Opinion
A128597
02-16-2012
In re the Marriage of DEBORA LEE ENT and GREGORY ENT. DEBORA LEE ENT, Appellant, v. GREGORY ENT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. MSD06-05634)
INTRODUCTION
Debora Ent appeals from an order of the Contra Costa County Superior Court denying her motion to set aside a written stipulation and order for judgment dissolving her marriage to Gregory Ent on grounds of mistake and the failure of Gregory to comply with his disclosure requirements. (Fam. Code, § 2120 et. seq.) She contends reversal is required because: (1) the court rejected her timely request for a statement of decision (§ 2127), erroneously determining that no factual findings were required; (2) the judgment did not incorporate a stipulation for judgment, a settlement agreement or other written agreement and no voir dire was conducted as to her understanding of the agreement; (3) the goals of providing for equal division of property and fair and sufficient spousal support were frustrated by her mistakes as to (a) the value of the community property businesses, (b) the implications of her taking a $100,000 lump sum distribution of spousal support, (c) her employment prospects; (d) the implications of agreeing to Epstein waivers, (e) the failure to include the cash value of a life insurance policy as a community asset in the agreement, and (f) her understanding of the court's comments regarding unresolved issues. She also contends reversal is required because: (4) Gregory breached his fiduciary duties to her by failing to fully disclose his assets and by serving a perjured schedule of assets and (5) she entered the agreement under duress. We shall affirm.
All statutory references are to the Family Code unless otherwise indicated.
In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85 (Epstein), recognizes that a spouse who uses earnings or other separate funds to pay preexisting community obligations after separation of the parties should be reimbursed out of the community property upon dissolution.
BACKGROUND
The parties were married in 1983 and separated in November 2006. They have four children. Since their separation, the parties have fought vigorously over custody, support and property distribution.
Settlement conference and stipulated judgment. The parties filed settlement conference statements and exchanged income and expense declarations in advance of a June 2, 2009 settlement conference. The conference was not reported. Both parties were represented by counsel at the conference. The minutes state that "an in chambers conference was held. The parties were able to settle this matter and will be reducing it to writing and submitting to the dep[artment]." On June 3, 2009, the court kept the settlement conference on calendar at Debora's counsel's request. That hearing was not reported. That same day, a "Stipulation and Order" for a "permanent order" was signed by the parties and the court. It recited that the parties have joint legal and physical custody over their three minor children and it set a visitation schedule of alternate weeks per an existing order. It also provided: "petitioner [Debora] to have until Sept. 5, 2009 to buy out husband's interest in family residence. If not done, then residence is to be listed for sale with mutually agreed broker, sanction motion to be dropped, discovery motion to be dropped and contempt motion to be dropped. Petitioner to cancel DCSS involvement." A single sheet headed, "Present offer by Greg" that was initialed by the parties and their attorneys was included in the "Stipulation and Order." It provided in its entirety:
"Present offer by Greg
"1. Sell House.
"2. Pay first loan from house proceeds.
"3. Divide proceeds equally.
"4. Debbie pays from her proceeds:
"a. FLARPL attorney fees from her proceeds."5. Greg pays Debbie from his proceeds:
"b. all past due taxes on house approx $15,000 (three installments).
"c. $27,500.00 to Equity Line
"a. $200,000.00 for business."6. Greg pays Debbie $100,000.00 lump sum spousal support at time house escrow closes. He must pay it even if sale proceeds are insufficient.
"b. 75,000.00 for attorney fee contribution
"c. 27,500.00 to Equity Line
"d. 40,000.00 for past due support through June 30, 2009.
$342,500.00
"7. Child support paid by Greg.
"a. July 1, 2009 to January 1, 2010 = $2,730.00 per month."7. Greg will provide health insurance for children. Uninsured health costs equally divided.
"b. January 1, 2010 to June 30, 2010 (or date of HS Graduation for Michelle = $1,714.00 per month.
"c. June 30, 2010 (or Michele's emancipation) to date of twins emancipation. $1,427.00
"d. No motion for modification until Michele's support stops, then guideline support, no showing of change circumstances needed.
"8. All reimbursement, Watts and Epstein claims waived.
"9. Each keeps property in own possession."
At a June 5, 2009 hearing, the court acknowledged that the parties had stipulated to drop three pending motions (including Debora's motion for sanctions against Gregory and her motion to compel discovery) and to vacate the trial date. The court stated that the only reason for the hearing was to take jurisdictional facts on the dissolution. The court also stated that the judgment had not yet been signed, but that Gregory's attorney was trying to get the final wording done to conform with the order that had been filed and entered previously, setting forth what the agreement was. The court ordered the parties back at 2:30 p.m. to take the jurisdictional facts, do the divorce, and "flesh out" the terms that are already in the order, stating, "The terms are all there already in that order, but this will flesh them out and anything that you forgot, you know, the tea pot that you want or something." When the parties returned in the afternoon, the court stated its understanding that "there were some issues remaining that you weren't able to resolve, but that you do—we will go ahead and go forward with taking jurisdictional facts. We'll do the divorce as of today . . . ." The court set a case management conference for September 18, 2009, so that "[i]f there are any issues that need to be resolved that weren't part of this judgment, put it in your case management questionnaire what they are or attach something to that, so that I know what I'm dealing with. I'm hoping that you resolve them, then you don't have to be back. But if you don't, we'll set you for a trial on those remaining issues." The court then took the jurisdictional facts regarding the marriage, relieved the minors' counsel, and ordered each party to pay one-half her fees.
The judgment of dissolution was signed by the court on June 5, 2009, and filed on June 10, 2009. The "Stipulation and Order," including the one-page agreement initialed by the parties, was attached. The judgment recited, among other things: "This judgment contains provisions for child support or family support." "A written stipulation for judgment between the parties is attached." "Child custody and visitation are ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement." "Child support is ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement." "Spousal or partner support is ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement." "Property division is ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement." The order also stated, "All previous orders are super[s]eded by the terms of this stipulated Judgment."
