Opinion
D069489
01-04-2017
In re the Marriage of GUILLERMO CHRISTOPHER and MARIA VICTORIA ARTEAGA. GUILLERMO CHRISTOPHER ARTEAGA, Respondent, v. MARIA VICTORIA ARTEAGA, Appellant.
Moreno & Associates and William Baker for Appellant. Linda Cianciolo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DS48210) APPEAL from an order of the Superior Court of San Diego County, Albert T. Hartunian III, Judge. Affirmed. Moreno & Associates and William Baker for Appellant. Linda Cianciolo for Respondent.
Appellant Maria Victoria Arteaga appeals from an October 23, 2015 order denying her motion to set aside a Marriage Settlement Agreement (MSA), which was incorporated into a judgment dissolving her marriage to respondent Guillermo Christopher Arteaga. On appeal, Maria contends the family court abused its discretion because it based its decision on an error of law in that it did not apply the presumption of undue influence. She further contends that even if that presumption did not apply, the judgment should have been set aside for the parties' failure to meet disclosure requirements. Finally, she contends her entry into the MSA was a product of fraud and mistake. We affirm the order.
We refer to the parties by their first names for clarity and intend no disrespect.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts in the light most favorable to Guillermo, the prevailing party, accepting the court's express and implied findings and resolving all conflicts in his favor. (In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40; In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.)
Guillermo and Maria married in March 1993. They were married for approximately 17 years and 8 months before separating in December 2010. Citing irreconcilable differences, Guillermo filed a summons and petition for dissolution of marriage in May 2012. After at least three meetings with attorney and mediator Belinda Rachman, Guillermo and Maria signed the MSA. At some point before that time, Guillermo served Maria with his preliminary declaration of disclosure. The court filed its judgment incorporating the MSA in February 2013.
More than two years later, in March 2015, Maria moved to set aside the judgment. In an accompanying declaration, she claimed she never received Guillermo's preliminary declaration of disclosure; that Guillermo did not disclose his assets, evaluate their family business or explain its value to her, or give her proof of its value. She asserted Guillermo was represented by Rachman but Maria was self-represented. Maria stated she is a Spanish speaker who is not educated and barely understands English, but nobody read or explained the MSA to her, she was not told she could consult her own attorney, and she was rushed into everything. According to Maria, Guillermo told her everything was correct and she needed to sign the MSA. Rachman did not translate the MSA into Spanish, and Rachman told her she needed to sign the MSA on the day Rachman gave it to her. Maria felt Guillermo took advantage of her education level and made her sign something he knew she did not understand.
Guillermo opposed Maria's request in part on grounds the time period to set aside the judgment had lapsed. He stated he and Maria used Rachman as a mediator to help them through the process, met with her three times, and entered into the final MSA after many months of negotiations, in which Maria actively participated. According to Guillermo, at the beginning of the mediation process, Maria was asked if she needed someone to translate for her; she responded that she did not and all the settlement negotiations were conducted in English, since Maria had made it clear she understood what was being said. Nor was Maria prevented from retaining an attorney during the entire process. Guillermo stated that as to the community interest in their business, Pacific Auto Service, Maria was well aware they held only a 55 percent interest in the business and that the remaining 45 percent was owned by another husband and wife. Guillermo stated the business valuation was conducted by First Choice Business Brokers. Maria's equalizing payment was determined after the parties took into account offsets and reimbursements, and Guillermo was awarded all of the business debts. Guillermo pointed out that Maria had received the monthly equalization benefits for over two years after signing the MSA and entry of the judgment. He stated he had served Maria with his preliminary declaration of disclosure before they entered into the MSA.
Maria filed a supplemental declaration in July 2015. She denied Guillermo's statements, and stated she entered into the MSA before receiving proper service of the petition for dissolution or declarations of disclosure. She stated she never responded to the petition and only discovered the business evaluation was incorrect or "fraudulent[]" about a year after signing the MSA.
