Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Kirtland Mahlum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct.No. MFL8938
Law Offices of Basil Chapman and Basil T. Chapman for Appellant.
Richard A. Miller for Respondent.
OPINION
Gaut, J.
1. Introduction
Susan Carol Anderson (Susan) appeals an order partially denying her motion to vacate and set aside the dissolution judgment entered pursuant to a marital settlement agreement relating to her divorce from Roger Earl Anderson (Roger). Pursuant to the agreement, the parties waived their rights to be served with a Final Declaration of Disclosure, as well as Income and Expense Declarations, and their rights to spousal support, and disposed of three parcels of real estate, household furnishings and other personalty, including two vehicles. Susan’s motion to vacate and set aside the judgment or portions thereof, or, in the alternative, to adjudicate omitted assets, was brought pursuant to Family Code sections 2122 and 2556, on the ground of fraud, duress, undue influence and mental incapacity.
We will refer to the parties by their first names for purposes of clarity and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1, and cases cited therein.)
The trial court found there was substantial failure to comply with the Family Code section 2104 disclosure requirements, and partially granted Susan’s motion to vacate the stipulated judgment as to the division of community assets and obligations. However, it concluded her claims that the waiver of spousal support was the result of duress and/or mistake were not credible, and denied the motion as to that issue. Susan contends that the trial court erred in denying her request to present live testimony at the hearing, in severing the issue of spousal support from the rest of the judgment, and in denying the motion as to waiver of spousal support. We disagree and affirm.
2. Facts
Roger and Susan were married on March 12, 1988, and separated on November 19, 2004. Although they were married for 16 years eight months at the time the petition for dissolution of marriage was filed, they had cohabited for several years prior to marriage and raised children together. Each had been married previously. Roger acquired various assets in the course of his previous dissolution, including real property in Cerritos, California, and Anderson Ice Company, which were acquired during the years 1976 and 1979, respectively, which he claimed as his separate property. However, Roger and Susan worked together to build up the business during the course of their 25-year relationship.
On March 10, 1988, two days prior to their actual marriage, Susan signed a premarital agreement. The agreement established the separate character of Anderson Ice Company, and the Cerritos residence, and included Susan’s waiver of any rights to “any equity, compensation, ownership, etc.,” as to those assets. The agreement further provided the parties would divide equally any money in checking or savings accounts, any insurance policies, and household items such as furniture and vehicles. The parties also agreed that, in the event of dissolution of marriage, each party would be responsible for his or her own attorney fees.
During their marriage, Susan and Roger accumulated substantial property, including a residence in Mexico. The business, Anderson Ice Company, which was run by Roger, was an ongoing concern. Susan worked outside the home during the marriage. When Roger and Susan separated, she lived with a “significant other,” Raymond Hubble, for the six-month period immediately prior to the filing of the petition for dissolution of marriage. In November, 2004, the parties met with a paralegal, retained for the purpose of assisting them in preparing the forms. Roger and Susan informed the paralegal they wanted a divorce, and provided statistical information to be included in the forms to be filed. They emphasized certain assets to the paralegal, and stated they would later agree as to a division of other assets. They discussed the fact that because both spouses were listed on the title of the undivided assets each party was protected.
After the uncontested judgment was entered on December 8, 2004, the parties executed deeds to convey the various parcels of real property according to their agreement. Susan participated in the listing of the family residence for sale and agreed to the listing price. On December 7, 2005, exactly one year after the entry of the judgment of dissolution of marriage, Susan filed a “Motion to Vacate and Set Aside Judgment and or [sic] Portions Thereof and in the Alternative to Adjudicate Omitted Assets” on the following grounds: (a) inadequate and false disclosures in the preliminary disclosure statement; (b) defective waiver of final disclosures procured by threats; (c) fraud, duress, mental incapacity and mistake resulting in the waiver of spousal support. She alleged that Roger was a tyrannical alcoholic who threatened her into signing the marital settlement agreement, and waiving her rights to spousal support. She also asserted she had minimal education, and suffered from a dependent personality, which made her easy to be manipulated by Roger; as a result, she did not realize what she was doing when she signed the marital settlement agreement. She signed it because she believed she could still get spousal support.
