserted Husband owed over $44,000 in arrears for spousal support and household expenses. Due to a disparity in income (Wife earning $1,000 per month, and Husband earning $10,000 per month), Wife requested Husband pay attorney fees of approximately $75,000. She noted her prior attorney and current counsel both had liens attached to the residence. II. The March 2, 2017, Stipulation
The parties appeared with counsel for the hearing on March 2, 2017. The court met with the parties in chambers and then trailed the matter to permit the attorneys to meet and confer with their clients. The parties entered into a handwritten stipulation and order for judgment. The first two pages concerned custody and the couple's timeshare agreement regarding the minor children. The third page stated the parties intended to subpoena the trustee controlling the trust funds Wife wished to use to buy out Husband's share of the family residence. The parties stipulated the trustee would be asked to discuss the amount of the distribution and when it could be made available to Wife. The stipulation added that if Wife could buy out Husband, she would also pay the first and second mortgage or remove Husband's name from the loans.
The last two pages of the stipulation discussed that the house would be sold if the trustee indicated there was insufficient funds to buy out Husband. The parties agreed to list the house by June 1, 2017, "to take advantage of the summer market." If the trustee stated there was sufficient money for the buy out, "the court shall determine the details of the process." They agreed to attend a status conference in March 2017, to resolve the parties' claims for reimbursements. Finally, the parties accepted the plan of using mediation to arrange a holiday schedule with the children. III. The June 16, 2017, Stipulation for Judgment
Represented by counsel, the parties appeared for trial and participated in a chambers conference. On the record, Husband recited the terms of a "global stipulation." The court declared a recess to permit the parties to memorialize in writing their stipulation. When they returned, the parties were sworn to testify and voir dired by their respective counsel about the stipulation.
Husband's counsel asked several questions about the status of the marriage and then asked if Husband recalled reading and signing every page of the 11-page document. He summarized the document as follows: "There's an [11]-page document that we have laborious[ly] gone through for the last four-and-a-half hours trying to deal with the house, credits, reimbursements, watts charges, 2640, tweaked the custody and visitation a little bit, did child support, spousal support, got rid of the contempt action pending, got rid of the department of child support services case and came to a resolution of that [Wife] either buys you out of the house for $450,000 or its sold forthwith." Husband stated he understood each page and wanted the court to adopt the document as the final judgment of dissolution.
Wife's counsel asked if Wife had read the 11-page proposed judgment "page by page, line by line, and with the assistance of counsel understand and agree to all the terms and conditions that are set forth therein." Wife replied, "Yes," and gave the same response when counsel asked if she wanted the court to enter the document as the final judgment.
The court asked both parties if they understood "it is a global settlement[] [t]hat means you each made compromises." Wife replied, "Yes."
The court made the following observation: "You could come out better. You could come out worse after trial. You could come out better, worse, or the same after you went to a special master on credits and reimbursements. You could come out better or worse with respect to spousal support and attorney fee orders but you decided to call it a global compromise. That means without an actual balance that we absolutely know, which is my job . . . , that each side gets basically the same amount on each side of the balance sheet but you've globally comprised it. [¶] Do you understand that[?]" Each party separately stated on the record, "Yes."
The court's minute order stated it entered the judgment of dissolution and the marriage would terminate "upon the filing of a formal judgment." The court accepted, signed, and filed the parties' hand written stipulation. It incorporated the stipulation by reference into the minute order. The court ordered Husband to prepare a final order.
The first page of the global stipulation outlined the parties' agreement regarding the family residence. Wife had three weeks (from the date of the order) to refinance or pay the following amounts: (1) $450,000 to Husband on or before July 7, 2017; (2) the first mortgage; and (3) the second mortgage. The stipulation clarified that if Wife did not refinance or pay the above sums by July 7th "the house shall be immediately listed for sale." In addition the stipulation specified, "The parties are ordered to sign the exclusive listing agreement" by July 8, 2017, with one of three pre-selected real estate agents listed in the judgment. Finally, the order stated that if either party failed to sign the listing agreement, the court clerk would be "ordered to sign with 24 hour notice." The parties agreed to cooperate by signing all documents necessary for sale of the residence. The order stated, "Time is of the essence. There shall be no delay in selling said residence." (Capitalization omitted.) The only exception was if Husband failed to sign any documents required by Wife to purchase or refinance the property. In such a case, the July 7th deadline would be extended until Husband signed the required documents.
The rest of the stipulation related to other issues. For example, the parties were ordered to bear their own attorney fees and costs. The parties waived their claims to credits and reimbursements. They agreed to divide community debt equally. The stipulation contained a detailed visitation schedule. The stipulation contained a Gavron warning and child support orders.
In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron).
IV. Motion to Set Aside the Stipulated Judgment
On September 13, 2017, Wife filed a motion to vacate or set aside the stipulated judgment. Wife specified her motion to set aside the June 16, 2017, judgment was based on section 2122 [procedure to set aside marital dissolution judgments]. She claimed the stipulation was the result of "[f]raud and [d]uress." In her supporting declaration, Wife maintained she had only agreed on issues regarding the family residence, child support, spousal support, and visitation. She asserted, "I did not know that this was intended to be a complete and final decision as to our entire divorce which included issues that were not discussed [in] the settlement agreement." She did not specify what issues were included in the judgment but were not discussed.
Wife next explained the reasons why she was unable to obtain a loan to buy out Husband. She stated Husband's failure to make mortgage payments had a negative effect on her credit. She was offered a 10 percent loan, but she felt it was "too risky." Wife explained this was the reason she initially agreed to put the house on the market and sign the listing agreement, but now she wanted to keep the house.
Wife also discussed an oral agreement she made with Husband in August 2017. Wife explained that her father disclaimed his inheritance and agreed to give her the money to save the family home. She said Husband agreed to remove the house from the market in exchange for $50,000 ("for waiting until the [t]rust money went through"), $400,000 of trust money, and an additional $100,000 when Wife was able to refinance the property. Wife claimed she also asked Husband to agree to complete "a loan modification" to "catch up" on the loan payments. Wife declared Husband agreed to these terms and he was breaching the contract and defrauding the court by filing a proposed judgment to sell the house.
