Opinion
G030962.
10-31-2003
NEAL F. ARCHER, Plaintiff and Appellant, v. GLORIA S. ARCHER, Defendant and Respondent.
Eric M. St. John for Plaintiff and Appellant. Law Offices of Robert B. Edmondson and Robert B. Edmondson for Defendant and Respondent.
OPINION
* * *
THE COURT:
We affirm a judgment dismissing a husbands civil cause of action against his former wife for fraud and breach of fiduciary duty based upon her alleged concealment of the value of community assets. Husband is limited to his remedies — if any — in family law.
Husband and wife were divorced in 1989 after nearly 30 years of marriage. The judgment disposed of husbands community interests in wifes retirement plans, but the court retained jurisdiction until wifes retirement benefits were distributed.
Twelve years later, in September 2001, husband sued wife for fraud, conversion and breach of fiduciary duty, alleging that she "withheld the true nature, extent and value of [these retirement accounts] in an attempt to reduce the value of [his] community property interest. . . ."
The court sustained wifes demurrer without leave to amend, stating, "[I]f you believe what youve alleged, you have to go back to family court and have that judgment set aside and have it relitigated, decide in fact that property was withheld or concealed. And, if it was, you have a remedy under the family court, not in the civil court."
The court got it right. This case is nothing more than the "artfully disguised" civil suit concerning family law matters that we decried in Neal v. Superior Court (2001) 90 Cal.App.4th 22. In Neal, we issued a writ of mandate to compel the dismissal of a fraud action brought by a man who alleged that his ex-wife lied during earlier family law proceedings involving child support payments. We held that the civil courts lacked jurisdiction to hear new actions that "are really nothing more than reruns of a family law case." (Id. at p. 25.) "Almost all events in family law litigation can be reframed as civil law actions if a litigant wants to be creative with various causes of action. It is therefore incumbent on courts to examine the substance of claims, not just their nominal headings." (Ibid.)
Sound policy reasons support Neals bright line rule. As we noted in Bidna v. Rosen (1993) 19 Cal.App.4th 27, 30, "reversal will open the sluice gates to the rivers of bitterness that often typify family law cases. [Citation.] Lawyers are notoriously clever at overstating their cases in their complaints . . . ."
Husbands opening brief ignored our decision in Neal. Wife pointed out the omission in her respondents brief. Husbands reaction? To say nothing. (He filed no reply brief.) We draw the obvious inferences.
Instead of discussing Neal, husband contends that Worton v. Worton (1991) 234 Cal.App.3d 1638 is "on all fours with the instant case in all pertinent respects." In Worton, the court permitted a wife to sue her former husband for fraudulently concealing excess assets in his pension plan. However, as husband himself concedes, Worton does not address the jurisdictional issue, and cannot constitute authority for it. (See dElia v. dElia (1997) 58 Cal.App.4th 415, 431 ["The Worton court never considered the legal propriety of a tort claim based on the concealment of a community asset, as distinct from a traditional set aside action based on extrinsic fraud."].)
Moreover, as subsequent cases have made clear, "there is no tort remedy for concealment of community assets in a dissolution proceeding. [An aggrieved spouses] remedy is limited to an action or motion to vacate the judgment." (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 834; see also Rubenstein v. Rubenstein (2000)
81 Cal.App.4th 1131, 1146-1147 ["The remedy under the statutory scheme [Fam. Code § 2122] is a traditional setting aside of the judgment . . . . Nonetheless, there is nothing in the statutory scheme to suggest that relief thereunder includes a remedy in tort."].)
Wife asks us to direct the trial court to award her attorney fees and costs. In Neal, we issued a writ to direct the lower court to dismiss the case and award attorney fees to the petitioner pursuant to Family Code section 2030, subdivision (a) "for having been dragged through this unnecessary excursion in the civil court." (Neal v. Superior Court, supra, 90 Cal.App. at p. 27.) But, unlike the petitioner in Neal, wife was successful below. She does not indicate whether she sought attorney fees from the trial court. Barring such a request, there is nothing for us to review.
The judgment is affirmed. Costs on appeal are awarded to respondent.