The parties agreed at the June 5, 2009 hearing that final financial disclosures had been prepared and exchanged by the parties, but had not been filed with the court. Each party waived the filing of the declaration of service of the final disclosure. Gregory's counsel stated that pursuant to the judgment and attached orders, Gregory was to pay to Debora the sum of $40,000 [for past due support through June 30, 2009] and counsel gave Debora's attorney a check for that amount. The court observed, "everything's pretty much done. It sounds like what might be left are some personal property things, some of the minor things. I'm hoping that in the interim you'll be able to just take care of those." Debora then addressed the court, stating that the court had ordered a bank equity line of credit to pay her attorney fees, but that as of January, she had not been paid by Gregory for her half of the interest paid on the equity line. The court responded that "[a]ll I can do is what you agreed to in that document we attached. And it sounds like a lot of things were going to come out of when the sale of the house. That's all I can do. That's a binding court order." Gregory's counsel stated the agreement "does provide for it." The court observed that the permanent order provided that each was paying half the equity line. Debora's counsel stated, "if it remains an issue, somehow I have a feeling that it will wind up on your case management schedule, remaining issues whether it's a valid issue or not a valid issue." The court refused to comment on whether it was a valid issue, but strongly recommended that the parties "just finish things off with an agreement and get it filed. That seems to be probably the best thing to do. But if you can't, we'll see you in September." The September 18, 2009 case management conference was vacated after filing of the judgment. Around that time, attorneys for both parties substituted out of the matter, Gregory proceeding in propria persona and Debora being represented by a new attorney, Stephen B. Ruben.
Debora's set-aside motion. On November 30, 2009, Debora filed a motion to set aside the judgment (§ 2120 et seq.) on the grounds of her "mistake as to the terms and effect [of the] stipulated judgment." She asserted the judgment failed to provide fair and sufficient child support and that the provision making child support non-modifiable was against the law and public policy. She also asserted the lump sum spousal support was not fair or reasonable. She argued that at the time of the agreement she had not reviewed her vocational evaluation and did not know until the day after the settlement when she was informed of the results of the evaluation, that she was "effectively unemployable" and would have no income other than that provided by support orders. Further, she argued she was unable to evaluate the $100,000 lump sum in the context of a 22-year marriage, which sum was not payable until the house sold and where there was no provision for temporary support for the interim period. The market was declining and refinancing was difficult, if not impossible, given her lack of employment experience or marketable skills. She argued that calculations of the present value of the likely spousal support she would have received over ten years, showed an amount nearly three times the $100,000 lump sum payment. Neither she nor her attorney had made such calculation at the time of settlement. She lacked a cash expenditure analysis to establish Gregory's income and did not have the means to evaluate a possible permanent support order taking into account all factors enumerated in section 4320. She was not aware that the lump sum payment would be included in her gross income, absent a specific provision in the agreement specifically designating such payment as not includible in gross income and not a deduction. Consequently, she estimated the $100,000 lump sum payment that she would receive when the residence sold, would be reduced by approximately 35 percent for income taxes, to approximately $65,000 net.
Debora further challenged Gregory's unilateral transfer of the community property business (two restaurants), including alcohol licenses, to a third party employee for no consideration. Gregory was claiming no income as a result of this transfer. She also argued the judgment had failed to provide for the division of a life insurance policy with a cash value of $241,142.27, and that the judgment failed to provide for the $200,000 costs of repair her real estate broker estimated were needed to place the home on the market. Debora further asserted the judgment failed to make an equal division of community debts, including unpaid 2008 or 2009 property taxes on the residence ($16,837.36 and $15,324.22). She claimed she had no means of paying the debt. Debora further asserted the value of the two restaurant businesses was established in the agreement at less than half the actual value. She believed the court was suggesting the value of the community business was $400,000 in the in-chambers meeting with counsel, but she later learned that was Gregory's value, and not that of the independent expert. She asserted Gregory had breached his fiduciary duty in undervaluing the community business. She challenged the failure of the stipulated judgment to provide for payment of the mortgage, property taxes or insurance on the residence pending sale and argued the provision that "[a]ll previous orders are super[s]eded by the terms of this stipulated judgment," effectively terminated the previous spousal support order, leaving her no way to pay the mortgage debt, as she was unemployable and had no other source of income. She asserted she never understood, and therefore could not agree to, waiver of her Epstein reimbursement rights. She had paid mortgage debt totaling $108,427 and 2007 property taxes totaling $16,454.10 for which she was entitled to reimbursement, in whole or part, and her unknowing waiver prevented her from asserting this right.
Debora declared the facts she alleged as a grounds for relief materially affected the original outcome and that she would materially benefit from the granting of the requested relief. She also maintained that she had believed there were "still some numbers to be completed with reference to the business value" and that at the planned settlement conference she would receive "updated complete appraisals of both the businesses and the family residence from which the property could be divided." Finally, she asserted that the absence of any voir dire of her or Gregory by court or counsel at the June 5, 2009 proceeding precluded denial of her right to set aside the judgment on the grounds of mistake.
In a declaration supporting her motion, Debora described the settlement conference and her position in it. In addition to asserting that she agreed to the settlement due to her mistaken understandings, described above, she asserted that she felt pressure to settle. She felt pressured by Gregory's intent to call their oldest adult daughter as a witness, by her attorney's telling her he would not take the matter to trial as he had not been paid since January 2009, by her attorney's failure to tell her before the settlement agreement what the expert business evaluators (her own evaluator and the evaluator appointed by the court) had concluded was the value of the two restaurants. She was not told of the final house appraisal amount or the establishment of the insurance policy and the two businesses as community property. Nor had she seen Gregory's business plan for a new restaurant that he claimed to be opening. She did not have Gregory's 2008 tax returns for the purpose of establishing child support and had not received the final analysis of her cash expenditures that was to have been prepared by her then attorneys. She was told Gregory's offer was an "all or nothing" offer. She felt "extreme" pressure to settle. After the lunch break, her attorney told the court that she did not accept the settlement. "Everyone looked at me, [Gregory] marched off in disgust, and in a split second under the pressure of the situation, I acquiesced and said, 'I accept.' The pressure to settle was just too great; I was exhausted and in a 'conflicted' state of mind. The mental coercion I was experiencing induced me to make the agreement."
