Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court for Los Angeles County Super. Ct. No. MD024231, Randolph A. Rogers, Judge.
Michael V. Bryant, in propia persona, for Appellant.
No appearance for Respondent.
WILLHITE, Acting P. J.
In this marital dissolution action, husband Michael V. Bryant appeals from post-judgment orders denying his motions to reconsider (which were deemed to be motions to set aside the judgment), and ruling on his motion to clarify issues. We affirm the orders.
Although the notice of appeal, which was filed on July 17, 2006, appears to state that the appeal also is from the judgment entered on May 3, 2004 and the Qualified Domestic Relations Order entered on August 10, 2005, the time to appeal from the judgment or that order had passed. (Cal. Rules of Court, rule 8.104.)
The record on appeal contains only the judgment, some of the documents filed after the judgment, and reporter’s transcripts from four post-judgment hearings. Our discussion of the factual and procedural background is based in large part on the very detailed statement of decision issued by the trial court on June 14, 2006, supplemented by other documents in the record.
Michael and Bridgette Bryant married in December 1982 and separated in September 2001. Bridgette filed a petition for dissolution of the marriage in October 2001. The couple had four children, three of whom were minors at the time the petition was filed (only two of the children were minors at the time the judgment was entered).
We use the parties’ first names for the sake of clarity, and not out of disrespect.
The matter was set for trial in May 2002, but was repeatedly continued throughout the following year. There is a minute order in the record that indicates the parties stipulated in July 2003 to have the matter referred to binding arbitration. Another minute order, dated September 30, 2003, states that as of that date the parties were in arbitration with attorney David Bianchi, with a meeting scheduled for November 14, 2003. There is, however, no document in the record on appeal showing the parties’ stipulation to arbitration. Instead, the record shows that on November 4, 2003, the parties filed a stipulation for the appointment of Bianchi as judge pro tempore under California Rules of Court, rule 244. Bianchi’s oath of office as a judge pro tempore was filed with the stipulation. The parties stipulated that as judge pro tempore, Bianchi would “hear and determine all issues and motions and preside over the hearing of the within matter until rendition of ruling herein and shall continue to act in said capacity until the conclusion of all matters which may be determined within the jurisdiction of the Superior Court including, but not limited to, all post-trial motions relating to the judgment filed or to be filed herein.” Although the stipulation makes reference to payments that must be made to Bianchi “prior to the Arbitration hearing,” there is no other reference to arbitration or to statutes or rules governing arbitration proceedings.
Rule 244 of the California Rules of Court was renumbered as of January 1, 2007, and is now rule 2.831.
Despite his appointment as a judge pro tempore, the parties, the court, and Bianchi himself continued to refer to the proceeding before him as an arbitration. The parties received Bianchi’s judgment -- which Bianchi entitled “Judgment of Dissolution After Arbitration” -- in or about January 2004. The judgment, which was signed by Bianchi as judge pro tempore, was submitted for entry by the court, but was rejected twice by the judgment clerk because it did not have a supporting declaration. Bridgette resubmitted it with a declaration indicating that the judgment should be entered as a stipulated judgment. The judgment was entered on May 3, 2004, signed by Superior Court Judge Mark A. Juhas. A notice of entry of judgment was served on the parties by the clerk that same day.
The judgment consists of a Judicial Council form and the attached “Judgment of Dissolution After Arbitration.” A number of changes were made to the information that originally had been provided on the form judgment. For example, it appears that on the original form, the box indicating that the proceeding had been contested was checked, and the judicial officer was identified as “David W. Bianchi, Esq., Judge Pro Tem.” The document in the record shows that those items were crossed out, the box marked “Default or uncontested” was checked, and Judge Juhas was identified as the judicial officer.
