Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 06CEFL03141. Kimberly Nystrom-Geist, Commissioner.
Nancy J. Stegall for Appellant.
Terri L. McCracken for Respondent.
OPINION
CORNELL, J.
Debra Carver appeals from the trial court’s denial of her motion to set aside her default judgment and marital settlement agreement in a dissolution of marriage action. We will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
Debra and David Carver were married on November 22, 1975, and separated on June 7, 2006. At the time of separation David was employed as a fire captain with a gross monthly income of approximately $6,700; Debra was employed as an intelligence analyst for the federal government with a gross monthly income of $4,100. In June 2006, David filed a petition for dissolution of the marriage; he filed the petition in propria persona. On July 11, 2006, David filed a request to enter Debra’s default. A judgment of dissolution of marriage was entered on September 18, 2006. Notice of entry of judgment was served on Debra on September 18, 2006.
The parties will be referred to by their first names, not out of disrespect but to avoid any confusion to the reader.
Attached to the judgment of dissolution was a marital settlement agreement (the agreement) signed by both Debra and David before a notary on July 6, 2006. The agreement recites that each party either had reviewed the agreement with independent counsel or had knowingly and voluntarily waived the right to review by independent counsel. The agreement also states that the parties acknowledged and agreed that they entered into the agreement “voluntarily, free from duress, fraud, undue influence, coercion, or misrepresentation of any kind.”
The agreement included a listing of the community property owned by the parties, including four parcels of real property, household furnishings, several vehicles, an airplane, cattle, horses, and farm equipment. Community debt also was listed and included obligations owed on the airplane, farm equipment, real property, and one vehicle. Community assets included an interest in a California Public Employees’ Retirement System (CalPERS) retirement account, but no value was specified for the account.
The agreement awarded one 25-acre parcel of real property to Debra valued at $370,000; David was obligated to pay the $72,000 debt against that property. Debra also was awarded one vehicle valued at $12,873, all the household furnishings and goods valued at $25,000, and one-half of the community property interest in the CalPERS retirement account. In addition, David was to make a one-time payment of $20,000 to Debra as and for spousal support; Debra was to have no further claim for support. Debra was obligated to assume the debt on the vehicle awarded to her.
The balance of the community assets were awarded to David, including the family home and additional acreage, trucks, a boat, farm equipment, the cattle, horses, airplane, and one-half the community interest in the CalPERS retirement account. David was to assume all community debt, other than the loan on the vehicle awarded to Debra.
The agreement awarded Debra assets with a total listed value of $407,873 and obligations of $12,873, for a net value of $395,000, exclusive of the CalPERS retirement account. Under the agreement, David was awarded total real and personal property assets, exclusive of the CalPERS retirement account interest, in the amount of $1,063,800. Obligations totaling $566,000 were to be paid by David, for a net value of $497,800.
David received real property valued at $954,000, offset by debts secured against this property in the amount of $432,000, for a net value of $522,000 in real property. Personal property assets awarded to David were valued at $109,800. Additional debt that David was obligated to assume amounted to $134,000.
On December 21, 2006, Debra filed a motion to set aside the default judgment and the agreement and sought an award of additional spousal support. Debra alleged in the motion that at the time she signed the agreement, she was not represented by counsel; she did not know what her spousal rights were; and she had desired to reconcile with David. Debra maintained that she had cooperated and signed the agreement in the hopes that David would reconcile with her. Debra further alleged she had discovered, after seeking advice from legal counsel, that David had taken advantage of her and that the agreement was not fair and equitable.
David opposed the motion. In his response, David stated that Debra had had the agreement in her possession for several days before it was signed; she had discussed the agreement with their adult son before signing; she had made minor changes to the agreement before signing; and the agreement had been notarized before an impartial notary. David further stated that the agreement had been fully performed. The division of property was complete. Debra had already exchanged the 25 acres awarded to her in the agreement for a house and property in Clovis previously owned by their son; the $20,000 for spousal support had been paid; and David had paid any and all additional costs associated with the transfers of title and division of property.
A hearing on the motion to set aside the default judgment and the agreement was held on January 31, 2007. The trial court denied the motion, finding there was no extrinsic fraud. The trial court also found that Debra acknowledged in the agreement that she was signing the agreement freely and voluntarily and had not been subjected to any undue influence. Each party was ordered to pay their own attorney fees and costs.