Roger denied any violence or threats; he asserted Susan actively participated in the divorce proceedings, including the retaining of the paralegal, and that the properties not disclosed in the judgment have been subsequently divided and transferred according to their mutual agreement. Regarding spousal support, Roger asserted that Susan had been married previously and had waived spousal support previously; that she was cohabiting with another man at the time of separation and divorce; and that she had substantial work experience outside the home.
Prior to the hearing on the Order to Show Cause re Susan’s motion, she filed a written request to present live testimony. However, at the hearing, no objection was made to proceeding by way of declarations. The trial court heard argument and took the matter under submission. On March 10, 2006, the trial court issued its ruling, in which it found there was a substantial failure to comply with the Family Law disclosure requirements. The court found Susan’s claims that her waiver of spousal support in the judgment was the result of duress and/or mistake were not credible, and denied the motion to vacate the stipulated judgment as to support. However, the court granted the motion as to the division of community assets and obligations. The formal Order on Order to Show Cause, incorporating the court’s rulings, was filed on May 26, 2006.
Susan appeals the denial of her request to present live testimony at the hearing, and the denial of the motion to vacate the judgment as to the waiver of spousal support. We find no error and affirm.
3. Discussion
A. Procedure By Way of Declarations
We deal first with Susan’s claim that the trial court abused its discretion in denying her request to present oral testimony. As indicated above, prior to the hearing, Susan filed a request to present oral testimony. At the inception of the February 10, 2006, hearing, Susan did not refer to that request, nor did she indicate there were witnesses present whom she intended to call; however, the trial court observed:
“To me it sounds like -- I’m going to listen to the argument and make a preliminary determination as to whether there would be enough to go forward on this particular motion because it may be if I say, well, there’s almost like a prima facie case then we are going to require -- I’m going to need some testimony to determine whether in fact there was fraud or not because I simply can’t look at it, the declarations from a cold record to determine whether or not there would be fraud.”
Susan’s counsel presented oral argument, referring to information contained in the declarations. Counsel did not object to submitting the case on the basis of declarations, and did not raise the issue of the need for live testimony at any time during the hearing; the trial court did not expressly deny the request. Counsel’s only reference to live testimony was a comment in passing that “. . . if you heard all the witnesses testify, you could have a different idea.” Under these circumstances, where Susan acquiesced in the hearing by way of declarations, she has waived this issue.
Rule 3.1306(a) [formerly rule 323] of the California Rules of Court provides that “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” Subdivision (b) of rule 3.1306 provides that a party seeking permission to introduce oral evidence must file a written statement indicating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. In the present case, while a request to present oral testimony was made, it was not denied and Susan’s counsel did not object to proceeding by way of declarations.
Note that this case involves a motion procedure, not a contested trial leading to judgment. Code of Civil Procedure section 2009, authorizes use of affidavits upon a motion or other special proceeding, and California Rules of Court, rule 3.1306 is consistent with this statute. A different policy relates to the use of affidavits or declarations in the place of witness testimony in contested trials leading to judgment. (Elkins v. Superior Court (2007) 41 Cal.4th 1337.)
An appellate court will ordinarily not consider procedural defects or erroneous rulings where an objection could have been, but was not presented to the lower court by some appropriate method. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; 9 Witkin, Cal. Procedure (1997) Appeal, § 394, p. 444.) Failure to object to a ruling or proceeding is the most obvious type of implied waiver. (In re Marriage of Hinman, supra.) “[W]here a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal.” (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501; see also In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150, fn. 4.)
While the above authorities do not deal with the precise procedural issue presented here, the same principles apply to Susan’s acquiescence in the procedure by declarations. A trial court is vested with discretion to allow or exclude oral testimony in amplification or impeachment of the declarations filed by the parties. (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483, 485.) The burden is on the party complaining to establish an abuse of discretion. (Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 449.) Where a party does not object to the use of affidavits or declarations in evidence, and where he or she participates in such presentation of evidence, he or she cannot question the propriety of the procedure on appeal. (Estate of Fraysher (1956) 47 Cal.2d 131, 135.)