Gregory filed a declaration opposing the motion to set aside the judgment. On January 8, 2010, in a reply to Gregory's declaration in support of his opposition to the motion, Debora further argued that Gregory had breached his fiduciary duty to her by failing to produce any business records that could be used to value the businesses in spite of repeated requests, formal discovery and court orders. She cited his unilateral transfer of the community property business between December 1, 2008 and January 13, 2009, for no consideration and his failure to disclose that he was opening a new business or to provide her attorney with his business plan, despite a court order to do so. She referred to her previous motion for sanctions and for attorney fees and renewed that request, asking the court to take judicial notice of the same in support of her motion to set aside the judgment and her renewed motion for sanctions and attorney fees. Among other things, she countered Gregory's declaration that Michael Eggers, the Evidence Code section 730 business evaluator appointed by the court, told both attorneys that he would testify to a value of $400,000, if brought into court. She declared Gregory's statement was "false as told to me by [the expert] in a telephone conversation after settlement." She further maintained that no current business value was established and that the June 8, 2009 bill from the expert "proves that there was no report done before the settlement conference."
Debora also referred to Gregory's income and expense declaration (not filed with the court or included in the record) asserting it showed he had claimed monthly expenses of around $4,600 per month, but zero income.
On January 8, 2010, Debora requested the court to issue a statement of decision, pursuant to section 2127. She also requested the court to take judicial notice of her May 4, 2009 motion for attorney fees, costs and sanctions against Gregory for his asserted breach of fiduciary obligations. (The parties had stipulated to vacate the hearing on this motion at the June 5, 2009 hearing.)
January 15, 2010 hearing on set-aside motion. At the outset of the hearing on the motion to set aside the judgment, the court stated that it viewed the motion as seeking to set aside and vacate the judgment on the ground of the "mistakes" that were set forth by Debora. The court stated that it did not need to look at factual issues in order to reach its decision, so it refused to issue a statement of decision. The court agreed with Debora that the statement in the judgment that child support could not be modified was against public policy and was not enforceable as a matter of law. It therefore struck out the words "non-modifiable" from the judgment. As to the rest of the motion, the court stated that there were no facts to support the motion to set aside the judgment. Debora's conclusory statements that she was not employable were unsupported by facts as to why that was so. Further, her statements that she was not employable and could not refinance the house were "personal issues that everyone has when they enter into agreements" and the court did not see any "mistake" that would justify setting aside the order. Similarly, the issue of preparing the house for sale was not included in the agreement. "So it would be just deemed to put it up for sale. If somebody wants to do something different to enforce the judgment, they can bring a motion. I'm not going to say what a Court would or would not do. But the Court retains the jurisdiction, that's clear on my record, to do anything to enforce the judgment." The court refused to resolve the issue of the life insurance policy, stating that "if somebody thinks it's an omitted asset, they can always file on that." As to the $100,000 lump sum spousal support, payable at close of escrow on the home, the court stated it "saw no facts there to support anything here for looking at this as the type of material mistake with a materially different result." The court rejected Debora's claim that there was a set way to calculate the lump sum amount. According to the court, "[e]verybody has their own way of doing things, and anyone can do anything any way they want. That's why they call it a settlement."
Because the judge was rotating out of the family law assignment, the court discussed some background on the settlement, acknowledging it didn't have much to do with the motion, but that it might be useful to have in the record. The court observed that the parties worked hard at settlement, that they "came together" for a settlement conference on June 2009; the court was advised that a settlement had been reached. They wanted to think about it overnight to see if there was anything else they needed to deal with, so the matter was continued overnight to June 3, at which time they did reach a settlement. They came back again on June 5, and everyone represented they still wanted to do the settlement, so the court took the jurisdictional facts and did the dissolution on the record. The court stated that it set the settlement conference for September 18 to give the parties "ample time to get their judgment in, and if there was anything else." Setting the follow up settlement conference did not indicate the court thought that there was anything else to be done. The clerk dropped the case management conference from the calendar because the judgment was filed. The court observed that "some of the recitation of how things transpired" were not "exactly correct. But they have no bearing on what I'm doing here today. I just didn't want it to pass that I was adopting in any manner what Ms. Ent recited as to how things transpired, necessarily." The court concluded that it did not find that there were any facts that would support setting aside the judgment, with the exception of that part stating that child support was not modifiable.
Debora's counsel then argued that the one-page document was a "term sheet," not a marital settlement agreement or a stipulated judgment. He also urged the court to retain jurisdiction on spousal support, arguing that the judgment did not expressly prevent the court from retaining jurisdiction and that the court was precluded from failing to reserve jurisdiction on the issue of spousal support, absent a knowing and intelligent waiver by and voir dire of Debora. Counsel acknowledged this was a legal argument, not a factual one. The court asked counsel, "[W]here do you see in the judgment that the Court terminated jurisdiction over spousal support?" It refused to opine on whether or not it retained jurisdiction over spousal support, as "I don't have that motion in front of me to modify spousal support or to place a number on spousal support." The court reiterated that it was determining that "there are no facts here for me to set aside what they have here." The court refused counsel's request to "clarify" the judgment, stating, "Your judgment is your judgment." In response to Debora's counsel's query as to why the court did not voir dire the parties following the settlement, the court responded that "there is no such thing as a[n] always or a never. It is up to the discretion of the Court and the circumstances surrounding it." The order filed March 22, 2010, denied the request to set aside the judgment; struck language in "the Judgment/Marital Settlement Agreement stating that child support is non-modifiable" (emphasis omitted); and ordered the marital residence sold pursuant to the terms of the judgment. Debora filed this timely appeal from the order.
DISCUSSION
I. Standards of Review
Sections 2120 through 2129 provide authority for relief from judgments involving the division of property or the award of support in the dissolution of a marriage. Section 2122 setting forth grounds for relief, provides in its entirety:
"The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:
"(a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.
"(b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.
"(c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.
"(d) Mental incapacity. An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.
"(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.
"(f) Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). 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."
Section 2121, subdivision (b), provides: "In all proceedings under this chapter, before granting relief, the court shall find 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."
As the party seeking relief under section 2120 et seq., Debora bears the burden of proving the existence of at least one of the grounds for relief specified in section 2122, and that this resulted in a material disadvantage to her. (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 89-90; Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶ 16:137.3, p. 16-38 (Hogoboom and King, Family Law).) "Because of the 'material' effect and benefit conditions on [relief under this section] and the constitutional 'prejudicial error' requirement [citation], the moving party will be expected to make a persuasive evidentiary showing (through declarations) in support of the set-aside request. [¶] Conclusionary declarations and undocumented statements of counsel to the effect that the result would have been different and more equitable but for the alleged 'fraud,' 'perjury,' 'mistake,' etc. may be given short shrift. The moving party should present evidence substantiating a claim that the alleged basis for relief materially affected the original outcome and the moving party would materially benefit from the set- aside. [Citation.]" (Hogoboom and King, Family Law, supra, ¶16:137.5, pp. 16-38 to 16-39.)