Wife asserted Husband's counsel threatened her. She claimed to have told Husband's counsel she did not agree to items in the proposed judgment and she planned to file a motion to set it aside on the grounds she "was coerced into signing the stipulation judgment by coercion and fraud." Wife stated Husband's counsel filed the request for entry of judgment knowing she did not agree with it and planned to set is aside.
Wife maintained Husband concealed his failure to pay utility bills before she signed the stipulation. He had not paid the bills for three months despite the court's support order mandating payment. However, she did not assert the judgment would have looked materially different if she had known about the delinquent payments, or that the judgment would have been more favorable.
With respect to the issue of duress, Wife raised the following allegation: "[Husband] has manipulated this situation to his favor so that he can walk away with all of our marital estate and leave me with nothing. I feel that he has intentionally misled me to trust in him so that he can have it all. I also feel that I entered into this agreement under duress because I was not given adequate time to review all the debts, accounts, and consult an attorney to ensure the agreement represented my best interests. My prior attorney who I fired shortly thereafter kept telling me to sign the agreement so that he would not be ordered to accept payments for his fees. I told him that it wasn't fair that I had to pay all my attorney[] fees when [Husband] committed fraud by litigating a fraudulent third party claim with his mother against me. I was coerced into signing the agreement."
Wife stated she signed the stipulated judgment "through duress and pressure" because she badly wanted "to save my house for our children and the pressure of [Husband] and his attorney to put the house on the market." Wife asserted she believed she could pay off Husband without the help of her trust estate. She explained, "But because [Husband] failed to make the court ordered mortgage payments and support payments, trying to starve me and our 11-year old daughter out of the house, I signed the agreement."
She listed several other instances of perceived misconduct. For example, she noted Husband filed the final judgment although he knew Wife had fired her attorney. She believed he should have waited for her to find a new attorney. She claimed Husband failed to provide her with a list of debts and concealed his failure to pay household bills. She was unhappy the stipulated judgment contained information not discussed, such as the date of separation and a "Galvin Warning." Wife asked the court to set aside the stipulation and set the matter for trial.
We assume Wife is referring to a Gavron warning. (Gavron, supra, 203 Cal.App.3d 705.) The stipulated judgment contained the following advisement: "The [c]ourt hereby issues a Gavron Warning to [Wife]. [S]ection 4320 states that the goal of the State of California is that both parties shall become self-supporting within a reasonable time after a dissolution of marriage. [Wife] shall make reasonable efforts to obtain employment commensurate with her abilities to contribute toward her own support." A court has discretion to dispense with the warning if it determines the supported spouse in a lengthy marriage cannot reasonably be expected to earn enough money to become self-sufficient.
V. Amended Declaration for Motion to Set Aside the Stipulated Judgment
Three months later, Wife filed an amended declaration identifying the portions of the judgment she wished the court to set aside. Wife asserted she was seeking to set aside portions of both the May 2, 2017, stipulated order, and the June 16, 2017, stipulated judgment because "they were based on fraud, concealment, duress, mistake, and failure to comply with disclosure requirements and as a result created inequity." Essentially, Wife sought a redo of all the past support, child custody, and visitation orders. With respect to the family residence, Wife asserted there was a dispute as to how much equity she was entitled to receive. She discussed several instances of Husband's domestic violence, her own attorney's legal malpractice, her attorney's violations of the "professional code of ethics," and the reasons why she was unable to borrow money to buy out Husband and keep the house. In addition, Wife alleged Husband purposely put the house into foreclosure status to take advantage of her during the dissolution lawsuit, causing her "considerable duress and pressure." She claimed another part of Husband's "diabolical plan" was to ruin her eBay business. Wife also sought to set aside the provisions waving credits, reimbursements, and attorney fees. She asserted Husband should pay those fees.
On the issue of duress, Wife maintained she would not have signed the stipulation but for Husband's fraudulent actions of putting the property "into foreclosure status." She explained the threat of foreclosure "instilled fear and distress in me which caused me to sign the stipulated judgment." Wife argued the combination of Husband's refusal to pay support, his creation of the foreclosure threat, and schemes with his mother, created "steady pressure to the point of undue influence which exploited me to the point of overwhelming fear and duress which caused me to mistakenly sign the stipulated judgment."
Finally, Wife asserted Husband was a felon who had committed fraud in the past. She believed Husband concealed he had a second job and he was hiding money in his mother's bank account. Wife stated she intended to sue Husband for "torts in civil court by jury trial" and the family law court must wait until civil litigation was complete. She did not submit any evidence or discuss legal authority supporting this allegation.
Wife also submitted a memorandum of points and authorities discussing section 2122, and introducing for the first time additional grounds to set aside the judgment, i.e., Code of Civil Procedure section 473.
VI. Second Amended Declaration and Third Supplemental Response
On December 13, 2017, just a few days before the hearing scheduled for December 20, Wife filed a "supplemental declaration." Wife requested the court treat the declaration as evidence, however, the document was not signed under penalty of perjury. In this document, Wife reiterated the arguments previously raised. She added details relating to domestic violence, Husband's efforts to destroy her eBay business, and Husband's lack of parenting skills.
After the court continued the hearing to January 19, 2018, Wife filed a third supplemental response on January 16, 2018. She raised arguments pursuant to sections 2120, 2121, and 2122 and Code of Civil Procedure section 473. She repeated the same factual allegations regarding fraud and duress. She added arguments regarding Husband's failure to provide discovery and properly disclose his assets and liabilities as required by section 2107 and 2122. She alleged Husband breached his fiduciary duties and she intended to sue him. She asked the court to defer selling the family residence until the tort action was completely litigated and damages were "secured against" husband's equity in the family home. Wife also included a discussion of the children's best interests, arguing it would be unjust to enforce the stipulation.
VII. The Hearing & Ruling
The hearing was continued to the end of January 2018. The court indicated it read Wife's multiple filings, despite the fact some exceeded the page limit rules. The court told Wife one of her "declarations" was not submitted under penalty of perjury, and therefore, was considered argument. The court reminded Wife the judgment gave her additional time to purchase the family home, and if she was unable to come up with the money, the property would be sold. The court noted Wife's failure to undergo due diligence to determine if she would qualify for a loan was not Husband's fault. The court referred to evidence showing Wife was aware Husband was not making mortgage payments. It explained deferred home sale cases were rare and required extreme circumstances, such as severely disabled child who must stay in the house. It rejected Wife's request to defer the home sale until after she litigated her civil claims against Husband, especially since Wife admitted she had not filed the lawsuit yet.