DISCUSSION
Debra appeals, contending the trial court erred in denying her motion to set aside the default judgment and the agreement. She further claims the trial court erred in not considering her request for long-term spousal support and in not ordering David to pay her attorney fees and costs associated with the bringing of the motion.
I. Motion to Set Aside Default and the Agreement
Approximately five months after signing the agreement, and three months after entry of her default and the default judgment, Debra filed a motion to set aside the agreement and the default judgment.
A marital settlement agreement provides, among other things, for a division of community assets and debts and for spousal support. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 9:310, pp. 9-70 to 9-71 (rev. #1, 2005).) It usually is then “merged” into the judgment of dissolution, whereupon it ceases to have any independent legal significance; the parties’ rights and obligations are governed by the judgment alone. (Id., ¶ 9:443, p. 9-98.10 (rev. #1, 2006).)
Traditionally, set aside motions in family law court were governed by Code of Civil Procedure section 473 when brought within six months after entry of judgment. (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32.) Thus, the trial court had the power, upon any just terms, to relieve a party from a judgment taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) After six months had passed, however, an otherwise valid and final judgment could be set aside only if it had been obtained through extrinsic fraud. (Heggie, at p. 32.)
The law governing the circumstances under which a judgment could be set aside after six months became the subject of considerable confusion and led to increased litigation and unpredictable and inconsistent decisions. (Fam. Code, § 2120, subd. (d); Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143.) Accordingly, in 1993 the Legislature undertook to rationalize this area of family law by enacting Family Law sections 2120 through 2129, the “Relief from Judgment” chapter. (In re Marriage of Heggie, supra, 99 Cal.App.4th at p. 32.)
Code of Civil Procedure section 473 and the Relief from Judgment chapter now coexist, operating as alternative bases for relief. (In re Marriage of Heggie, supra, 99 Cal.App.4th at p. 32.) Within six months of the judgment, a litigant may seek relief under either section. (Ibid.) Further, the Relief from Judgment chapter superimposes a rule on the trial court’s discretion under Code of Civil Procedure section 473 by prohibiting a judgment being set aside simply because the trial court finds it was “‘inequitable when made.’” (Fam. Code, § 2123; Heggie, at p. 33.) Thus, the Relief from Judgment chapter has expressly curtailed whatever discretion the trial court might have had under Code of Civil Procedure section 473 to set aside a family law judgment because it was somehow “inequitable.” (Heggie, at p. 33.)
Under Family Code section 2122, any motion to set aside a marital dissolution judgment must be based on actual fraud, perjury, duress, mental incapacity, mistake of law or fact, or failure to comply with disclosure requirements. The moving party is required to establish both the existence of one of these specific grounds and that he or she would materially benefit from the granting of relief. (Id., § 2121, subd. (b); In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684-685.) Moreover, a judgment cannot 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.” (Fam. Code, § 2123.) The trial court’s ruling on a motion under the Relief from Judgment chapter is reviewed for an abuse of discretion. (Rosevear, at p. 682.)
Mistake, inadvertence, surprise, or excusable neglect
Debra contends the trial court erred in denying her motion to set aside the default judgment pursuant to Code of Civil Procedure section 473 on the grounds of mistake, inadvertence, surprise, or excusable neglect. A motion seeking relief on the basis of surprise, inadvertence, mistake, or excusable neglect is addressed to the sound discretion of the trial court. Absent a clear showing of abuse of discretion by the trial court, its decision will not be disturbed on appeal. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
Debra asserts that she was ignorant of the consequences of signing the agreement; therefore, her signature was a mistake. She contends her signature was inadvertent because she failed to pay close attention to the contents of the agreement. Debra states that she was surprised by the breakup of her marriage. Finally, she claims excusable neglect because she failed to take the proper steps to protect herself; specifically, she failed to hire an attorney. Debra stated in her declaration in support of the motion to set aside default that she cooperated with David and signed the agreement in the hopes that he would reconcile with her.
Debra has failed to establish, either in the trial court or on appeal, surprise, inadvertence, mistake, or excusable neglect. Debra knew what she was signing; she was aware the document she was signing was a division of property and a fixing of spousal support. Debra was not operating under any mistake as to the nature of the document.
Debra’s affixing of her signature to the agreement was not inadvertent. It was a conscious, deliberate decision on her part. It was executed before a notary. By her own admission, Debra voluntarily signed the agreement because she believed signing the agreement would lead to reconciliation.