Among other things, the judgment terminated the parties’ marital status as of May 3, 2004, awarded primary physical custody of the two minor children (then ages 11 and 8) to Bridgette, and ordered Michael to pay $963 per month in child support and $511 per month in spousal support. The judgment also ordered Michael to make an equalization payment of $30,260.22 to Bridgette. The judgment states that the support awards were based upon Bianchi’s findings that Bridgette had a net monthly income of $0 and that Michael had a nontaxable monthly income of $2,606. Although Michael was employed and received approximately $7,500 monthly in draws against commissions at the time the petition was filed, he filed a declaration in June 2003 stating that his income dropped to $2,606 per month because he had gone out on disability.
The total amount of child support set forth in the judgment is stated as $964. When the support amounts for each child are added, however, the total is $963. The parties filed a stipulation on the same day the judgment was entered, stipulating to the correct total amount of $963 in child support.
Six weeks after the judgment was entered, Michael filed an order to show cause for modification of child and spousal support, seeking a reduction of his support obligation on the ground that his state disability benefits had been exhausted and he no longer had any income. The court declined to reduce the support award, but on August 17, 2004, it ordered that payments would be suspended until the next court date. At that next hearing, held on October 6, 2004, the Los Angeles County Child Support Services Department appeared and asked that the matter be continued to January 2005, because Michael’s doctor was not releasing Michael back to work until November or December 2004. Neither party objected to the continuance, and the matter was continued to January 19, 2005.
We note that despite the parties’ stipulation upon appointment of Bianchi as judge pro tempore that Bianchi would hear all post-judgment motions related to the judgment, Bianchi apparently had no involvement in any post-judgment proceedings.
At the January 19 hearing, counsel for Child Support Services told the court that Michael’s OSC was not ready to proceed because there was no basis to calculate guideline support in light of the parties’ failure to provide financial documents. Counsel noted that Michael had been ordered to produce loan applications for certain loans he recently had applied for, as well as tax returns, but that he failed to provide any of the requested documents. When Michael said that he did not know which loan applications counsel was referring to, the court told him he was to produce any loan applications from the previous two years (Michael admitted earlier in the proceeding that he recently had applied for a loan), as well as his tax returns for 2002 and 2003. The court took the OSC off calendar and told Michael he could refile it when he was ready to produce all of the required financial documents.
Michael contends the trial court acted improperly in taking his OSC off calendar because the order was based solely on unsworn statements by counsel. Not so. Michael admitted to the court that he had not produced any loan applications or his 2002 and 2003 tax returns.
A week later, Michael filed a new OSC for modification of his support obligations, stating that he had exhausted his disability benefits, had no income, had depleted his savings, and was living off of loans from relatives. It appears, however, that Michael still had not produced all of the financial documents he had been ordered to produce. Over the next several months, Michael repeatedly was ordered to produce, but failed to produce, the documents Child Support Services had requested, including copies of loan applications.
On September 7, 2005, the court once again ordered Michael to produce the requested documents and vacated its August 17, 2004 order suspending support payments. The court also set a December 21, 2005 trial date on Michael’s OSC to modify his support obligation and on a motion Bridgette filed related to Michael’s failure to fully comply with the terms of the judgment related to the $30,260.22 equalization payment.
The trial date was continued to February 15, 2006. In the meantime, on December 30, 2005, Michael filed a “motion to reconsider.” This new motion challenged the characterization of certain property as community property in the judgment of dissolution filed in May 2004.
Because Judge Juhas had been transferred to another court at the end of December 2005, the February 15, 2006 hearing was before Judge Randolph A. Rogers. Michael informed the court at the hearing that he had been awarded disability benefits from the Social Security Administration, and was receiving $2,152.90 per month (but was paying $88.50 per month for medical insurance). Bridgette reported that she was in school to obtain a Medical Assistant Certificate and would not be able to secure employment until approximately September 2006.