Following arguments on the matter, the family court denied Maria's request to set aside the judgment. In part, it ruled Maria's request was not timely filed under Code of Civil Procedure section 473, subdivision (b) because it was not filed within six months of the judgment incorporating the MSA, and it was also untimely under Family Code section 2122. It found Maria "presented no credible evidence that would justify the extent of her delay in filing her request." The family court further found the "circumstances surrounding the creation of the MSA contradict [Maria's] claims. The use of a mediator, multiple meetings, terms that include her receiving indefinite spousal support and child support, her receipt of a substantial equalization payment, and notarization of her signature, all undercut her claim that she was forced to sign a one-sided agreement." Finally, the court ruled Maria's claim of alleged lack of service of Guillermo's preliminary declaration was barred by Family Code section 2122, subdivision (f); the deadline was not tolled by her delay in seeking legal counsel as she was aware of her language and educational limitations when she signed a clear legal document; and hindsight about the wisdom of signing the MSA was not evidence of fraud.
DISCUSSION
I. Request to Strike Brief or Dismiss Appeal
We begin with Guillermo's contention that we should strike Maria's opening brief or dismiss the appeal because Maria did not provide citations to the appellate record in the argument section of her brief. He is correct that it was incumbent on Maria to cite the volume and page number of the record supporting every assertion made in her brief wherever they appear. (Cal. Rules of Court, rule 8.204(a)(1)(C); Lee v. Rich (2016) 6 Cal.App.5th 270, 273; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 989-990; Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) Under California Rules of Court, rule 8.204(e)(2), this court has discretion to either order the brief returned for corrections and refiling, strike the brief with leave to file a new brief, or disregard the noncompliance. Guillermo does not cite authority permitting this court to dismiss the appeal based on these rule violations, and outright dismissal is not authorized by this rule. We decline to dismiss the appeal.
Maria provided record citations in her statement of facts, and we do not consider her other violations substantial enough to merit striking her defective brief. (Accord, Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 990.) We exercise our discretion to disregard Maria's noncompliance with the rules of court in part, that is, we will consider the challenged portions regardless of their deficiency to the extent the record supports the referenced factual statements. (See Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 343 [noting court's discretion to disregard party's technical noncompliance under former California Rules of Court, rule 14(e)(2)(C)].) If there is no record support for Maria's factual references, we will not consider them and deem waived any argument based on unsupported references. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 502-503; Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, 1213, fn. 12.)
II. Maria Has Not Shown the Family Court Prejudicially Erred In Denying Her Motion
to Set Aside the Judgment
A. Legal Principles and Standard of Review
It is not clear on what ground Maria brought her motion to set aside the February 2013 judgment. However, the parties agree that this court reviews the family court's decision for abuse of discretion, and indeed that is the proper review standard whether Maria brought the motion under either Code of Civil Procedure section 473 or Family Code section 2121. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138 [Family Code section 2121]; In re Marriage of Georgiou and Leslie (2013) 218 Cal.App.4th 561, 570 [motion under Code of Civil Procedure section 473]; see In re Marriage of Thorne and Raccina (2012) 203 Cal.App.4th 492, 499, fn. 3 [describing background of alternative motions].) In assessing an exercise of discretion for abuse, we consider whether or not the family court exceeded the bounds of reason, all of the circumstances before it being considered. (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230.) "When two or more inferences can reasonably be deduced from the facts, we will not substitute our deductions for those of the trial court. [Citation.] The burden is on the complaining party to establish abuse of discretion. [Citation.] The showing on appeal is insufficient if it presents a state of facts that affords only an opportunity for a difference of opinion." (Id. at pp. 229-230.) To the extent the family court made factual findings in ruling on Maria's motion, we review its findings for substantial evidence. (Donovan v. Poway Unified School District (2008) 167 Cal.App.4th 567, 581-582.) "If the record demonstrates substantial evidence in support of the judgment, we must affirm even if there is substantial contrary evidence." (Id. at p. 582.) B. Timeliness of Motion
As a separate ground for declining to set aside the judgment, the trial court ruled that Maria's motion was untimely due to her nearly two-year delay in filing it. Maria maintains her motion was timely because it was filed within one year of her learning in October 2014 about the defect in the declaration of disclosure requirements. But the contention is buried in a section of her brief pertaining to those disclosure obligations. Because Maria does not address this aspect of the family court's ruling under a separate heading as required by California Rules of Court, rule 8.204(a)(1)(B) [arguments must be placed under a separate heading or subheading summarizing the point], we may decline to consider it as forfeited. (Silverado Modjeska Recreation and Parks Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 314, fn. 24; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 542.) Thus, we may affirm the family court's order and the judgment solely on grounds of Maria's untimeliness in seeking relief. C. Presumption of Undue Influence
Maria contends the family court made an error of law when it ruled on her motion without applying to the MSA the statutory presumption of undue influence of Family Code section 721, subdivision (b). She maintains that as a result, the court abused its discretion and we should remand the matter for the family court to apply the presumption. The contention is unavailing for several reasons.