Turning to the merits of the motion, the court asked if there was any other evidence Wife wanted to submit. The court indicated Wife had not yet established the alleged misconduct (fraud/duress) or a mistake materially affected the outcome as required by section 2122. The court explained Wife was extensively voir dired about the stipulated judgment, and Wife stated on the record that she understood the agreement and the consequences. "People compromise all the time. And just because you might later find out that it might have been inequitable is not in and of itself a ground to set it aside." The court asked Wife if she received her trust money. Wife replied it totaled $216,000.
After considering Wife's oral argument, the court denied the motion to set aside the stipulated judgment on several grounds. First, the court determined the motion was not properly served, but because Husband responded, that issue was moot.
Second, the court determined Wife's allegation of mistake under Code of Civil Procedure section 473 was inadequate. "[T]hat you knew that the mortgage payments were not paid and the other bills were not paid and at that you chose to waive all of those defects, waiving and giving up credits and reimbursements[,] and any reasonable person should have checked their ability to refinance[,] and the effect of any lack of payments would have on their inability to refinance. In addition, the whole argument here was you were getting money from your trust and therefore you would have that ability to purchase in any event."
Third, the court determined Wife's claim of duress was not supported by any evidence. "Your papers are vague about any acts caused by [Husband] that caused your free agency to be destroyed." The court acknowledged the allegations in the January 16, 2018, document were more detailed, but the pleading was not a declaration, and therefore, inadmissible evidence. It noted Wife's complaints about her own attorney cannot be attributed to Husband.
The court asked Wife about the material benefit of keeping the house. It noted Wife simply stated she did not want it to be sold. The court determined this reason did not establish a material benefit. "[T]here's no showing in any of your paper[s] that if we did anything different that you would get all that money from the house and not have to pay him anything."
The court found meritless Wife's claim to be "caught off[-]guard" and unaware the parties "were negotiating all matters." It reasoned the matter was set for trial and everyone was prepared for the proceedings before negotiations began. It noted the matter was continued to permit Wife to "get more information from the trust and to try to figure out if it was possible" to buy out Husband. The court ruled it was disingenuous for Wife to assert she did not intend the stipulated judgment to be a final decision as to the entire divorce. It added there was no evidence to support the claim of over $60,000 in support arrearages.
The court told Wife that if she determined spousal support was insufficient, or if there was a need to change custody/visitation, she may file a request to modify these orders. It ruled the need for modification was not a reason to set aside portions of the judgment. "The law does not allow the court to set aside a judgment just because somebody is unhappy" or now feels "something is inequitable." It reasoned Wife's unilateral mistake about how the delinquent mortgage payments would affect her credit cannot serve as grounds to set aside the judgment. It explained there was nothing raised in the various pleadings that would lead the court to conclude any portion of the stipulated judgment materially affected the outcome. Wife's possession of the home or receipt of one-half of the net sales proceeds of the home "does not equate to a material benefit or a loss." The court's minute order indicated that after denying Wife's motion to set aside the stipulated judgment, the court asked Husband to prepare a final judgment.
DISCUSSION
Unlike most civil judgments that may be set aside only within six months of entry and on the grounds specified in Code of Civil Procedure section 473, marital dissolution judgments may be set aside under sections 2121, 2122, and 2123 for a longer period of time and on a broader array of grounds. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143-1146.) Relevant to this case, section 2122 empowers a court to set aside a marital dissolution judgment if the moving party proves "[a]ctual fraud," a "mistake of law or mistake of fact," or duress. (§ 2122, subds. (a), (c), (e).) The court has authority to "relieve a spouse from a judgment" or any parts of the judgment "after the six-month time limit of [Code of Civil Procedure] section 473" as long as the court finds "that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief." (§ 2121, subd. (b).) (See In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 89-90 [moving party has burden of proof].)
Code of Civil Procedure section 473 and the Family Code statutory scheme (sections 2121 through 2123) "coexist, operating as alternative bases for relief, depending on when the application is filed." (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32 (Heggie).) "There is one interesting interaction between the two statutory schemes: [S]ection 2123 necessarily superimposes a per se rule on the trial court's discretion under [Code of Civil Procedure] section 473. Section 2123 is plain that where the only reason to set aside a judgment is that it was 'inequitable when made,' the trial court is affirmatively commanded not to set the judgment aside under 'any' law. Section 2123 reads: 'Notwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.' (Italics added.) Thus to whatever degree [Code of Civil Procedure] section 473 jurisprudence might have, prior to the enactment of the [Family Code statutory scheme], countenanced the setting aside of a family law judgment because it was somehow 'inequitable,' that discretion has now been expressly curtailed. [¶] Put another way, section 2123 represents a fixed legal principle that may not be substantively contravened by the trial court in considering a discretionary application for relief under section 473." (Heggie, supra, 99 Cal.App.4th at p. 33, fn. omitted.) Therefore, the court lacks authority to set aside a judgment simply because there is evidence one party benefits from a windfall, or "naked lopsidedness of the deal in hindsight" suddenly is revealed. (Id. at p. 36.)
In summary, the moving party has the burden of satisfying the following three factors: (1) facts establish one of the grounds for relief listed in section 2122 (fraud, duress, mistake, perjury etc.); (2) these facts "materially affected the original outcome" (§ 2121) in some way other than being inequitable (§ 2123); and (3) "the moving party would materially benefit" from setting aside the judgment (§ 2121).
"A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. [Citation.]" (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) We reverse a decision denying a motion to set aside only if there has been a clear abuse of discretion leading to an "injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.]" (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) Wife did not meet her burden of proof.
I. Fraud Allegations
The type of fraud described in section 2122, subdivision (a), includes extrinsic fraud, a traditional equitable basis for setting aside a judgment. (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 832-833 (Kuehn).) "Extrinsic fraud occurs where a party is deprived of the opportunity to present her claim or defense to the court, or in some manner fraudulently prevented from fully participating in the proceeding." (Ibid.)