Here, counsel was aware of the rule of court prescribing the procedure by declaration, as evidenced by the fact a request to adduce live testimony was made. However, when the matter was called for hearing, counsel did not call any witnesses, nor did he request a ruling on his request, nor did he object to the matter being taken under submission without live testimony. To the contrary, counsel presented oral argument, referring to the evidence presented in the declarations. Susan thus acquiesced in the procedure and waived any claim of error in the lack of live testimony.
B. Denial of Motion to Vacate Judgment as to Spousal Support
Susan’s main complaint is that the trial court denied the portion of her motion to vacate the judgment as to her waiver of spousal support based on its finding that her evidence lacked credibility. As we will explain, we cannot substitute our judgment for that of the trial court as to the credibility of witnesses or the proper weight to be attributed to the evidence, and the trial court’s order was a proper exercise of discretion. Therefore, we find no error.
Family Code section 2122 provides that a family court judgment may be set aside for actual fraud, perjury, duress, mental incapacity, mistake (whether of law or of fact), or failure to comply with the disclosure requirements of Family Code section 2100, et seq. Susan alleged that the stipulated judgment fell within all six grounds. Based upon the lack of proper disclosures, the trial court vacated the judgment as to the community property characterization and division but determined that the evidence presented on the issues of fraud, duress, mental incapacity, and mistake was not credible.
The court has broad discretion in refusing to set aside a judgment under Family Code section 2122, and that judgment is subject to reversal on appeal only if we find an abuse of that discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) As we recognized in Varner, “‘[T]he showing on appeal is wholly insufficient if it presents a state of facts . . . which . . . merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’” (Ibid., quoting Brown v. Newby (1940) 39 Cal.App.2d 615, 618.) Further, appellate courts do not reweigh evidence or reassess the credibility of witnesses. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)
A marital settlement agreement may be set aside for duress only if it was obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will. (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 743-744.) Duress is more than mere threats or puffing; a party must be shown to have intentionally used threats or pressure to induce action or nonaction to the other party’s detriment. (In re Marriage of Broderick, supra, 209 Cal.App.3d at p. 499 [italics by court], quoting In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1073, fn. 6.)
Susan argues that duress was established by evidence Roger was always verbally abusive to and dominant over her, that he had been violent in the past, that she was psychologically susceptible to duress, and that she was an unsophisticated business woman with a tenth grade education who was “the non earner.” However, she did not allege Roger’s threats were directed at forcing her to agree to the marital property settlement or to the waiver of support. She has not shown that as a result of the waiver of support, she has been forced to live below the marital standard of living. Since she did not present evidence of a need for support, even if she had credibly shown she felt threatened into waiving her right to spousal support, she has not shown she was harmed by the waiver.
Susan also relies on the fact she was unrepresented during the marital dissolution proceeding to demonstrate the agreement was not knowingly or intelligently made on her part. In her reply brief, Susan argues that before any papers were ever filed or signed, Roger had threatened to kill her and himself if she were to hire an attorney, that she believed these threats, and therefore never consulted an attorney. We assume her position is that a waiver of support by an unrepresented spouse is suspect, irrespective of the party’s need for support. This allegation, was denied by Roger, and found not to be credible by the trial court.
We decline to substitute our judgment for that of the trial court, particularly where the record supports the trial court’s finding. There was contrary evidence to show Susan and Roger mutually agreed that a party who sought legal representation would be responsible for his or her own legal expenses and no duress was found in connection with that agreement. Susan was involved in the hiring of the paralegal who drafted the agreement and the provision of information to be included in the paperwork. Further, Susan did not allege that the threats were made to induce her to sign the marital settlement agreement or to waive spousal support. To constitute duress, the threats must induce action or nonaction to the party’s detriment. (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84.) Inducing a spouse to refrain from seeking legal advice does not mean the waiver of spousal support was obtained by threats or duress where it did not result in an unfair advantage to Roger, and where she has not shown a need for spousal support.