Further, "the fact the judgment may have been inequitable to the moving party cannot by itself serve as a basis for setting aside that judgment. As stated by section 2123: '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.' " (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684 (Rosevear).)
Although the negligence of an attorney is not imputed to the client to bar an order setting aside the judgment, unless the client knew or should have known of the negligence and unreasonably failed to protect herself (§ 2124), neither does attorney negligence provide grounds for setting aside the judgment. (Rosevear, supra, 65 Cal.App.4th at pp. 686-687 ["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."]; Hogoboom and King, Family Law, supra, ¶¶ 16:130 to 16:130.1, pp. 16-36 to 16-37.)
Family Code section 2120 et seq. applies when either party seeks to "undo" a property division judgment that has adjudicated particular assets or liabilities. These statutes have no effect on proceedings to determine community interests in assets or liabilities that were not adjudicated by the judgment or that were omitted therefrom. In such a case, either party may seek relief by bringing a motion under section 2556. (Hogoboom and King, Family Law, supra, ¶ 16:160, p. 16-42.)
II. Adequacy of Stipulation and Order
Debora challenges the adequacy of the judgment filed on June 10, 2009. She contends that the judgment did not incorporate a stipulation for judgment, a settlement agreement or other written agreement. She further contends that the "Stipulation and Order" signed by the parties did not provide for child support, spousal support, or the division of property. She is incorrect.
As a threshold matter, this challenge to the validity of the judgment is not among the grounds for relief set forth in section 2122. Debora cites no authority for the proposition that this claim may be raised on appeal from denial of a motion to set aside the judgment pursuant to sections 2120 et seq. and we find none.
In any event, the judgment adequately incorporated the written agreement of the parties. Debora mistakenly attempts to separate the one-page document initialed by the parties and counsel from the "Stipulation and Order" executed in full by the parties and their attorneys, and ordered by the court. The one-page document was included as part of the stipulation.
As Debora acknowledges, the judgment of dissolution itself states, "A written stipulation for judgment between the parties is attached." The judgment also states that child support and spousal support are each "ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement," and that "[p]roperty division is ordered as set forth in the attached settlement agreement, stipulation for judgment, or other written agreement." Attached to the judgment was the "Stipulation and Order" containing the one-page terms of the agreement initialed by the parties. In executing the stipulation and order, the parties and their attorneys acknowledged therein that, "We have read the entire stipulation and order, understand it, and request that the Court make our stipulation the Court's order. We understand that willful failure to comply with the terms of the order may be a contempt of court and punishable by fine and/or imprisonment. We waive further notice of the order, the order may be granted by a judge pro tempore, commissioner, or referee of the court." The stipulation and order was accepted and ordered by the judge. Contrary to Debora's argument, this stipulation contained the essential terms of the parties' settlement; it provides for child support, spousal support and the division of property; it was executed by the parties and signed by the court. Although it was not titled "Marital Settlement Agreement," it served that purpose. As recognized by Hogoboom and King, "Usually settlements—whether reached orally 'before the court' or in writing signed by the parties—preliminarily simply state the 'deal points' and contemplate that a formal settlement agreement will be prepared.
Such a 'memorandum of understanding' is fully enforceable, but prudence suggests that it include a direct statement to the effect that it is binding and intended to be enforceable under [Code of Civil Procedure section] 664.6. [Citation.]" (Hogoboom and King, Family Law, supra, ¶13:62.5, p. 13-20, italics added; see Fair v. Bakhtiari (2006) 40 Cal.4th 189, 192, 199-200; Evid. Code, § 1123, subd. (b); Code Civ. Proc., § 664.6.) The language requesting the court to make the stipulation the court's order, and the acknowledgement that "willful failure to comply with the terms of the order may be a contempt . . . and punishable by fine and/or imprisonment," suffices as a statement to the effect that the agreement is binding and intended to be enforceable.
Although the settlement here was written, we note that even an "oral settlement stipulated to by the parties 'before the court' is enforceable under [Code of Civil Procedure section] 664.6 even though it contemplated execution of a written agreement that never came about. Disputes as to the terms of the alleged agreement can be resolved on the basis of the 'record' at the judicially-supervised proceeding, supporting and opposing declarations, and/or the judge's own recollection of what was agreed to. [Citations.]" (Hogoboom and King, Family Law, supra, ¶13:62.5, p. 13-21.)
Debora challenges the failure of the court to put the settlement "on the record" and to examine the parties under oath as to their understanding of the settlement terms. Debora is undoubtedly correct that doing so would have "avoided, in part" the issues raised here. The leading treatise on California family law urges that "[t]o the extent the [mandatory settlement conference] results in a settlement of all or any of the issues, the parties' concurrence and agreed-upon terms generally should be put on the record. This is not a statutory requirement and its absence will not necessarily impede enforceability of an alleged settlement agreement . . . . Nonetheless, unless the agreement is immediately reduced to a signed writing, prudence suggests that this step be taken, as it narrows the potential for later dispute about what was agreed to and whether the parties understood and acquiesced in the terms. [Citation.] [¶] Practices vary from court-to-court and among individual judges. Generally, an appropriate acknowledgement and stipulation for the record should recite the settlement terms and acknowledge that each party understands the terms and agrees to perform them." (Hogoboom and King, Family Law, supra, ¶13:48, p. 13-13.) The responsibility for seeing that this happens lies with counsel for the parties, but the court has a key role in ensuring that the record reflects the parties understand and agree to the settlement—, a record, we hasten to add, that would make a later set-aside motion unlikely and greatly assist our review.
Hogoboom and King suggest two good ways to protect against a section 2120 et seq. set-aside motion. "One approach is to videotape the settlement with both parties and their counsel present, acknowledging on film the same representations and waivers that would be made on the record at a court-supervised settlement. [¶] Alternatively, the settlement should be confirmed in open court on the record before a judge and should include clear and specific waivers." (Hogoboom and King, Family Law, supra, ¶16:131, p. 16-37.)
