Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Nancy A. Pollard, Judge. No. 02D004324 Request for judicial notice. Denied. Application to augment record on appeal.
John L. Dodd & Associates, John L. Dodd; and Ann Feather for Appellant.
Hickman & Carrillo, Gale P. Hickman and Olivia Carrillo Hickman for Respondent.
OPINION
FYBEL, J.
Introduction
Sherry Bridges filed a motion to set aside a stipulated order modifying the judgment dissolving her marriage to William C. Bridges. (We will refer to the parties by their first names to avoid confusion; we intend no disrespect.) Sherry claimed William had failed to make full and complete disclosures on his income and expense reports, and had failed to provide all necessary information to the expert whose cash flow reports were relied on by the parties in entering into the stipulated order. The trial court denied the motion.
We affirm. A motion to set aside a judgment of dissolution, or any part thereof, may only be granted if the court “find[s] 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.” (Fam. Code, § 2121, subd. (b).) (All further statutory references are to the Family Code, unless otherwise noted.) The expert appointed by the court, pursuant to Evidence Code section 730, testified that when he was presented with additional information by William, he calculated that William’s income had been overstated, meaning that any change in support would favor William, not Sherry. The trial court did not abuse its discretion in denying the motion.
Statement of Facts and Procedural History
Sherry and William were married on December 8, 1979, and Sherry filed a petition for dissolution of the marriage on May 1, 2002. A stipulated judgment of dissolution was entered on September 9, 2003. The judgment provided that William would pay Sherry $5,000 per month in family support, and divided the parties’ assets and debts.
William filed an order to show cause (OSC) to modify support and custody in August 2004. In July 2005, William and Sherry stipulated to the appointment of Duckworth and Mehner, certified public accountants, under Evidence Code section 730, to prepare a forensic evaluation of the parties’ cash flows. Sherry filed her own OSC in September 2005, asking the court to order William to reimburse her for life insurance premiums and tax refunds.
On this court’s own motion, the record on appeal is augmented with the OSC, filed on September 7, 2005, in Bridges v. Bridges (Super. Ct. Orange County, 2008, No. 02D004324). (Cal. Rules of Court, rule 8.155(a)(1)(A).)
On January 25, 2006, based on Duckworth and Mehner’s evaluation report, William and Sherry stipulated in writing to modify the judgment in order to resolve the issues raised by their respective orders to show cause. Sherry refused to sign a formal order based on the January 25 stipulation, and, on April 4, 2006, William filed a motion to enforce the settlement, pursuant to Code of Civil Procedure section 664.6.
After a hearing in April 2006, the trial court continued the motion to enforce the settlement to another date, and ordered William and Sherry to meet and confer. On June 23, 2006, William and Sherry revised the January 25 stipulation, deleting references to child support, and adding other language, including the following: “The order herein supersedes the support orders made Jan. 24, 2005.” William and Sherry initialed the revisions to the document, and Judge Claudia Silbar signed each page of the stipulation and order. The court’s minute order reads, in relevant part: “Handwritten stipulation and order signed and filed this date.” On August 16, 2006, a typed copy of the June 23 stipulation and order was filed. The language of the August 16 stipulation and order is identical to that of the June 23 stipulation and order.
On December 26, 2006, Sherry filed a motion to set aside the August 16 stipulation and order, pursuant to Code of Civil Procedure section 473, and Family Code sections “721 and 2102, 2103, 2104, et seq.” The court tentatively denied the motion under Code of Civil Procedure section 473, but granted it under Family Code section 2102: “So as a breach of the fiduciary duty to the petitioner, I’m going to set aside those findings and orders based on the material nondisclosures that respondent failed [to make]; therefore, any prior OSC’s resolved by the 1/25/06 stipulation are reinstated as to the financial issues.” Sherry also filed an OSC to modify spousal support, and to require William to pay for a new cash flow report.
Not until December 8, 2008, almost two years after the motion to set aside was filed, did an evidentiary hearing on the matter begin. The trial court and counsel engaged in the following colloquy to clear up the specific nature of Sherry’s claims:
“The Court: So it doesn’t matter what [William] put on his Income and Expense [Declaration]. The question is whether or not the cash flow information is correct from Mehner; is that right? I mean
“Ms. Feather [counsel for Sherry]: Not necessarily.