Section 2122 also permits a judgment to be set aside due to intrinsic fraud because subdivisions (b), (e), and (f) provide perjury, mistakes of law or fact, and "failure to comply with the disclosure requirements" are additional grounds for relief. (See Kachig v. Boothe (1971) 22 Cal.App.3d 626, 634 ["in a litigated case the concealment or suppression of material evidence is held to constitute intrinsic fraud"]; Kuehn, supra, 85 Cal.App.4th at p. 833 [explaining traditional rule that distinguished extrinsic fraud from "intrinsic fraud, such as perjury, which was not a valid ground for relief"].)
Wife's discussion of fraudulent activity is lengthy. In addition to 68 pages in the opening brief, Wife created a six-page chart listing 72 different fraud allegations (in extremely small font text). Most of these allegations were asserted below in her motion, amended declarations, and supplemental responses.
To the extent Wife raised new issues of fraudulent activity in her appellate briefing, we cannot consider those allegations. Our review of the trial court's ruling under an abuse of discretion standard must be limited to the evidence considered by the trial court in Wife's motions and supplemental responses. This court cannot rewrite the motion to include new facts raised for the first time on appeal.
In a nutshell, Wife maintains she uncovered Husband's fraudulent scheme to destroy her livelihood, unfairly take away her home and assets, and leave her penniless. Wife's brief repetitively asserts Husband lied about his income, failed to disclose assets, violated court orders, and committed other misdeeds as part of a "diabolical plan" to take all the marital assets and the children.
However, the record suggests Wife was aware of most of Husband's purported scheming before she signed the global settlement, which became the stipulated judgment. In February 2017, one month before signing the stipulation, and four months before executing the global settlement, Wife filed an OSC regarding contempt based on allegations Husband failed to pay bills in violation of a prior support order. It cannot be said Wife was completely unaware of Husband's alleged misconduct. Wife's admission she borrowed money to pay the mortgages confirms she suspected Husband was letting the property fall into a foreclosure status to facilitate a quicker divorce.
If we assume, for the sake of argument, Wife established external or internal fraud (or even a mistake in fact), the trial court nevertheless lacked authority to set aside the judgment. As discussed earlier, the trial court must also determine "that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief." (§ 2121, subd. (b), italics added.) As discussed earlier, this requirement relates to section 2123's legal principal that a trial court cannot set aside a judgment solely because it appears to be unfair or inequitable to a party, either at the time it was entered, or due to subsequent circumstances. We agree with the trial court's determination Wife failed to present evidence to establish these requirements (§§ 2121 & 2123.) It was not enough to simply establish fraudulent conduct.
With respect to the family residence, the judgment contained the outcome Wife requested in her initial declaration. She wanted to delay selling the house. The judgment provided Wife with three weeks to arrange for and find money to buy out Husband. Wife wanted to purchase the family residence for a fair price. The judgment provided favorable buy out terms where Wife was paying Husband less than his community property share.
Wife declared the house appraised for $1,250,000, but due to encumbrances, had approximately $993,000 in equity. Husband's half, his community property share, would be $496,500. The judgment provided Wife would pay $450,000 (a $46,500 windfall for Wife).
When the court asked Wife if she had additional evidence regarding how she would materially benefit from setting aside the judgment and if there were grounds for a different outcome, she replied that she and her children would benefit from keeping the house and it should not be sold. This showing was not enough. Wife needed to prove Husband's alleged misconduct "materially affected the original outcome" of the stipulated judgment. In other words, Wife had the burden of establishing which terms of the stipulated judgment should have been different, as well as how those changes would result in a "material benefit" to her.
We find it very telling that Wife does not discuss the judgment's favorable terms of delaying the sale for three weeks. Rather, on appeal Wife simply argues the court should have postponed the sale until after other issues in the family law case were resolved and after she litigated a separate tort action against Husband. Although she does not articulate the point well in her briefing, we can reasonably infer Wife's position is that to maintain the status quo the stipulated judgment should omit all terms regarding the sale. Essentially, it is her contention that delaying the equitable division of the asset would have been the outcome but for Husband's misconduct.
This argument overlooks how the dispute started. At the end of 2016, Husband requested a hearing on selling the family residence immediately due to financial difficulties. Wife filed a declaration stating she wanted to purchase the home and she desired additional time to make the arrangements. If the parties had not reached an agreement, the court would have held a hearing to consider Husband's request and Wife's "counter memorandum." There was no possibility of a court order or judgment not addressing the division of this marital asset.
Wife argues that if Husband's fraudulent scheme had worked, he would have facilitated foreclosure proceedings and then repurchased the home from the bank at a bargain price. Wife essentially thwarted this plan by negotiating with Husband and agreeing to a global settlement/stipulated judgment giving her three weeks to purchase the property. The judgment's terms regarding the three-week postponement, as well as the agreed upon terms of sale in the event she was unable to purchase the property, both avoided foreclosure proceedings to Wife's benefit. Including terms that maintained the status quo or stopped the home's sale would likely have resulted in the two banks initiating foreclosure proceedings, which would not be to Wife's benefit.
Accordingly, due to the procedural history of this case, Wife could not have hoped for better terms regarding division of the family residence. She does not explain how an order maintaining the status quo would have been possible, or for that matter, been realistically in her favor.
Wife does not dispute the home was a community property asset subject to an equitable division. We can reasonably infer from the tone of her argument that Wife believes Husband's alleged misconduct during the marriage and after their separation warrants maintaining the status quo as a type of punishment. However, "Fault is simply not a relevant consideration in the legal process by which a marriage is dissolved. Recovery in no-fault dissolution proceedings 'is basically limited to half the community property and appropriate support and attorney fee orders—no hefty premiums for emotional angst.' [Citation.]" (Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, 474.)
We also reject Wife's assertion the trial court was required to postpone division of community assets until she completed her tort action against Husband. She provides no legal authority to support this contention. The argument was based on the faulty assumption Wife would prevail in the civil action, and the award could offset any money owed to Husband. However, a family law court need not stay the dissolution action and order Husband to continue paying for two residences while Wife's civil action percolates in a different courtroom.
II. Duress Allegations
We appreciate Wife experienced significant pressure and intense emotional duress when she was faced with the imminent threat of foreclosure of her beloved home. She explains how Husband's default on the loans, past incidents of domestic violence, the lack of financial options, poor credit, and bad advice from her attorney were all factors creating an extremely stressful situation and that led to her mistake of signing the global settlement. While we are sympathetic to these alleged circumstances, the type of duress she describes does not satisfy the legal definition of contractual duress, required to set aside the stipulated judgment.