Nor have we found authority holding that the failure of the court to conduct such an on-the-record examination of the parties regarding their understanding of the settlement renders the settlement unenforceable or by itself warrants the setting aside of the judgment. Rosevear, supra, 65 Cal.App.4th 673, upon which Debora relies, does not so hold. In that case, the Court of Appeal affirmed the trial court's denial of the wife's motion to set aside a stipulated judgment under section 2120 et seq. where she raised claims of mistake and duress. (Rosevear, supra, 65 Cal.App.4th at pp. 681, 675.) There, the appellate court found the trial court did not abuse its discretion in rejecting the wife's claims where there was substantial conflicting evidence on the issue whether the property division and support arrangements were in fact inequitable, which the court found was "the essential premise for this claim of material mistake." (Id. at p. 685.) The appellate court rejected the wife's claims, based in part upon the transcript of the voir dire of the parties at the settlement conference as to their understanding of the terms of the settlement. (Id. at pp. 685-687.) "The transcript of the careful voir dire at the settlement conference, the fact the settlement conference lasted an entire day, [the wife's] execution of the stipulated judgment a full three months later, and her representation by counsel before, during and after the conference, all provide strong evidence in support of the trial court's conclusion that [she] failed to establish either mistake or duress. On this record, it would have been inappropriate for the trial court to have set aside the stipulated judgment." (Id. at p. 686.) Reliance on the voir dire of the parties as one of several factors supporting the trial court's refusal to set aside the judgment does not transform voir dire into a requirement, the absence of which will prevent a court from rejecting a party's later claim of mistake or duress in entering a settlement. Nevertheless, the type of voir dire conducted in Rosevear would also have greatly facilitated our review in this case.
III. Refusal to Issue a Statement of Decision
Debora contends the court erred in refusing to issue a statement of decision upon her timely request. Section 2127 provides: "As to actions or motions filed under this chapter, if a timely request is made, the court shall render a statement of decision where the court has resolved controverted factual issues." Debora made a timely request for a statement of decision as to the following issues: "1. [Debora's] motion to set aside the judgment of dissolution of marriage filed on June 10, 2009, on the ground of [Debora's] mistake as to the terms and effect thereof as to a stipulated judgment. [¶] 2. [Debora's] motion to set aside the judgment of dissolution of marriage filed on June 10, 2009, on the ground of respondent Gregory William Ent's breach of his obligation of fiduciary duty. [¶] 3. [Debora's] renewed motion and request for relief for monetary sanctions and attorneys fees against respondent Gregory William Ent for breach of obligation of fiduciary duty." She did not further specify each "principal controverted issue" as to which she desired a statement of decision. (Hogoboom and King, Family Law, supra, ¶ 15:145, p. 15-32; citing e.g., Code Civ. Proc., § 632, Cal. Rules of Court, rule 3.1590(d).) The court refused to issue a statement of decision, on the ground that it was not deciding any factual issues and ruling that there was not a sufficient factual showing by Debora to permit it to set aside the judgment.
We recognize that a statement of decision is not required where there are no factual issues and only pure questions of law are presented. (Hogoboom and King, Family Law, supra, ¶ 15:99, p. 15-22.) We shall conclude that the trial court did not err in refusing to issue a statement of decision in this case, as it decided no issues of material fact. Nevertheless, we feel compelled to point out that in the circumstances, issuance of a statement of decision would have been the better choice for this trial judge. The record would have supported factual findings the court could have made in refusing to set aside the judgment. Indeed, the court's description of the background and conduct of the settlement negotiations and its observation it did not necessarily adopt Debora's version of what transpired during those negotiations is not something we may consider on this appeal (Hogoboom and King, Family Law, supra, ¶ 15:162, pp. 15-35 to 15-36); but it would have been very relevant as part of a statement of decision. A statement of decision here would have been beneficial to the parties' understanding of the court's refusal to set aside the judgment and would have greatly facilitated our review. We express our concern mainly because it appears that the trial judge's refusal to make findings of material fact and to incorporate them into a statement of decision was attributable, at least in part, to the fact that she was rotating out of the family law assignment.
We infer that her unwillingness to prepare a statement of decision was influenced by a desire to avoid the time and effort that it would have required. This is not commendable. We now turn to Debora's contention that the court's refusal to issue the statement of decision requires reversal.
Debora claims that she entered into the settlement agreement due to various mistakes of fact and law. We must determine whether Debora's motion raised issues of material fact that the court resolved or whether, as the court maintained, it was not required to decide factual issues because Debora did not make a showing sufficient to allow the court to exercise its discretion to set aside the judgment. In so doing, we are mindful that the reporter's transcript of the proceedings is not a substitute for a formal written statement of decision. (Hogoboom and King, Family Law, supra, ¶ 15:162, pp. 15-35 to 15-36 ["Upon timely request for the statement, it is reversible error to require the parties to resort to the reporter's transcript as a substitute for a formal written statement of decision."].)
We note the question presented is not one of substantial evidence or the correctness of the court's determination. Nor does harmless error analysis apply here. It is well established that "[i]n a nonjury trial, the trial court's failure to render a statement of decision after timely party request ([Code of Civil Procedure] § 632) is reversible per se." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 8:317, p. 8-194.1, citing Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 681; In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010-1011; In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 282-284; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8.25, pp. 8-14 to 8-15.)
However, as we have recognized above, the moving party must make a persuasive evidentiary showing (through declarations) in support of the set-aside motion. Conclusory declarations and undocumented statements "that the result would have been different and more equitable but for the alleged 'fraud,' 'perjury,' 'mistake,' etc. may be given short shrift." (Hogoboom and King, Family Law, supra, ¶ 16:137.5, pp. 16-38 to 16-39.)
We take Debora's claims of mistake, breach of fiduciary duty and duress in turn: A. Mistake
Employability/ability to refinance the house. In her declaration Debora maintained that, when she signed the stipulation, she believed she would have a legitimate chance to obtain refinancing of the residence and to continue to live there. She discovered the next day that this would be impossible, as the vocational evaluator had advised her that there were no jobs available to her and without monthly spousal support she could not qualify for a loan. The court determined Debora's conclusory statements that she was not employable were unsupported by facts as to why that was so. Her declaration states she had been told so by the vocational evaluator. The court could view her statement, unaccompanied by other details or supporting evidence, as merely conclusory and insufficient to support setting aside the judgment.