“The Court: Why not? If we appoint Mehner under [Evidence Code section] 730 to do a cash flow, it doesn’t matter what [William] puts on his Income and Expense Declaration. The issue for the Court to consider is the report on the cash flow from Mr. Mehner as it comes into evidence subject to foundation, but certainly subject to cross examination. So it’s either right or it’s wrong. [¶] It’s my understanding that with the cash flow, a stipulation was entered into soon thereafter. And then Mrs. Bridges raises the issue that the numbers are incorrect or she depended on them and found out, whatever. She questions the cash flow because the information, as stated by Mr. Mehner, is representations made by Mr. Bridges. Is that right? She says, ‘I question it.’
“Ms. Feather: Yes.
“The Court: And then Mehner does a cash re-evaluation using backup, and Mr. Mehner is going to tell us whether or not the ’05 cash flow that he did is accurate once he went back and re-examined it with supporting documentation provided by Mr. Mehner—by Mr. Bridges.
“Ms. Feather: Okay.
“The Court: Is that not where we are?
“Ms. Feather: But I would like to question Mr. Bridges on his layoff with Saunders.
“The Court: I don’t know how it’s relevant. How is it relevant? The hinge pin, the crux of this matter is the numbers in the cash flow. Is that not right? That’s what I said.
“Ms. Feather: Yes.
“The Court: Okay.”
Glenn Mehner testified that after completing his second review, he determined William’s cash flow was lower than Mehner had originally estimated. Mehner testified he was satisfied with the documentation submitted by William.
Judge Nancy A. Pollard made the following statement on the record: “So what [Mehner] said he got what we think may have been tentative because there was nondisclosure of sufficient information has now got information to support it and we have the same package. So nothing has changed. [¶] Now just because she has buyer’s remorse and says maybe I should have changed my mind later down the road for whatever reason isn’t good enough. The information she said she didn’t get, now we got. The numbers are the same. We are out of here.”
Additionally, Judge Pollard stated: “And what we’re talking about is whether or not the 1/25/06 stipulation entered into by the parties after negotiations and made an order in August of ’06 under a [Code of Civil Procedure section] 664 motion, should stand; or can it be set aside based upon your client’s representation that the numbers in the October ’05 preliminary report submitted to the parties and their counsel prepared by Mr. Mehner, are accurate or inaccurate because if there was a nondisclosure of all the documents, shouldn’t we set it aside? [¶] Then I ordered, all right, let’s have Mr. Mehner, the Court’s own witness, go back and find some documentation and do a more thorough analysis. He’s done that and he now says my ’05 numbers are good. We are finished. The end.”
The trial court denied Sherry’s motion to set aside. The court also denied Sherry’s request for a statement of decision as unsubstantiated and lacking specificity. Sherry timely appealed.
Discussion
I.
Statutory Authority for Sherry’s Motion to Set Aside
Sherry purported to bring her motion to set aside the August 16, 2006 stipulation and order under sections 721, 2102, 2103, 2104, and 2107. As discussed post, these statutes create fiduciary duties between spouses. They do not, in and of themselves, create a mechanism to rectify a breach of those fiduciary duties, with certain exceptions not relevant to this case.
Sherry also based her motion on Code of Civil Procedure section 473. On appeal, William argued the motion was untimely under that statute. Sherry conceded in her reply brief that she was not arguing abuse of discretion by the trial court under Code of Civil Procedure section 473. We need not further address that statute’s applicability.
A. Statutes establishing duties between spouses
Section 721 establishes a fiduciary duty between spouses regarding financial transactions between them. “[I]n transactions between themselves, a husband and wife 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. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following: [¶] (1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying. [¶] (2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions. [¶] (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.” (§ 721, subd. (b).)
Section 2102 et seq. sets forth the requirements for preliminary and final declarations of disclosure. The statutes themselves make clear that a motion to set aside a judgment based on false statements in a declaration of disclosure must be brought under section 2120 et seq. (§§ 2104, subd. (a) [judgment may be set aside due to commission of perjury in preliminary declaration of disclosure], 2105, subd. (a) [judgment may be set aside due to commission of perjury in final declaration of disclosure].)