Family Code section 721, subdivision (b) provides that transactions between spouses " 'are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.' In view of this fiduciary relationship, '[w]hen an interspousal transaction advantages one spouse, "[t]he law, from considerations of public policy, presumes such transactions to have been induced by undue influence." ' [Citation.] 'Generally, a fiduciary obtains an advantage if his position is improved, he obtains a favorable opportunity, or he otherwise gains, benefits, or profits.' [Citation.] The spouse advantaged by the transaction has the burden of dispelling the presumption of undue influence. [Citation.] The presumption can be dispelled by evidence that the disadvantaged spouse entered into the transaction 'freely and voluntarily . . . with a full knowledge of all the facts and with a complete understanding of the effect of the [transaction].' " (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 84 (Kieturakis).) "Thus, ' "[i]f one spouse secures an advantage from the transaction, a statutory presumption arises under [Family Code] section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside." ' " (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1353; see also In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 628-629.)
Maria raises the contention for the first time on appeal, and it is therefore forfeited. (See In re Marriage of Holtemann (2008) 166 Cal.App.4th 1166, 1174; Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.) Additionally, it would be unfair to Guillermo to raise the new theory at this time. "A party is not permitted to change his [or her] position and adopt a new and different theory on appeal. To permit him [or her] to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 110-111.)
Further, the contention fails in view of the family court's express factual findings. In ruling on the motion, the family court found that Guillermo and Maria had "use[d] a mediator" in creating the MSA. We uphold the finding that the parties had mediated their disputes if it is supported by substantial evidence (Donovan v. Poway Unified School Dist., supra, 167 Cal.App.4th at pp. 581-582) and here, it is supported by Guillermo's multiple sworn statements in the record, which the family court accepted. Its factual finding disposes of Maria's contention. Courts decline to apply the presumption of undue influence to mediated marital settlements. (In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 902-903; see also Kieturakis, supra, 138 Cal.App.4th 56, 86.) In Kieturakis, the court pointed out that " '[d]ivorce mediators generally work to balance the negotiating power between the parties' " which " 'tends to produce agreements that are more fair and voluntary, rather than coerced.' " (Kieturakis, at p. 85.) But it observed that, "more importantly, to apply the presumption of undue influence to mediated marital settlements would severely undermine the practice of mediating such agreements. Application of the presumption would turn the shield of mediation confidentiality into a sword by which any unequal agreement could be invalidated. We do not believe that the Legislature could have intended that result when it provided for spousal fiduciary duties on the one hand and for mediation confidentiality on the other." (Ibid.; see also Woolsey, 220 Cal.App.4th at p. 902.) Further, to apply the undue influence presumption would cause all unequal mediated agreements to be conclusively presumed to be invalid. (Kieturakis, 138 Cal.App.4th at p. 86.) If the undue influence presumption attached to a mediated marital settlement agreement "the disadvantaged party could claim, for example, to have acted under duress, refuse to waive the [mediation confidentiality] privilege, and thereby prevent the other party from introducing the evidence required to carry the burden of proving that no duress occurred." (Ibid.) We agree with the rationale of Kieturakis, and that "a presumption of undue influence undermines the strong public policy in favor of mediation." (Woolsey, at p. 903.)
Because we will not apply the presumption of undue influence to the MSA here, which was reached as a result of mediation, Maria's claim of error fails. D. Claim of Failure to Comply with Declaration of Disclosure Requirements
Maria argues that even if the presumption of undue influence does not apply, the judgment should be set aside because the parties failed to comply with disclosure requirements, permitting the family court to set aside the judgment under Family Code section 2122, subdivision (f). She maintains the record contains no evidence of compliance with the requirements, and Guillermo never produced a copy of the declarations, suggesting they do not exist.