The court also determined that Debora's statements that she was not employable and could not refinance the house without spousal support were "personal issues that everyone has when they enter into agreements" and the court did not see any "mistake" that would justify setting aside the order. The occurrence of subsequent circumstances— such as being unable to refinance the home— arguably making the division of assets inequitable—do not alone warrant setting aside the judgment. (§ 2123.) Debora's statement that she mistakenly believed she would be able to refinance the home when she made the agreement, even if true, is not the type of "mistake" that would support setting aside the judgment.
Preparing the house for sale. Similarly, the issue of unanticipated expenses being required to prepare the house for sale is a circumstance arising after the entry of the judgment and would not in itself support setting aside the judgment. As the court observed, the judgment does not discuss preparing the house for sale. That she was unaware at the time of entering the agreement that the realtor would recommend incurring additional expenses in connection with preparing the residence for sale does not warrant setting aside the judgment. The court recognized that it retained jurisdiction to act to enforce the judgment, by making appropriate orders, including those connected with sale of the residence. The court did not resolve any factual issue in concluding that this issue was not the type of mistake for which the judgment could be set aside.
Adequacy of $100,000 lump sum payment. Debora's claim to have been unable to evaluate the worth of the $100,000 lump sum payment, payable upon close of escrow of the residence, is not the type of mistake that warrants setting aside the judgment. As the court observed, there is no single correct way to calculate the value of such a lump sum payment. Any negligence by her attorney in failing to advise her of the impacts of accepting this lump sum distribution (e.g., tax consequences or the unlikelihood of obtaining refinancing absent a steady income such as from employment or monthly spousal support) would not provide grounds for setting aside the judgment. Such an order may only be granted if it is based on one of the six exclusive grounds set forth in section 2122. (See Rosevear, supra, 65 Cal.App.4th at pp. 686-687.)
Even if the $100,000 lump sum for spousal support were shown to be inequitable, that alone would not transform the stipulation into a form of fraud, perjury, duress, mental incapacity, mistake, failure to comply with disclosure requirements or other ground for setting aside a judgment. (Rosevear, supra, 65 Cal.App.4th at pp. 686-687.)
Moreover, Debora's claim is premised on the assumption that the $100,000 lump sum payment is a complete, final and non-modifiable determination of her spousal support and that the court retained no jurisdiction to award her spousal support in the future. The premise appears at least questionable. (See §§ 3590-3593 [severability, modification and termination of spousal support agreements] 4336 [retention of jurisdiction over spousal support]; Hogoboom and King, Family Law, supra, ¶¶ 17:115 to 17:130, pp. 17-32.14 to 17-32.17.) However, the trial court properly refused to be drawn into a determination on the issue of whether it retained jurisdiction over spousal support, commenting that it had no motion to modify spousal support before it. The court reiterated that it was only determining that "there are no facts here for me to set aside what they have here."
"(a) Except as provided in subdivisions (b) and (c), the provisions of an agreement for the support of either party are subject to subsequent modification or termination by court order.
"(b) An agreement may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.
"(c) An agreement for spousal support may not be modified or revoked to the extent that a written agreement, or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination." (§ 3591, italics added.)
"Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage . . . of the parties where the marriage is of long duration." (§ 4336, subd. (a).)
Valuation of the businesses. The parties had agreed to a December 31, 2007 valuation date for the two restaurant businesses. Debora asserts she mistakenly thought the $200,000 offer represented a business valuation of $400,000 by the court and not Gregory's valuation, and that the businesses were worth considerably more. Her statements that the businesses were worth more than $400,000 was unsupported by any evidence other than her conclusory statement to that effect. In her reply declaration, she countered Gregory's statement that expert witness Eggers was prepared to testify to the $400,000 valuation by stating that Eggers told her in a phone conversation after settlement that Gregory's statement that Eggers was prepared to testify to that amount at trial was false. This hearsay statement, unsupported by any declaration by Eggers or other evidence as to the value of the businesses, is insufficient evidence supporting her claim of mistake and provides no assistance to Debora in carrying her burden of showing 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 relief." (§ 2121, subd. (b).)
Waiver of reimbursement rights. Debora maintains she never understood and, therefore, could not agree to waiver of her rights under Epstein, supra, 24 Cal.3d at pages 84-85, to be reimbursed for payments she made on the community property residence after the parties' separation. She stated she had paid mortgage debt and property taxes on the property and that she believed she was entitled to reimbursement for those payments. The trial court did not address this claim of mistake. The court doubtless could have found her claim that she mistakenly waived her reimbursement rights, to be not credible. However, the court stated at the outset that it was not required to issue a statement of decision, because it was making no material factual findings. At first glance, rejection of Debora's claim required a factual determination as to whether she mistakenly believed she was still entitled to reimbursement and did not understand the nature of Epstein waivers. However, on the record before us, the court could not properly have set aside the judgment or any part of it based on this claimed "mistake." Even if Debora did not understand the meaning of "Watts and Epstein claims," (In re Marriage of Watts (1985) 171 Cal.App.3d 366; Epstein, supra, 24 Cal.3d 76) the stipulation includes in the same sentence her waiver of "All reimbursement" claims. (Italics added.) Debora's conclusory statement that she did not realize that she was waiving her reimbursement rights flies in the fact of this express statement and is not sufficient to support the relief she seeks.
Future hearing on unresolved issues. Debora maintains that she reasonably, but mistakenly, believed from the court's comments regarding unresolved issues, that details and unresolved issues would be addressed at a September case management conference. She refers to her own conclusory declaration and to the transcript of the June 5, 2009 hearing for support. The court made clear from its comments at that hearing that it believed the main terms of the settlement were included in the agreement. Before the recess the court stated: "[t]he terms are all there already in that order [the Stipulation and Order], but this will flesh them out and anything that you forgot, you know, the tea pot that you want or something." When the parties returned, the court stated its understanding that "there were some issues remaining that you weren't able to resolve, but that you do—we will go ahead and go forward with taking jurisdictional facts. We'll do the divorce as of today . . . ." The court set a case management conference for September 18, 2009, so that "[i]f there are any issues that need to be resolved that weren't part of this judgment, put it in your case management questionnaire what they are or attach something to that, so that I know what I'm dealing with." (Italics added.) These comments, taken together, give no basis to believe that anything other than overlooked or omitted items or issues would be addressed in the later case management conference. The court's comments and the language of the executed stipulation and order leave no room for Debora's claim that she mistakenly believed that significant issues covered by the stipulation and order remained to be worked out.