Debra was not surprised by the contents of the agreement. The document was in her possession for several days before she appeared before a notary and signed the agreement. Debra reviewed the document with her adult son before signing the agreement and made minor changes to the agreement.
There was no excusable neglect. Debra had the opportunity to seek the advice of counsel before signing the agreement, but she declined to do so.
The crux of Debra’s argument is that her ignorance of the law and failure to consult an attorney prior to signing the agreement justifies setting aside the default under Code of Civil Procedure section 473, subdivision (b). Under the test set forth in Donovan v. RRL Corp. (2001) 26 Cal.4th 261, however, it is Debra who bears the risk of her ignorance and failure to seek counsel. When a party “‘is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient,’” the party bears the risk of his own ignorance and mistake. (Id. at p. 283, quoting Rest.2d Contracts, § 154.)Here, Debra was aware she had limited knowledge with respect to her spousal support rights and division of community property, but nevertheless chose to execute the agreement without the benefit of legal advice. Consequently, Debra must bear the consequences of this choice.
As there is no evidence of surprise, mistake, inadvertence, or excusable neglect, it was not an abuse of discretion for the trial court to deny relief from the default on this basis.
Inequitable allocation
Debra also argues that the default judgment and the agreement should have been set aside pursuant to Code of Civil Procedure section 473 because the agreement did not provide for an equitable allocation of assets. She also contends Family Code section 721, which imposes a duty of good faith and fair dealing on the part of each spouse, allows for the agreement to be set aside because it did not provide for a fair and equitable division of assets.
Family Code section 2123 specifically prohibits setting aside a judgment on the basis that the distribution of assets is found to be inequitable. This provision of the law applies to motions filed under Code of Civil Procedure section 473. (In re Marriage of Heggie, supra, 99 Cal.App.4th at p. 33.)
Furthermore, a settlement agreement should not be set aside absent fraud or undue influence. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672.) There was no evidence before the trial court that David committed any fraud or influenced Debra in any way to trick or coerce her into signing the agreement.
Debra also contends the judgment and the agreement should be set aside because she did not recall receiving the statutory disclosure documents required by Family Code section 2105, subdivision (a) before any marital settlement is reached. She readily admits that there was a proof of service in the record showing that the required documents were served on her by David, and that she complied with the disclosure requirements as well. The trial court certainly was entitled to disregard this “failure of recollection” but, more importantly, Debra signed and filed a valid waiver of the filing of a Final Declaration of Disclosure pursuant to Family Code section 2105, subdivision (d). Debra’s argument necessarily fails.
II. Spousal Support
Debra also contends the trial court should have considered her request for spousal support separately, even though it denied her motion to set aside the default and the agreement.
A party to a marital settlement agreement may waive the right to receive spousal support. “[There is no public policy] prohibition against a waiver of post-dissolution spousal support.” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 9:337, p. 9-81 (rev. #1, 2007).) And, while a spousal support provision in a settlement agreement is ordinarily subject to modification or termination by the trial court, the parties may agree otherwise. (Fam. Code, § 3591.)
The agreement signed by Debra included a provision for a one-time payment of $20,000 as and for spousal support, with a waiver of future support. This payment was made by David to Debra, which both parties acknowledge, even if there is some dispute as to when the payment was made.
Here, there was a valid marital settlement agreement containing a waiver of future support and stating support was not subject to modification by the court. Thus, the trial court had no authority to order further spousal support payments. (Fam. Code, § 3591, subd. (c).) The validity of the spousal support waiver is subject to the same analysis as the agreement as a whole. As with the other provisions discussed above, Debra has not persuaded us that the trial court erred.
III. Attorney Fees
Debra maintains that because there is a disparity between David’s income and hers, the trial court should have ordered David to pay her attorney fees and costs. An award of attorney fees is within the discretion of the trial court and absent an abuse of discretion, will not be disturbed on appeal. (In re Marriage of Melton (1994) 28 Cal.App.4th 931, 939.)
The evidence established that David’s monthly income was greater than Debra’s, but David also had significant monthly debt obligations as a result of assuming almost all of the community debt. Debra had greater net monthly income and more liquid assets, in that she was not responsible for payment of any rent or mortgage and she had received the $20,000 payment as spousal support.
Under the circumstances, the trial court did not abuse its discretion in ordering each party to pay their own attorney fees and costs.
DISPOSITION
The order is affirmed. Costs are awarded to respondent.
WE CONCUR:
VARTABEDIAN, Acting P.J., LEVY, J.