Finally, section 2107 permits one spouse to obtain the other spouse’s compliance with the disclosure requirements by obtaining a court order, filing a motion to compel, seeking an order to preclude evidence, or requesting monetary sanctions. The statute also contemplates an order setting aside the judgment in an appropriate case. Such a motion is governed by another set of statutes within the Family Code; section 2107 is not self executing vis-à-vis motions to set aside.
B. Statutes creating procedures to set aside judgment in dissolution proceedings
Section 2120 et seq. sets forth the procedures for one spouse to attempt to set aside a judgment in a dissolution proceeding. The declared legislative purpose of these statutes is to balance the need to assure finality of judgments against the need to ensure fair division of marital property. (§ 2120, subd. (c).) Section 2121 provides: “(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter. [¶] (b) 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.”
Section 2122 sets forth the grounds for and time limits applicable to a motion to set aside a judgment. One of the stated grounds for a set aside motion is a party’s failure to comply with the disclosure requirements of section 2102 et seq. (§ 2122, subd. (f).) A motion based on the 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.” (Ibid.)
At this court’s invitation, William and Sherry filed supplemental letter briefs addressing whether Sherry’s motion was barred by the applicable statute of limitations. Sherry also submitted an application to augment the record on appeal with documents filed in the trial court that Sherry contends are relevant to a determination of the date on which she discovered or should have discovered William’s alleged failure to comply with his disclosure obligations. We need not address the statute of limitations issue in this opinion, and, therefore, we deny Sherry’s application to augment the record on appeal.
We conclude Sherry’s motion was a motion to set aside a portion of the judgment of dissolution, as modified by the parties, despite its labeling as a motion to set aside a stipulated order. “‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.’ [Citation.]” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.)
The following are the key dates and events that help us determine the nature of Sherry’s motion:
In September 2003, Sherry and William executed a stipulated judgment of dissolution.
In August 2004, William filed an OSC to modify the support and custody portions of the stipulated judgment.
In January 2006, William and Sherry stipulated to modify the judgment.
In June 2006, William and Sherry revised the January stipulation to modify the judgment and the trial court entered the stipulation as an order.
In December 2006, Sherry filed a motion to set aside the stipulation and order that modified the judgment.
Sherry’s motion asked the court to set aside a part of the judgment—the support provisions—which she and William had stipulated to modify. The provisions of section 2120 et seq. therefore apply to this case.
At this court’s invitation, William and Sherry filed supplemental letter briefs addressing whether section 3690 et seq., which creates procedures for motions to set aside support orders, was applicable to this case. Both parties argued section 3690 et seq. was not applicable (although for different reasons). In conjunction with her supplemental letter brief, Sherry filed a request for judicial notice of a portion of the legislative history of section 3690 et seq. Because we have determined section 3690 et seq. is not applicable to this case, the request for judicial notice is denied.
II.
Standard of Review
We review an order denying a motion to set aside a judgment under section 2120 et seq. for abuse of discretion. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 681 682.)
III.
The Trial Court Did Not Abuse Its Discretion in Denying Sherry’s Motion to Set Aside.
To obtain relief under section 2122, Sherry was required to prove “the facts alleged as the grounds for relief materially affected the original outcome.” (§ 2121, subd. (b).) The grounds alleged for relief were William’s failure to make complete, accurate disclosures in his income and expense declarations, and William’s failure to provide Mehner with all necessary information. However, Mehner testified his cash flow calculations actually showed William’s cash flow was lower after Mehner considered the new information with which he was provided. We conclude the trial court did not abuse its discretion in denying the motion to set aside because Sherry did not establish William’s failure to make full and complete disclosures materially affected the June 23, 2006 stipulation and order.
Sherry argues her due process rights were violated because the trial court denied her the right to present evidence. Whether to permit oral testimony on a contested issue of fact at a motion hearing is a matter reserved to the discretion of the trial court. (Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 1121; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485.) We find no abuse of that discretion here.
IV.
Attorney Fees
William and Sherry both requested attorney fees as sanctions on appeal. Neither, however, filed a separate motion for attorney fees complying with California Rules of Court, rules 8.54(a) and 8.276(a), (b). Therefore, neither party is entitled to be heard on the matter. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1434 [applying former rules of court]; Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402 [same]; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180 [same].)
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.