Omission of life insurance asset. Debora maintains that the omission of the cash value of Gregory's life insurance policy from the stipulation was a "mistake." The court properly concluded at the hearing on Debora's motion to set aside the judgment that the omission of any provision regarding the life insurance policy did not warrant setting aside the judgment, but could more appropriately be addressed via a section 2556 motion to divide an "omitted" asset. B. Breach of fiduciary disclosure duties.
"In a proceeding for dissolution of marriage, . . . the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. . . ." (§ 2556.)
Debora contends that setting aside the judgment was warranted by Gregory's breach of his fiduciary duties to her. She argues that he failed to comply with disclosure requirements (§ 2122, subd. (f)) in that he: (1) failed to make any attempt to value the businesses that he managed and controlled; (2) served a perjured schedule of assets and debts by valuing the restaurants at "zero" in the schedule served on her shortly before the settlement conference; and (3) failed to produce business records that could be used to value the restaurant business, in spite of her repeated requests and court orders.
Debora relies upon In re Marriage of Varner (1997) 55 Cal.App.4th 128, 144, for support of her claim that Gregory's failure to disclose the value of the businesses and to provide evidence as to the value of those asserted community assets constituted a basis for the court to set aside the judgment based on mistake and under section 2122, subdivision (f). In re Marriage of Varner held that the failure of a spouse to disclose the existence or the value of a community asset constituted a basis for setting aside a judgment on the grounds of mistake under section 2122. (In re Marriage of Varner, supra, 55 Cal.App.4th at p. 144.) Subdivision (f) was subsequently added to the statute to include the "[f]ailure to comply with the disclosure requirements" set forth in the statute (§§ 2100-2113) as an additional ground for a motion to set aside a judgment. (§ 2122.)
In In re Marriage of Varner, supra, 55 Cal.App.4th 128, the wife was unrepresented by counsel at the hearing on the dissolution. (Id. at p. 131.) The husband testified the net value of the various business entities to be awarded to him equaled zero and he testified to a low net value for various real properties owned by the parties and awarded to him. (Id. at pp. 132-133.) On wife's later motion to set aside the judgment, she was represented by counsel. She submitted to the court detailed appraisals of two business properties that had a combined value of more than a million dollars, a preliminary appraisal of a third business in the range of $2 million to $2.75 million, rather than the zero testified to by husband, along with other reports containing preliminary estimates of value of various business entities she claimed were community assets. (Id. at p. 134.) The wife also submitted a declaration by the accountant originally hired by counsel for the wife to appraise the property for the dissolution. The accountant's declaration stated that the accountant had had difficulty obtaining from husband documents necessary to complete the analysis. It attached a declaration made at the time, outlining those difficulties and stating the accountant had been forced to rely on the representations of husband and his attorney in preparing the community property valuation. (Id. at pp. 134-135.) The appellate court noted that the values given to the accountant by husband at the time were substantially higher than those to which husband testified at trial. (Id. at p. 135, fn. 1.) In reaching its decision to overturn the trial court's refusal to set aside the judgment, the appellate court recognized that a party's representation of the value of an asset, favorable to that party, does not constitute extrinsic fraud. (Id. at p. 140.) Nevertheless, the court concluded that under section 2102, outlining the fiduciary duties owed from one spouse to the other, "each spouse has a fiduciary obligation as to 'The accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest or obligation and all current earnings, accumulations, and expenses,' and also has such an obligation with regard to 'The operation or management of a business or an interest in a business in which the community may have an interest.' [Citation.]" (Id. at p. 142, citing provisions currently found in section 2102, subd. (a)(1) & (3).) The facts "compel[led] a finding that husband breached his duty to provide an 'accurate and complete disclosure of all assets and liabilities' of the parties at the time of the negotiations surrounding the stipulated judgment. Wife contends that husband failed to disclose the true value of the assets accumulated by the parties during the marriage. Wife has supported her argument by submitting valuations of the property prepared by her experts, and even by husband's experts, and comparing them to husband's testimony at trial regarding the value of the community property. Wife has also provided loan applications submitted to banks by husband near to the time of the testimony showing dramatically higher values given to the properties on the loan applications than were testified to by husband at trial." (Id. at p. 143.) In light of this evidence, and the fact that the wife was unrepresented at the dissolution, the court held that "[l]ike perjury, the failure to disclose would induce the other spouse to stipulate to a judgment on the basis of incomplete or inaccurate information." (Id. at p. 144.) The court found the failure of husband to disclose the existence or value of a community asset constituted a basis for setting aside the judgment on the grounds of mistake under section 2122. (In re Marriage of Varner, supra, 55 Cal.App.4th at p. 144.)
In the instant case, no similar showing was made. Debora's conclusory statement, "I knew that the [Evidence Code section] 730 expert business appraiser had an incomplete report in 2008, in which on one approach he had valued the business at $738,000.00 but did not have sufficient information on cash receipts to complete the report," is insufficient. Unlike the wife in In re Marriage of Varner, supra, 55 Cal.App.4th 128, Debora presented no other evidence that the $400,000 value assigned to the businesses was incorrect. No declaration by the expert or other appraisal was presented in support of Debora's assertions that the businesses were worth more than the $400,000 value agreed to in the stipulation, or that Gregory had refused to provide the expert the documents the expert requested. Also, unlike the wife in In re Marriage of Varner, Debora was represented by counsel at all relevant times. Furthermore, she had previously moved for sanctions and to compel further discovery of Gregory regarding the businesses. These motions were taken off calendar upon settlement. The parties had argued on numerous previous occasions about Gregory's refusal to supply "Z" tapes (daily cash register receipts), with Gregory arguing they were irrelevant and he did not keep them, and Debora arguing they were critical to establishing the value of the businesses. Debora recognizes that at one point the court ordered them preserved, but that the court on more than one occasion refused to order their production. At a June 5, 2008 hearing, Gregory's counsel stated counsel's understanding from Gregory that the expert had not requested cash register receipts, but that Gregory had provided the expert with other documentation he had requested. Counsel for Debora complained that he was not receiving copies of documents requested by the expert and supposedly supplied by Gregory. The court ordered that, in the future, documents to the expert should go through counsel, rather than the parties. Further, it stated that in future, where one of the parties wished to raise a question whether either party was supplying the expert business evaluator with all the information he was requesting, the court wanted a declaration from the expert. The court also stated "[a]s far as the business, I'm not going to be ordering cash receipts and all those things until we get this evaluation done, see where we're at, and then if there's good reason for it. But otherwise, I would find that to be burdensome at this point."