Section 2122, subdivision (c), does not define the term duress. Generally, "'"[d]uress . . . includes whatever destroys one's free agency and constrains [him or her] to do what is against [his or her] will, and may be exercised by threats, importunity or any species of mental coercion . . . ."' [Citation.] It is shown where a party 'intentionally used threats or pressure to induce action or nonaction to the other party's detriment. . . . The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing. [Citation.]' [Citation.]" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1523 (Balcof).)
Although duress may be a tort or a crime, most authorities view the true test as contractual. (See In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 743-744 (Gonzalez).) "'"By many if not most of the modern authorities, however, the true doctrine of duress is held to be that a contract . . . obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress. . . ."'" (Ibid.) To justify setting aside a stipulated judgment, the party seeking relief must prove the duress so exercised control over her, that her will was absolutely subservient to the will of the offending party. (Id. at p. 744.) This test does not turn on the nature of the threats, but on the state of mind induced in the victim. (Ibid.) The court must take into consideration the attributes or characteristics of the party claiming duress, including her ability to resist. (Ibid.)
Accordingly, to prove contractual duress, Wife faced a very high hurdle of proof. "The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing. [Citation.]" (In re Marriage of Baltins (1989) 12 Cal.App.3d 66, 84 (Baltins).) It is not enough to demonstrate Husband intentionally threatened her by his actions or words to induce her to sign the agreement, and it is not enough to show this coercion induced fear. Wife must show the duress utterly destroyed her free will. "It is well settled that a contract . . . may be set aside for duress only if it was '"'obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property . . . as to deprive him of the free exercise of his will.'"' [Citations.]" (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 499 (Broderick).) Consequently, if the coerced party had mixed motives for agreeing to the contract, no duress will be found. (Ibid.)
For example, in the Broderick case, the wife, who had been the victim of past threats and domestic violence, conceded that she assigned a quitclaim deed to her husband because she wanted to leave him and needed the money. (Broderick, supra, 209 Cal.App.3d at p. 499.) She also agreed that when she signed the deed, her husband was not making threats or acting violent. (Ibid.) The court determined Wife had not proven duress.
Similarly, if time has passed between the alleged coercion and execution of a stipulated judgment, no duress will be found. In In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 685-686 (Rosevear), the court found no cognizable "duress" where the record showed that a complaining spouse's consent to a stipulated judgment was "freely, knowingly and voluntarily given," where she had three months to reflect on the agreement and obtain independent advice before signing the stipulated judgment, and had been thoroughly questioned by a settlement judge to ensure that she understood the agreement.
The passage of time rebuts the inference a party was deprived of the exercise of free agency, or lacked any reasonable alternative but to agree to what she later claimed was a coerced agreement. (See Rosevear, supra, 65 Cal.App.4th at p. 686 [fact that alleged violence took place months before settlement agreement was signed rebutted inference of duress].) Thus, if the coerced party had time to reflect on the terms of the stipulation and/or obtain legal advice, but nevertheless signs an agreement she later regrets, she is not a victim of duress. Rather, she is suffering from "'buyer's remorse.'" (Rosevear, supra, 65 Cal.App.4th at p. 686.)
In this case, it cannot be said the court abused its discretion in determining wife failed to present adequate evidence of contractual duress. Wife's description of the history of domestic violence was remote and Wife did not assert Husband threatened or pressured her when she signed the stipulation or when she executed the global settlement agreement several months later. At the time of execution, Wife was represented by counsel and was given time to investigate the availability of her father's trust fund money, obtain advice from others, and organize financing to buy out Husband's part of the home. Wife, with the assistance of counsel, negotiated a deal with Husband to buy out his share for the compromised sum of $450,000. As mentioned earlier, this sum appears to be less than Husband's anticipated community property share (half of $1,250,000 minus the outstanding mortgages).
Thus, Wife convinced Husband to postpone the sale and accept a lower pay out. While Husband created pressure to take immediate action to avoid foreclosure, the stressful situation did not preclude Wife from considering her options for two months or prevent her from negotiating favorable terms regarding the house. This was an insufficient showing Husband's conduct deprived Wife of the exercise of her free will or that she lacked any "reasonable alternative to succumbing." (Baltins, supra, 212 Cal.App.3d at p. 84; see also Balcof, supra, 141 Cal.App.4th at p. 1523.)
In Rosevear, a couple engaged in long-term negotiations throughout which the wife was intermittently represented by a series of attorneys. (Rosevear, supra, 65 Cal.App.4th at pp. 676-679.) The parties reached an oral agreement after a day-long settlement conference before a panel of three temporary judges. (Id. at p. 679.) That agreement was read into the record and, three months later, the wife executed the stipulated judgment. (Id. at pp. 679-680.) Six months later, represented by new counsel, the wife moved to set aside the stipulated judgment and settlement agreement claiming she had executed it under duress and due to mistake. (Id. at pp. 680-682.) The appellate court affirmed the trial court's ruling denying wife's motion to vacate. (Id. at pp. 686-687.) "The transcript of [the settlement judge's] voir dire at the settlement conference contains no hint of coercion or duress. To the contrary, [the judge] took extraordinary pains to ensure that [the wife's] agreement was freely, knowingly and voluntarily given. . . . [The wife] was clearly and expressly given sufficient opportunity to complain or object. If she had truly felt coerced or pressured to agree at the time of the settlement conference, surely some indication would appear in the reporter's transcript." (Id. at pp. 685-686.) The voir dire coupled with the fact that the wife waited three months after the settlement conference to execute the stipulated agreement "provide[d] strong evidence in support of the trial court's conclusion that [she] failed to establish . . . duress." (Id. at p. 686.) The court observed that when a contracting party has had ample time to reflect and obtain advice, this is likely to be evidence of garden variety "'buyer's remorse'" not duress. (Id. at p. 686.)
Similarly, in the case before us, Wife's voir dire does not suggest she executed the stipulation or the global settlement under duress. In addition to answering questions posed by her attorney about the agreement, the court sought clarification about whether Wife understood the global settlement was a significant compromise and she "could come out better" or worse if she went to trial. The court mentioned the settlement covered many topics the court usually evaluates and balances equally between the parties, including spousal support, credits, reimbursement, and attorney fees. The court asked each party if they understood the court did not balance these items because "you've globally compromised it." Wife responded, "Yes." When the court asked if either party had any questions, Wife simply asked, "Are we divorced? Are we free?" She also asked the court how long it would take for Husband's counsel to prepare the final judgment and wanted the court to impose a deadline. Such demands are not made by a person completely deprived of free will.