Counsel for Child Support Services and Bridgette’s counsel entered the parties’ income information into DissoMaster, a computer program that calculates guideline child support and spousal support, and provided the results to the court. After considering those printouts, the court reduced Michael’s support obligations, ordering him to pay $652 in child support and $343 in spousal support. Counsel for Child Support Services noted that the minor children should qualify for derivative benefits from the Social Security Administration due to Michael’s disability, and that any such derivative benefits would offset the child support order if the benefits were paid to the custodial parent. The court therefore ordered the parties to put forth their best efforts to obtain those derivative benefits. The court stated it would revisit the support award in September 2006, to give Bridgette an opportunity to become gainfully employed and to see if Michael could obtain derivative benefits for the children.
We note that the minute order from the hearing states that spousal support was reduced to $393 per month. The reporter’s transcript shows that the court originally stated that the award was $343 per month, but later in the hearing, when reviewing the awards, stated it was $393. In the court’s statement of decision following a subsequent hearing, the court stated that the amount awarded on February 15, 2006 was $343.
In addition to ruling on the support issue, the court addressed the equalization payment issue raised by Bridgette. As discussed in more detail below, Michael made the equalization payment ordered by the judgment in a manner that left Bridgette responsible for paying taxes on the amount paid. Bridgette argued that this was contrary to the judgment, which provided that the payment was to be net after taxes. The court agreed, but deferred ruling on the additional amount Michael would be required to pay until Bridgette completed her tax returns and determined her tax liability. Finally, the court ordered Michael’s motion to reconsider, filed December 30, 2005, taken off calendar because it should be heard by the judicial officer who made the original ruling challenged in the motion.
Michael requested a statement of decision at the hearing. The following day, he filed a request for a statement of decision that asked the court to address 27 issues. Two weeks later, he filed two motions. The first was a motion to compel production of documents in response to a request for production he had served more than four months earlier. The second was a motion to clarify issues, which asked the court to address several issues, including some issues that were identified in his request for a statement of decision. A week later, on March 10, 2006, he filed a motion to reconsider that was virtually identical to the motion he filed on December 30, 2005, although this motion was set for hearing before Judge Juhas, the judge who signed the judgment of dissolution. Judge Juhas found that the motion to reconsider should be treated as a motion to set aside the judgment and transferred it to Judge Rogers for hearing.
A hearing on the outstanding motions was held on May 22, 2006, and the court took the matters under submission. It issued its orders and statement of decision on June 14, 2006. In the statement of decision, the court provided a very detailed account of the history of the litigation and addressed each of the issues identified in Michael’s motion to clarify issues and his request for a statement of decision regarding the court’s rulings at the February 15, 2006 hearing. In addition, the court made several orders. It denied Michael’s motions to reconsider on the ground that the issues he raised were resolved by the judgment, and he did not provide any evidence to warrant setting aside the judgment. The court also denied Michael’s motion to compel, finding that Michael was estopped from prosecuting the motion due to his own failure to comply with Child Support Services’ request for production, even in the face of multiple court orders to comply. In ruling on Michael’s motion to clarify issues, the court noted that the Social Security Administration granted the children derivative benefits in the amount of $1,076 per month. Based on that change of circumstance, the court vacated its February 15, 2006 order reducing Michael’s child support obligation and instead ordered that Michael pay child support in the amount being paid as derivative benefits. Finally, the court made orders regarding the manner in which certain funds would be applied against Michael’s support and other obligations, and the date on which interest would run on the equalizing payment Michael was ordered to make.
On July 17, 2006, Michael filed a notice of appeal that states he is appealing from the order entered on June 14, 2006. As noted above, the notice of appeal also states that he appeals from the “Default Judgment entered May 3, 2004” and the Qualified Domestic Relations Order entered August 10, 2005.
DISCUSSION
Although it is difficult to decipher, Michael essentially raises four issues in his opening brief on appeal: (1) the judgment is void; (2) he is entitled to relief from the judgment under Family Code section 2121; (3) the court erred in calculating his support obligations when the court modified them; and (4) the court erred by making him responsible for taxes and interest related to the equalization payment. None of his contentions has merit.