The trial court, as the trier of fact, did not believe Susan’s assertions that the waiver of spousal support was the result of duress and/or mistake and Susan’s arguments seek to have us reweigh that credibility determination, which we cannot do. More importantly, Susan has not shown that Roger obtained an unfair advantage as a result of the duress. (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 731.) Although she alleged that some postjudgment transfers were either for inadequate consideration or refused altogether, these transfers occurred after the judgment of dissolution of marriage was entered, when no fiduciary relationship existed, such as could raise a presumption of undue influence. (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 87.) Further, she obtained “mutually agreeable advantages” from the postjudgment disposition of community property. Thus, absent a showing that waiver of support was the direct product of duress, the presumption of undue influence does not apply. (In re Marriage of Burkle, supra, 139 Cal.App.4th at pp. 735-736.)
Thus, even if the trial court had found Susan’s evidence credible, the trial court’s ruling was a proper exercise of its discretion.
C. Propriety of Severing Spousal Support from Division of Property
Susan also argues that the trial court erred in severing the support provision of the marital settlement agreement from the property settlement provisions. As we will explain, severance was proper.
Failure to comply with disclosure requirements may be a legitimate basis for vacating a judgment if the moving party shows that he or she was prejudiced by the nondisclosure. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 528; Fam. Code, § 2122, subds. (e), (f).) However, only the provisions materially affected by the nondisclosure should be set aside. (Fam. Code, § 2125.) In order to justify vacating the entire judgment, some showing that the spousal support and property division issues were interrelated is required.
There are generally two reasons for finding that support and property division issues are intertwined: First, when parties negotiate a settlement, they may divide the property and provide for support dependent upon the total assets of the parties. Second, where the agreement is reached after one party has fraudulently concealed community property, severing the issues would encourage spouses to practice concealment without risk. (Resnik v. Superior Court (1986) 185 Cal.App.3d 634, 637.) Neither of those circumstances is present here.
Susan relies on the case of In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, to argue that the two issues were so intertwined that the support waiver should be set aside by virtue of the nondisclosures. However, that case is in apposite where the wife in Brewer had undervalued one pension plan and did not disclose the existence of the second plan. The trial court in that case specifically found that the settlement agreement was global, because the two pension plans, which were major community assets, and the husband’s earning potential, were all part of his settlement decision. (Id. at pp. 1348-1349.)
However, in the present case, Susan did not present any evidence to show that she agreed to waive spousal support in consideration of a specific distribution of community property, or based on a valuation of the community assets which were disclosed, without regard for the undisclosed assets. Further, she did not present evidence that the existence of the undisclosed community property was concealed from her. We agree with the trial court’s observation that unless there is a requirement that the moving party show the entire property settlement was materially affected, “then anytime you’ve got an unadjudicated asset, the person can come in and say, I want to set aside the judgment . . . .”
Failure to comply with disclosures is not an automatic ground for vacating final judgments. (In re Marriage of Steiner & Hosseini, supra, 117 Cal.App.4th at p. 522 [“In this appeal we conclude that the failure on the part of two divorcing spouses to exchange final declarations of disclosure (Fam. Code, § 2105) does not constitute a ‘get-a-new-trial-free’ card . . . when there is no showing of a miscarriage of justice.”].) The fact Susan asserted that if she had received a properly prepared property schedule disclosing all assets and debts, she would have been in a better position to judge whether a “no spousal support for life” agreement was sensible or not does not show her waiver was interwoven with the property division.
Given that she was aware of the undisclosed community property, her statement does not establish that the decision to waive spousal support was “materially affected” by the nondisclosure. The trial court was correct in severing the support issue from the issue relating to undisclosed community property.
4. Disposition
The judgment is affirmed.
We concur: Hollenhorst Acting P. J., Richli J.