Finally, we conclude Wife failed to demonstrate Husband's purported threats or coercion destroyed her free will because she concedes other factors influenced her decision to sign the agreement. Specifically, Wife admits she signed the agreement because her attorney gave her bad advice. Mixed motives are insufficient to establish duress. (Broderick, supra, 209 Cal.App.3d at p. 499 [contracting party does not act under duress where he or she admittedly has multiple motives for entering into the agreement].)
III. Alleged Legal Malpractice
Wife's initial declaration asserted there was inadequate time to consult with an attorney and, at the same time, she met with an attorney who pressured her to sign the stipulation and global settlement. She suggested the court was required to set aside the judgment because her attorney, who negotiated the stipulated judgment, was negligent. We disagree. As explained in Rosevear, attorney negligence is not a distinct ground for setting aside a marital dissolution judgment: "[E]ven though attorney negligence will not be imputed to a client to bar an order setting aside a judgment, such an order may still only be granted if it is based on one of the five exclusive grounds specifically set forth in section 2122." (Rosevear, supra, 65 Cal.App.4th at p. 686.) "Attorney negligence is not itself one of these enumerated grounds for setting aside a judgment. The fact that attorney negligence is not a bar to setting aside a dissolution judgment does not transform it into a form of fraud, perjury, duress, mental incapacity, mistake, or other ground for setting aside a judgment." (Ibid.)
IV. Alleged Court Bias
In her briefing, Wife's mantra is that the court was obligated to address Husband's failure to comply with court orders. Wife believes an unbiased court would have imposed evidentiary sanctions after Husband refused to disclose documents, hid assets, and lied about his income. She is baffled as to why the court refused to impose sanctions or hold Husband in contempt. She speculates the court was biased against her because it believed Husband's claim she was a hoarder with psychological problems. While Wife acknowledges the court never made any factual findings regarding Wife's mental state, she asserts the only possible reason the court would have ignored her evidence of fraud and ruled against her was judicial bias against her.
"The operation of the due process clause in the realm of judicial impartiality . . . is primarily to protect the individual's right to a fair trial." (People v. Freeman (2010) 47 Cal.4th 993, 1000 (Freeman).) "The role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the challenging party] a fair, as opposed to a perfect, trial. [Citation.]' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 347.)
Wife forfeited any claim of judicial bias by failing to assert it below. (See People v. Farley (2009) 46 Cal.4th 1053, 1110; People v. Samuels (2005) 36 Cal.4th 96, 114.) Moreover, none of Wife's bias allegations relate to statements the court made on the record. Rather, Wife infers bias merely from the rulings made in Husband's favor. "'[A] trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review.' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 732.)
V. Other Due Process Concerns
A. Request for Attorney Fees
Wife maintains the court ignored her request for need-based attorney fees. Her supporting record references show her "request" was made on pages 29 and 32 of her December 2017 "supplemental declaration" in support of her motion to set aside the stipulated judgments of May and June 2017. On page 32, Wife stated she "petitions the court" for attorney fees and costs pursuant to section 2032.
Wife's briefing does not contain any legal analysis or legal citations to support her claim the trial court erred in failing to rule on her request for attorney fees that she buried deep within a supplemental declaration. (See In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 166 [party seeking attorney fees and costs under section 2030 must file and serve either form FL-319 or comparable declaration listing amount of fees and costs requested, attorney billing rates, notice to party, and personal declaration as to financial need].)
In addition to procedural and due process concerns with Wife's attorney fee request, it appears the court could have determined Wife abandoned the issue because she did not request a ruling during the hearing. Alternatively, the court could have recognized its obligation to uphold the stipulated judgment's attorney fee agreement. Because the trial court determined there were no valid grounds to set aside the stipulated judgment, the attorney fee provision was valid. It stated, "Each party shall their own attorney[] fees and costs and shall not be responsible for the attorney[] fees and costs of the other party." It also contained a prevailing party attorney fee provision. In other words, the court likely determined Wife waived her right to need-based attorney fees under section 2032 as part of the global settlement.
In a marital settlement agreement, parties to a dissolution proceeding or to an action relating to a dissolution judgment may contractually waive their rights to need-based attorney fee awards under sections 2030 and 2032. (See, e.g., In re Marriage of Guilardi (2011) 200 Cal.App.4th 770, 774-775.) Determining whether the parties intended to waive their statutory rights depends on their expressed intent in the stipulated judgment, requiring application of general rules of contract interpretation. (See generally In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 ["Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally"].)
Wife does not provide legal analysis or discussion regarding the issue of her contractual waiver of need-based attorney fees. Accordingly, we deem the attorney fee issue waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].) B. No Statement of Decision
Wife maintains the court ignored her two written requests for a statement of decision. As noted by Husband, the court provided an oral statement of decision on January 26, 2018, at the end of the hearing on Wife's motion to set aside the stipulated judgment. Nothing more was required. Under section 632, the court may give an oral statement of decision if the hearing was concluded within one day or less than eight hours. (See In Re Marriage of Katz (1991) 234 Cal.App.3d 1711, 1717.) C. No Continuance & Husband's Invocation of Fifth Amendment Rights
The following is a brief summary of the procedural history regarding these two related issues. Wife's initial motion to set aside the stipulated judgment showed the court scheduled the hearing for October 17, 2017. On that date, the court granted Wife's request for a continuance and scheduled the hearing for December 20, 2017. In November 2017, the court also continued Wife's OSC regarding contempt to December 20, 2017. Before the December 20 hearing date, Wife filed an amended declaration regarding the motion to set aside the judgment.
Meanwhile, on December 12, 2017, Husband filed an objection to Wife's request for a hearing on custody, visitation, and support. He explained Wife's OSC regarding contempt (scheduled for December 20, 2017) was a quasi-criminal action and Husband had a right not to incriminate himself by filing responses to Wife's request for a hearing on custody and support. He asserted a response would require him to provide an income and expense declaration, which would essentially waive his Fifth Amendment right against self-incrimination. Husband noted Wife filed a second OSC regarding contempt, which was scheduled for January 5, 2018.