A. Validity of the Judgment
Michael contends the trial court erred by denying his motions to set aside the judgment because the judgment is void. His arguments as to why the judgment is void are inconsistent with each other and the record. For example, he states that the judgment arose from a judicial arbitration, and argues that the rules governing judicial arbitrations (Cal. Rules of Court, rule 3.810 et seq. [formerly rule 1600 et seq.]) were not followed in that the arbitrator failed to file and serve the judgment, entry of the judgment was not delayed, and there was no waiver of the right to a trial de novo. In the alternative, he states that the judgment was entered as a default or stipulated judgment and is void because he was not given notice under Code of Civil Procedure section 594 and because the judgment was not signed by both parties as required by California Rules of Court, rule 5.116 and Family Code section 2338.5, subdivision (a).
Michael’s arguments fail because the record on appeal shows that the judgment neither arose from a judicial arbitration nor was it a default or stipulated judgment. Despite the parties’ and the court’s characterization of the proceeding before Bianchi as an arbitration, there is no stipulation to judicial arbitration in the record on appeal. Such a stipulation is required under rule 3.812(a) [formerly rule 1601(a)] of the California Rules of Court. Moreover, although the form judgment attached to the front of the “Judgment of Dissolution After Arbitration” indicates that the proceeding was “Default or uncontested,” the record makes clear that in fact the proceeding before Bianchi was contested.
The marking of the “Default or uncontested” box on the form judgment did not transform the contested proceeding into an uncontested one governed by Code of Civil Procedure section 594, Family Code section 2338.5, or rule 5.116 of the California Rules of Court. Rather, it appears that the marking of that box relates to the process for entry of the judgment arising from the proceeding before Bianchi. By stipulating to the appointment of Bianchi as judge pro tempore to hear and determine all issues in this matter, the parties necessarily stipulated that Bianchi’s determination of those issues would be entered as a judgment. As a judge pro tempore, Bianchi had the same power as a superior court judge, including the power to enter a judgment. (Cal. Const., art. VI, § 21; In re Marriage of Assemi (1994) 7 Cal.4th 896, 908.) The parties and Bianchi, however, apparently agreed that the judgment setting forth Bianchi’s rulings would be signed and entered by a superior court judge: Bianchi and the attorneys for both parties each signed the judgment, approving it as to form and content, and a place was provided for the superior court judge’s signature under the phrase “IT IS SO ORDERED.” Thus, only the entry of the judgment was uncontested, and the statutes and rules Michael relies upon are inapplicable because the judgment arose from a contested proceeding.
B. Relief From the Judgment Under Family Code Section 2121
Michael contends he is entitled to relief from the judgment under Family Code section 2121 because the judgment improperly characterized a condominium and bank account as community property and failed to award him an equal share of the equity in the marital home. He is incorrect.
Michael also contends the court never held a hearing on the merits of his motions to set aside the judgment. The record shows that, in fact, the hearing was held on May 22, 2006. The court indicated it had the motions and oppositions, each supported by declarations, and asked if there was any additional evidence either party wished to submit. Michael stated that he had submitted trial briefs with additional evidence. The court then heard argument and took the matter under submission.
Family Code section 2121 provides that a court may relieve a spouse from a judgment of dissolution, despite the judgment’s finality, under certain circumstances. The permissible grounds for relief are set forth in Family Code section 2122 (hereafter section 2122), which also sets forth the time limits for bringing a motion to set aside the judgment.
Michael first brought his motion to reconsider (which was deemed a motion set aside the judgment) in December 2005, and brought a second, virtually identical, motion in March 2006. In both motions, he argued that Bridgette submitted fraudulent evidence to the court regarding the characterization of a condominium as community property and the value of the marital home. He also argued that the bank account was erroneously deemed community property even though the source of funds in the account was his separate property. Finally, he argued that he signed the quitclaim deed to relinquish his community property right to the marital home under duress. We address each argument in turn.