Family Code section 2122, subdivision (f) provides: "An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply." --------
Maria's contention is contradicted by the record. Guillermo in his opposing sworn statement stated that the parties exchanged their respective declarations of disclosure, and the record contains both Guillermo's and Maria's Judicial Council form FL-141, in which they declared under penalty of perjury that they had personally served their final declarations of disclosure on each other. The family court implicitly found the parties met their disclosure obligations, which finding is supported by substantial evidence.
Maria maintains on appeal that the forms "are not credible and should be rejected." But the matter of the parties' disclosure was subject to dispute, and "[w]e may not insert ourselves as the trier of fact and reweigh the evidence." (Burch v. Premier Homes, LLC (2011) 199 Cal.App.4th 730, 744.) Credibility is a matter exclusively for the family court. (See People v. Snow (2003) 30 Cal.4th 43, 66 [under the substantial evidence standard, credibility determinations are the sole province of the fact finder]; In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175 ["We do not judge credibility on appeal"]; see also In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 979; In re Marriage of Everett (1990) 220 Cal.App.3d 846, 861 ["on appeal we must respect the judge's credibility calls"].)
Notably, the family court also expressly ruled that Maria's claim on this ground was untimely because she failed to make her motion within one year from the date she should have discovered Guillermo's failure to comply with the disclosure requirements. We need not address that aspect of the court's ruling because under the circumstances, Maria has not met her appellate burden to demonstrate the court erred by denying her motion on grounds the parties had indeed met their disclosure obligations. E. Claim of Fraud and Mistake
Maria finally contends that the MSA was a product of fraud and mistake. She argues she was induced to enter into the MSA by Guillermo's representations about its fairness and the business's valuation, and she relied on him but was mistaken in accepting his facts.
All of Maria's arguments consist of rehashing underlying facts in her favor, disregarding Guillermo's evidence and the trial court's findings and credibility determinations adverse to her. Resolving her contentions involves consideration of inherently factual matters that we review for substantial evidence, and under this standard of review, she has forfeited the contentions by failing to summarize all of the material evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Sterling v. Sterling (2015) 242 Cal.App.4th 185, 195.)
In any event, Maria's motion was untimely to the extent it was based on an asserted mistake. A motion to set aside based on mistake must be brought "within one year after the date of entry of judgment." (Fam. Code, § 2122, subd. (e).) Maria brought her motion just over two years after entry of the judgment. She has shown no error in, much less addressed, the family court's ruling on this basis.
Nor has Maria demonstrated the court prejudicially erred in denying her motion to the extent it was brought on the ground of actual fraud. (In re Marriage of Georgiou and Leslie, supra, 218 Cal.App.4th at p. 571 [Family Code section 2122 sets forth six grounds to set aside a judgment or portion thereof, including actual fraud and failure to fully disclose the value of assets under section 2100 et seq.].) A motion to set aside judgment based on fraud must be brought within one year after the moving party did discover or should have discovered the fraud, and the moving party must demonstrate she "was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding." (Fam. Code, § 2122, subd. (a).) The court may grant relief only if the fraud "materially affected the original outcome and . . . the moving party would materially benefit from the granting of the relief." (Fam. Code, § 2121, subd. (b).)
Again, we affirm the family court's order on grounds of untimeliness alone. The court found that despite any difficulties Maria may have understanding English or the agreement she signed, she was aware she was signing a binding legal document, thus triggering the one-year limitations period, which expired well before Maria filed her motion. Maria does not address or refute that finding.
Further, Maria's mere recitation of the evidence in her favor does not demonstrate that she can meet the relevant standard for actual fraud. The family court found Maria was aware of her limited English-speaking ability when she signed the MSA, and determined that "[her] [h]indsight about the wisdom of signing the MSA [was] not evidence of fraud." Maria does not challenge that finding. Additionally, Guillermo averred that Maria participated in the mediation proceedings leading up to the MSA. Thus, substantial evidence supports the family court's implied finding that Maria, in part by participating in mediation and multiple meetings, was not "kept in ignorance or in some other manner . . . fraudulently prevented from fully participating in the proceeding" that led to the MSA. (Fam. Code, § 2122, subd. (a).) Guillermo's evidence, and the judgment itself, reflects that Maria was able to understand English and agreed to the business valuation. Maria has not demonstrated that the business had some value different than what the parties' MSA reflects, or that she was ignorant of any other matter that would materially affect the outcome and justify setting aside the judgment.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. BENKE, J.