On December 13, 2017, Wife filed her third supplemental response to her motion to set aside the judgment. On December 18, 2017, two days before the scheduled hearing, Wife filed a confusing document titled, "Further reply with alternative solution re: [Husband's] objections to hearing on the requests for orders regarding custody, support, visitation and any other proceeding other than a motion to set aside." (Capitalization omitted.) On appeal, she claims this document was a request for a continuance.
The document has only 11 lines. In the first sentence, Wife offers the court "a clean solution to the problem presented by [Husband]." She suggests that the court should hear her two OSCs regarding contempt before the motion to set aside and all other motions regarding support and attorney fees. She explained this plan "will allow all the motions to be heard without them being impeded by the issue of [Husband] taking the Fifth Amendment."
Wife does not explain why the court should have construed her further reply as a request for a continuance. Wife's solution of having the court consider the two OSCs before the motion to set aside the stipulated judgment did not necessarily require a continuance. All three motions could have been heard on the same date.
On December 20, 2017, the court continued the hearing on the motion to set aside the judgment to January 19, 2018. The two OSCs regarding contempt were continued to February 20, 2018.
On January 16, 2018, two days before the scheduled hearing, Wife filed her final supplemental response in support of the motion to set aside the judgment. On the scheduled hearing date, the court on its own motion continued the matter to January 26, 2018.
It appears Wife's final argument is that the court violated her right to due process by continuing the hearing date on its own motion. Wife asserts her final 27-page supplemental response, filed on January 16, 2018, informed the court she intended to call three witnesses. She asserts the court abused its discretion when it refused to grant her a continuance to present her witnesses or cross-examine Husband "who was taking the Fifth." The legal basis for this argument is unclear.
The caption of the supplemental response does not mention the need for three additional witnesses or for a hearing on a certain date. Wife does not provide a record reference to support her claim this information was contained in the 27-page supplemental response. Accordingly, we deem this issue waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Wife asserts she objected to the continuance, however, she refers to a written objection she filed on February 7, 2018, long after the hearing on her motion to set aside the judgment. In the objection, Wife claimed she called the court clerk and said her witness was unavailable on the new hearing date (January 26, 2018). She recalled the court clerk informed her to tell the court about her witness on January 26 and ask, "if they could be heard via telephone." Wife asserted the court denied this request, which was an abuse of due process.
The reporter's transcript indicates Wife told the court "I do have a witness that can testify to the intentional putting [sic] the mortgage into foreclosure status, and he was available last week and the hearing got continued. He is available on the phone." The court stated it was unwilling to hear the witness testify on the telephone. Wife replied "or we can do a short continuance" to a date the witness was available. The court indicated this was unnecessary because Wife's primary allegation did not relate to being unaware of the foreclosure status, but rather that she did not realize the late payments would be detrimental to her credit and ability to secure a loan. Wife agreed this was her main contention. As mentioned, the court ruled Wife's fraud allegations were insufficient to set aside the judgment because she also needed to establish how those facts materially affected the outcome and how she would have materially benefitted by the relief requested.
On appeal, Wife does not suggest why the court's refusal to allow additional evidence proving fraud prejudiced her case. She does not claim this witness would have contributed evidence to the determinative issue of how the outcome would have been different and materially beneficial. Moreover, based on our review of the record, it does not appear that Wife asked the court to rule on a continuance request. There is actually no order for us to review on appeal. D. Refusal to Bifurcate
Wife asserts her due process rights were violated when the court refused to "grant or deny" her request to "[b]ifurcate the real property issues pending the outcome of her torts [sic] against [Husband] in Case No. 30-2018-00986705-CU-FR-CJC." She elaborates that on December 18, 2017, she requested that the court "bifurcate the family home and order a deferred sale pending the division of assets, debts, offsets for back and present support and the outcome of the lawsuit against [Husband] based on his fraudulent scheme to obtain the family home through deceit and fraud during the divorce which created an unequal division of community property[.]"
Wife's supporting record references show her request for bifurcation was not raised in a separate motion. Rather, the request was listed as the fifth item on her December 13, 2017, "supplemental declaration in response to [the] motion to set aside stipulated judgments." (Capitalization omitted.) She wrote the following: "[Wife] is asking this [c]ourt to 'bifurcate' or divide the divorce into two parts. The divorce can be made final while the issues surrounding the disputed property division and division of debts and assets can be set for trial. Bifurcation is proffered so that [Wife] can present evidence based on [Husband's] actions, as set forth in her pleadings, will prove how [he] willfully, wantonly, and maliciously created a diabolical scheme and acted on said scheme to deprive [Wife] and her children of an equal division of the couples assets, namely the family home located [in] Newport Beach, California."
She asserts the family law court failed to exercise its discretion and rule on the merits of the bifurcation request. To support this allegation, Wife cites to pages 1457-1480 of the clerk's transcript. Within these 23 pages is the court's minute order, stating Husband must make several corrections to the proposed judgment based on its review of Wife's objections. Not surprisingly, this order, written seven days before Wife's bifurcation request, does not mention the issue of bifurcation. Wife's request was not before the court at that time. The rest of the cited pages contain the following documents: (1) Wife's reply to Husband's objections to having a hearing on orders relating to custody, support, and visitation; and (2) Wife's reply to Husband's objections to proofs of service. Neither of these documents prove the court failed to rule on the merits of Wife's bifurcation request.
We appreciate Wife orally requested bifurcation at the hearing on her motion to set aside the stipulated judgment. When the court asked her about the lawsuit, Wife admitted she had not yet filed a tort action against Husband. It is disingenuous for Wife on appeal to assert the court erred in refusing to consider a tort action filed after the court's ruling. The court need not consider speculative arguments.
Wife's argument lacks merit for the additional reason that her request to bifurcate family law issues was included in documents relating to her motion to set aside the stipulated judgment. The issues Wife wanted the court to bifurcate were resolved in the stipulated judgment. The court had no legal basis to bifurcate matters no longer pending.