His first argument, based upon fraud, is barred by the time limit set forth in section 2122, subdivision (a). That subdivision provides that a motion based on fraud must be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud. Michael contended he provided evidence to Bridgette in discovery that established that the condominium was his separate property. He argued that a chart Bridgette provided to the court in the dissolution proceeding, however, listed the condominium as community property. In addition, that chart listed a fair market value of the marital home that was less than the value shown on another exhibit Bridgette provided to the court. He contended that as a result of this alleged fraud, the condominium was incorrectly characterized in the judgment as community property. But even if he had established fraud -- which is an issue we need not decide -- Michael knew or should have known of the alleged fraud when Bridgette submitted the documents in question to the court during the proceedings before Bianchi (in Nov. or Dec. 2003), or at the very latest, at the time the judgment was filed (in May 2004), when he saw that the property had been characterized as community property. Therefore, his motions filed more than a year later, in December 2005 and March 2006, are time barred to the extent they are based upon fraud.
We note that Michael argues in his opening brief on appeal that he did not receive his full share of the equity in the marital home as a result of Bridgette’s alleged fraud. He did not make this argument in his motions, however, and therefore forfeited the issue on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.) In any event, his argument also would be time barred because he knew or should have known of the alleged fraud when Bridgette submitted the documents to the court, which necessarily was before May 2004, when the judgment was filed.
Michael’s second argument does not present a cognizable ground for vacating the judgment under section 2122. In his motions, Michael merely argued that the presumption that sums on deposit in a bank account are community property can be rebutted if the person having the burden of proof can trace separate funds into a joint account. He neither argued nor presented evidence to show that Bianchi’s characterization of the bank account as community property was the result of fraud, perjury, or any other ground set forth in section 2122. To the extent he contends the characterization was the result of a mistake of law or fact and thus cognizable under section 2122, subdivision (e), that subdivision applies only to stipulated or uncontested judgments. As discussed in section A, ante, the judgment in this case was not a stipulated or uncontested judgment.
In his third argument, Michael contended he was under duress when he signed the quitclaim deed to relinquish his community property rights to the marital home. This argument does not present a ground to set aside the judgment under section 2122. Michael was required to sign the quitclaim deed to effectuate the judgment, which awarded the marital home to Bridgette as part of her share of community property. Although section 2122, subdivision (c), provides that a motion to set aside a judgment may be based upon duress, the duress must be related to the proceedings that resulted in entry of the judgment. This is made clear by Family Code section 2121, subdivision (b), which requires the court to find that “the facts alleged as the grounds for relief materially affected the original outcome.” Here, the “duress” Michael refers to relates to proceedings to enforce the judgment. Therefore, Michael is not entitled to relief from the judgment on this basis.
C. Modification of Support Obligations
Michael contends the trial court erred when it modified his support obligations in February and June 2006. Specifically, he argues that the trial court improperly relied upon the DissoMaster computer program on February 15, 2006 when it determined the lower amount of spousal support he would be required to pay (see In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525-528 [error to use computer program to determine permanent spousal support]), and it failed to properly ascertain Bridgette’s income when it modified child support (see In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332 [“tax returns are the core component” to determine child support]). We need not determine whether the trial court erred, however, because even if there was error, that error was harmless.
The appellant’s opening brief is not entirely clear regarding which support awards Michael is challenging. We limit our discussion to the modifications ordered on February 15, 2006 and in the order filed June 14, 2006 because those are the only orders from which a timely notice of appeal was filed.
We start from the presumption that the court correctly followed the law when it made its orders for child support and permanent spousal support in the judgment of dissolution. (In re Marriage of Drivon (1972) 28 Cal.App.3d 896, 898 [in the absence of evidence to the contrary, it is presumed that trial court followed established law].) Michael was not entitled to a reduction in his support obligations unless he could show a material change in circumstances warranting a modification. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
There was some confusion regarding whether the spousal support order was temporary or permanent because the judgment included an order to review the support order several months later. A temporary spousal support order is one that is made during the pendency of a dissolution proceeding. A permanent spousal support order is one made upon dissolution of the marriage, even though the order typically is not, strictly speaking, “permanent.” (See In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 507.)