At the time of the settlement conference, the record shows that Debora and her attorney knew the businesses had been transferred to an employee for no money and they knew they had not received copies of the register tapes. On May 4, 2009, Debora had moved for sanctions against Gregory for, among other things, allegedly failing to account for cash from the businesses, failing to retain or provide Z tapes, providing false preliminary declarations of disclosure and transferring the businesses without her consent. It appears also that Debora knew at the June 5, 2009 settlement conference of the partial previous appraisal of 2008 that she maintained showed by one approach, a value of $738,000 for the businesses. The parties had exchanged final financial disclosures a month before the settlement conference and Debora therefore also knew what Gregory claimed his assets and income were and that he had valued the businesses at zero. There is no basis for concluding that any of these circumstances, that she now claims evidenced Gregory's breach of his fiduciary duty of full and complete disclosure, were unknown to Debora at the time she signed the stipulation. Consequently, she cannot posit her claim of mistake upon these asserted breaches of duty.
Nor are we persuaded by Debora's claim that Gregory's asserted breach of fiduciary duty supported setting aside the judgment under section 2122, subdivision (f), or by her claim that Gregory submitted a perjured declaration, because the zero value he stated therein conflicted with the $400,000 value he offered at settlement and because the zero value is inconsistent with other information contained in the financial declaration. The financial disclosure statements were not filed with the court upon settlement. (See Hogoboom and King, Family Law, supra, [¶] 11:52, p. 11-11.) Nor were they before the court on the motion to set aside the judgment. Consequently, they are not in the record before us. Section 2107, subdivision (e), provides: "Upon the motion to set aside the judgment, the court may order the parties to provide the preliminary and final declarations of disclosure that were exchanged between them. Absent a court order to the contrary, the disclosure declarations shall not be filed with the court and shall be returned to the parties." Consequently, Debora's claim of perjury finds no support on the record before us. Were we to take judicial notice of the financial declaration, we would still conclude that Debora has failed to present evidence sufficient to sustain her claims of perjury or breach of fiduciary duty by Gregory. That Gregory valued the businesses at zero in the financial declaration is not inconsistent with an offer to settle based on a valuation of $400,000. That Gregory believed the value of the businesses was zero does not prevent him from offering to value them at a different and substantially larger sum for purposes of a settlement. Moreover, absent any evidence other than Debora's opinion that the value of the businesses was more than that stated in the stipulation, the court could not have found that "the facts alleged as the grounds for relief materially affected the original outcome and that [she] would materially benefit from the granting of the relief." (§ 2121, subd. (b).) The trial court did not error in failing to set aside the judgment on the grounds of the asserted breach of fiduciary duties by Gregory. C. Duress.
"Because the threat of public access might discourage full and truthful disclosures, the statutory scheme requires that each party serve his or her declarations on the other party . . . ; but the disclosure declarations are not filed with the court. [Citations.]" (Hogoboom and King, Family Law, supra, ¶11:52, p. 11-11, citing §§ 2104, subds. (a) & (b), 2105, subd. (a); Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1397-1398.)
Debora requests that we take judicial notice under Evidence Code section 459 of the "Schedule of Assets and Debts" final financial declaration served by Gregory on her attorney in preparation for the settlement conference, the transcript of a January 7, 2011 hearing containing a discussion about the Z tapes, and a copy of the Family Law Attorney's Real Property Lien (§ 2033) obtained by her first trial attorney before the settlement. The request is denied.
Debora argues on appeal that the judgment should be set aside where she alleged duress and coercion as a result of her counsel's telling her during the settlement discussions that he would not take her case to trial after she granted him a $150,000 attorney's fee lien on the home. This claim is precluded because duress was never raised as a ground for setting aside the judgment in the trial court. Debora's declaration in support of her set-aside motion described the extreme pressure she felt she was under to agree to the settlement agreement, including her feeling that her attorney had abandoned her when he informed her during the settlement conference that he would not represent her at trial and her distress at Gregory's listing of their eldest daughter as a trial witness. However, the set-aside motion was brought on the grounds of Debora's alleged "mistake as to the terms and effect" of the stipulated judgment, not on the grounds of duress. Although the points and authorities filed by Debora in support of the motion described her as feeling that she was "backed into a corner with no where to move," she did not raise duress as a ground for setting aside the judgment. Rather, her description of the pressure to settle was presented as a backdrop to her claim that she accepted the settlement because of several material mistakes she made as to its effects.
Our determination that the motion to set aside the judgment was not made on the ground of duress is further supported by Debora's failure to specify duress as an issue in her request for a statement of decision. She sought a statement of decision on the issues of her "mistake as to the terms and effect . . . as to a stipulated judgment," on the ground of Gregory's "breach of his obligation of fiduciary duty," and on her request for sanctions and attorney fees. (Italics added.)
Having failed to raise the issue of duress as a ground to set aside the judgment in the trial court, she may not raise it here for the first time on this appeal. (Eisenberg et al., Cal. Practice Guide: Civil Procedure and Writs, supra, ¶¶1:44, p. 1-10.1 ["Few issues can be asserted for the first time on appeal; ordinarily, issues not raised in the trial court proceedings (or raised but not pursued) are waived."], 8:236.1, p. 8-157 [party whose unsuccessful motion to set-aside a judgment was brought and argued under one statute cannot on appeal pursue a different statutory basis for vacating the judgment]; see In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 116-117 & fn. 17 [even if raised under the same statute, appellant is not permitted "to bootstrap onto this appeal any arguments regarding the underlying judgment that were not already raised on the motion to set aside in the trial court below"].)
We conclude that the trial court did not err in refusing to issue a statement of decision in connection with its denial of Debora's motion to set aside the stipulated judgment. For the reasons stated, we further conclude the court did not err when it struck the provision of the stipulated judgment stating child support was not modifiable, but otherwise denied Debora's motion to set aside the judgment.
DISPOSITION
The order denying the motion to set aside the stipulation and judgment is affirmed. In the interests of justice, each party shall bear its own costs on appeal.
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Kline, P.J.
We concur:
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Haerle, J.
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Richman, J.