For this same reason, we reject Wife's assertion the court abused its discretion by failing to consider her request for a deferred sale of the home. Sections 3801 and 3802 permit a court to defer the sale of a family home where certain conditions are met, relating to limited factual circumstances. However, in this case the court lacked jurisdiction to consider this particular issue because the fate of the family home was completely resolved by the stipulated judgment. The judgment provided Wife had three weeks to buy out Husband's share of the house, or the parties must cooperate to sell the property and divide the proceeds. After the court determined there were insufficient grounds to set aside the judgment, there was no legal basis to disturb the final judgment and revisit the issue of whether the house should be sold. "A stipulated judgment is as conclusive as to the matters in issue it determines as a judgment after trial. [Citation.]" (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1507.) The doctrine of res judicata bars further litigation regarding the fate of the family residence.
VI. Disentitlement Doctrine
Husband asserts Wife lacked standing to appeal from a judgment because she violated the trial court's order and judgment to cooperate with efforts to sell the house. This argument is somewhat paradoxical because in our record the only evidence suggesting a party violating court orders relates to Husband. The record shows two scheduled OSCs regarding contempt relating to his alleged failure to pay court-ordered utility bills, spousal support, and child support. Husband never denied that he violated the order requiring he pay two mortgages, which put the loans in default, damaged the couple's credit rating, and created a threat of foreclosure. Disentitlement is based on an equitable rationale, and we are mindful of the maxim that one who comes to court seeking equity must come with clean hands. (See Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1059.)
Husband cites authority holding the following: "'An appellate court has the inherent power, under the "disentitlement doctrine," to dismiss an appeal by a party that refuses to comply with a lower court order. [Citations.] As the Supreme Court observed . . . , "A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]" [¶] . . . [An] equitable rationale underl[ies] the doctrine. "'Dismissal is not "'a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court's inherent power to use its processes to induce compliance'" with a presumptively valid order.'"' [Citation.] 'No formal judgment of contempt is required; an appellate court "may dismiss an appeal where there has been willful disobedience or obstructive tactics. [Citation.]" [Citation.] The doctrine "is based upon fundamental equity and is not to be frustrated by technicalities." [Citation.]' [Citation.]" (Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, 1390-1391 (Blumberg).)
Our record does not contain any evidence Wife failed to comply with a lower court order before she filed this appeal. Indeed, Husband does not suggest Wife acted inappropriately before filing this appeal. We note that she has not violated any orders issued by this court.
Husband suggests evidence of more recent incidents of misconduct in the trial court warrant her dismissal. He filed a request asking this court to take judicial notice of a court order, dated November 9, 2018, which indicates Wife violated court orders. Without having the benefit of any supporting legal authority, Husband argues Wife should be dismissed from this appeal because "[t]hroughout this entire appellate proceeding, [Wife] has been in violation" of the trial court's orders to help sell the family residence and she "instead sought unsuccessfully to postpone any such sale." This argument runs contrary to Husband's case authority and the holding of Blumberg. The test is whether Wife sought assistance from the appellate court while standing "in an attitude of contempt." (Blumberg, supra, 233 Cal.App.4th at pp. 1390-1391.) When Wife filed this appeal, there was no evidence she had willfully disobeyed trial court orders. Husband's argument lacks merit, and we deny his request for judicial notice.
VII. Motion to Dismiss
Husband's motion to dismiss the appeal was made on the grounds Wife cannot appeal from a judgment because she benefitted from it. In summary, Husband asserts Wife cannot try to buy the property as permitted by the judgment and then later attack the validity of that same judgment. We disagree.
As a general rule, "one who accepts the benefits of a judgment cannot thereafter attack the judgment by appeal." (Lee v. Brown (1976) 18 Cal.3d 110, 114 (Lee).) The Supreme Court has repeatedly stated the rule as follows: "'The right to accept the fruits of a judgment, and the right of appeal therefrom are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is, therefor, a renunciation of the other.' [Citation.]" (Id. at p. 114.) In other words, the acceptance of a judgment's benefits "constitutes an '. . . affirmance of the validity of the judgment against him [or her].' [Citation.]" (Ibid.)
"This general rule has been applied in a number of contexts. (See, e.g., Schubert v. Reich (1950) 36 Cal.2d 298 [appellant accepted money pursuant to an order of the court that had explicitly conditioned the granting of plaintiff's motion for a new trial on the payment to defendant of that money, which order appellant then attempted to challenge]; Giometti v. Etienne (1936) 5 Cal.2d 411 [appellants paid the balance due on a contract of purchase, received a conveyance of property, encumbered that property, and filed a satisfaction of judgment]; Wilson v. Wilson (1958) 159 Cal.App.2d 330 [appellant accepted the benefits of a divorce decree and then sought to appeal the portion of the decree imposing obligations upon him] . . . .)" (Lee, supra, 18 Cal.3d at pp. 114-115.) "'Although the acceptance must be clear, unmistakable, and unconditional [citation], acceptance of even a part of the benefit of a judgment or order will ordinarily preclude an appeal from the portion remaining. [Citation.]' [Citation.]" (Satchmed Plaza Owners Assn. v. UWMC Hospital Corp. (2008) 167 Cal.App.4th 1034, 1041-1042 (Satchmed Plaza Owners).)
"'As is so often the case, however, application of the rule has generated a number of equitable exceptions.' [Citation.] For one, 'a waiver will be implied [only] where there is voluntary compliance with a judgment . . . .' [Citation.] 'Thus where compliance arises under compulsion of risk or forfeiture, a waiver will not be implied. [Citations.]' [Citation.] For another, 'one may appeal from a portion of a severable and independent judgment while accepting the benefits of the unaffected remainder of the judgment. [Citations.]' [Citation.]" (Satchmed Plaza Owners, supra, 167 Cal.App.4th at p. 1042.) Wife maintains both that she acted under compulsion in an attempt to purchase the family home and that portions of the judgment were severable, such as the inclusion of terms unrelated to the home and terms not previously discussed.
We reject Husband's argument for a different reason. Wife did not need the judgment to investigate lenders or seek financing. Ultimately, she was unable to find enough money to take advantage of the benefit offered to her by the judgment. A clear acceptance would have taken place if Wife purchased the home and then sought to set aside other portions of the judgment, such as the spousal/child support or the Gavron warning. Accordingly, we conclude Wife did not waive her right to appeal. We deny the motion to dismiss.
DISPOSITION
We affirm the postjudgment order. We deny the request for judicial notice and the motion to dismiss. In the interests of justice, each party shall bear their own costs on appeal.
O'LEARY, P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.