Michael moved to reduce his support obligations on the ground that his state disability benefits, upon which the obligations had been based, had been exhausted and he no longer had any income. At the time of the hearing on his motion, however, Michael reported that he was receiving $2,152.90 per month in social security disability benefits. Because this amount was less than his monthly state disability income (which was $2,606), the court reduced his support obligation. The court did not take into account, however, the $1,076 in monthly derivative benefits Michael ultimately received from the Social Security Administration for the support of his minor children. When those derivative benefits are added to his disability benefits, his monthly income was greater than it was at the time of the original support order. Thus, there was no basis for any reduction in his support obligations. Michael therefore was not prejudiced by any error in the court’s computation of the reduced support obligations.
D. Equalization Payment
In the judgment of dissolution, the court found that at the time of separation Michael had taken control of $71,616.43, of which 50 percent was owed to Bridgette, less $5,547.99 that Bridgette owed to Michael. The court ordered Michael to make an equalization payment of $30,260.22 as follows: “Said sum shall be paid from [Michael’s] share of his defined contribution/401K plan, or from that source, taking into consideration that [Bridgette] shall net from [Michael’s] share [$30,260.22]. [Michael] shall be responsible for any tax associated with the transfer of that [$30,260.22] to [Bridgette]. In the alternative, [Michael] can choose to pay directly to [Bridgette] [$30,260.22] from any other available source.”
In July 2005, Bridgette moved for an order to sell the condominium awarded to Michael on the ground that Michael had not yet made the equalization payment. She asked for one half of the proceeds of the sale or, in the alternative, $30,260.21 plus interest. Three weeks later, the parties filed a stipulated Qualified Domestic Relations Order in which Michael transferred to Bridgette 50 percent of the funds in his retirement plans (as required by the judgment), plus two additional sums that totaled $30,260. Bridgette contended, however, that this transfer did not satisfy the judgment because it left her responsible for the income taxes upon her withdrawal of the funds. The court ruled that Michael was required to indemnify Bridgette from any tax liability arising from her liquidation of the $30,260 transferred from Michael’s retirement plans, and that Bridgette was entitled to interest from the date of entry of the judgment.
Michael contends on appeal that the trial court erred in ordering him to pay interest from the time judgment was entered until the Qualified Domestic Relations Order was perfected, because Bridgette was in control of perfecting the Order. We find no error. By statute, interest commences to accrue on a judgment requiring the payment of money on the date the judgment is entered. (Code Civ. Proc., § 685.020; In re Marriage of Pollard (1988) 204 Cal.App.3d 1380, 1383.) Michael argued to the trial court that he should not be responsible for interest on the equalization payment because any delay in the transfer of the amounts from his retirement plans was caused by Bridgette. The trial court rejected Michael’s “specious assertions.” The record before us -- which includes only Michael’s declaration in response to Bridgette’s motion to sell the condominium -- does not show that the trial court erred in declining to limit the statutory interest on the equalization payment.
Michael also contends on appeal that the trial court erred in holding him liable for the taxes Bridgette incurred when she received the $30,260 payment from his retirement plans because under the tax laws a distribution by a qualified plan to an alternate payee such as an ex-spouse is taxable to the alternate payee rather than to the participant. Michael is correct that distributions to an ex-spouse are taxable to the ex-spouse. But his contention ignores the judgment in this case. The judgment, which became final when neither party timely appealed, ordered that Bridgette must receive the net amount of $30,260.22, with Michael responsible for any tax associated with the payment of that amount. Therefore, the trial court properly ordered Michael to indemnify Bridgette from her tax liability arising from the distribution to her of the amounts transferred from Michael’s retirement plans.
DISPOSITION
The orders are affirmed. Respondent Bridgette Y. Bryant shall recover her costs, if any, on appeal.
We concur: MANELLA, J., SUZUKAWA, J.