Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SFL 13013
Reardon, J.
Gregg D. Geiger died before a stipulated judgment was entered in the underlying marital dissolution proceeding. After his death, appellant Pamela Geiger moved to restore certain beneficiary designations and respondent executor of his estate moved for entry of judgment nuncpro tunc. The trial court granted Pamela’s motion and denied the Executor’s, in a disposition entitled “Judgment.” The Executor successfully moved for reconsideration and ultimately the court entered judgment nunc pro tunc. Pamela attacks the power of the court to reconsider its initial ruling, charges that reconsideration amounted to an abuse of discretion, and finally assails the entry of the antedated judgment. We affirm.
Gregg’s sister, Barbara Geiger-Parker, was appointed executor (Executor or Gregg’s sister).
I. BACKGROUND
A. Dissolution Proceedings
Pamela petitioned for dissolution of marriage and legal separation in February 2002. The couple had been married more than 16 years. They had three minor daughters. In September 2004, the parties participated in a settlement conference, at which time they settled all issues and reached an agreement on the record. The court granted dissolution of the marriage at that time and directed Clark Summers, counsel for Gregg, to “prepare the order” and Janice Spotswood, counsel for Pamela, to prepare the qualified domestic relations order.
Gregg died on July 19, 2007. Attorney Summers did not prepare the judgment; no form of judgment was ever submitted. The court substituted the Executor in the decedent’s stead.
B. Cross-motions
In November 2007, Pamela moved to restore beneficiary designations on Gregg’s life insurance and retirement accounts. The next year the Executor moved to enforce the settlement agreement and requested entry of judgment nunc pro tunc to September 13, 2004.
1. Pamela’s Motion
In support of her motion to restore beneficiary designations, Pamela declared that shortly after the court granted the marital dissolution, Gregg was diagnosed with cancer, and the parties decided they no longer wanted “a divorce.” Gregg moved back into the family residence in August 2006, Pamela notified her attorney that she did not wish to proceed with the dissolution and she believed her husband notified Summers not to proceed as well.
Meanwhile, in July and August 2005, Gregg identified his marital status as “married” and his wife as Pamela on several forms filed with Liberty Mutual. As well, in September 2005, Gregg opened an IRA with World Savings in which he listed himself as “married” and named Pamela, referred to as “spouse,” as the primary beneficiary.
However, Pamela believed that “sometime during 2005” Gregg changed the beneficiary designations on three other accounts: his 401(k) plan with Intersil and his 401(k) plan and life insurance policy with JDS Uniphase. She believed this occurred when Gregg’s sister visited Gregg in Santa Rosa. Pamela did not consent to, or waive, the changes.
With her amended motion Pamela submitted a copy of Gregg’s will dated November 21, 2006. The will stated that his former wife was not entitled to receive anything from the Intersil 401(k) account because she used “a large portion” of her original share of the funds in 2004 to purchase his portion of the Cloverdale residence and also received a lump sum of approximately $38,000 from that account as part of the marital settlement. Pursuant to the will, Pamela was entitled to receive half of the value of the JDS Uniphase 401(k) plan “as of the date February 28th 2002 plus any interest or losses which [may] have accrued after said date of, 28-02-02. The date reference is important as it is the date that Legal Separation/Divorce papers were submitted by my former wife... requesting the termination of our marriage.” The JDS term life insurance policy was mentioned in the will, to be distributed along with the other listed assets according to priorities which included a $20,000 bequest to his “former wife.” Finally, the will stated: “It is not clear if the divorce has been due to Lawyer Error. However we have lived apart for four and one half years... during which time Pamela has elected to have long term live-in lovers. Also the fact remains that our assets have already been distributed per legal agreement, back in 2004.”
Responding, the Executor declared that Pamela had received her share of the property settlement consistent with the judicially supervised settlement agreement; Gregg paid child and spousal support; he identified himself as “single” on his 2005 and 2006 federal income tax returns; any beneficiary changes were made after the court, at Pamela’s request, granted dissolution of the marriage; the parties never reconciled; and Pamela allowed Gregg to stay temporarily at her house for six to eight weeks prior to scheduled surgery by paying a $2,000 property tax bill; this accommodation gave him a chance to spend significant time with his daughters.
2. Executor’s Motion
In support of the motion to enforce, the Executor declared that, due to “the inadvertence of both parties’ former counsel[,] the agreements were not memorialized in a final Judgment.” Her attorney prepared a stipulated judgment nunc pro tunc conforming to the September 2004 transcript, but Pamela would not sign it.
Countering, Pamela stated that she participated in all of Gregg’s medical care and took out a line of credit so she could stay home with him and not work. In June 2005 Pamela told her attorney, Bruce Schwartz, that Gregg was seriously ill and the parties did not want to proceed with the divorce. Schwartz wrote to Summers indicating Pamela also said that Gregg had been trying to reach Summers to tell him not to enter judgment terminating marital status. Schwartz also asked Summers to confirm the matter with Gregg and to get back to him. Summers’s records included a June 27, 2005 entry: “Telephone call from opposing attorney and letter regarding not entering the judgment; letter to opposing attorney advising of status.” Pamela further explained that Gregg went to Seattle for treatment, staying there from November 28, 2006 through April 6, 2007. She stayed at home to take care of the children. Gregg was very angry that she did not accompany him. His sister came to Seattle to be his caregiver. Gregg returned home for about a month and then went to New Jersey to visit his ill mother. They talked on the phone two to three times a day; Pamela paid for all his bills in California. Gregg became increasingly ill in New Jersey; Pamela said she would bring him back to California, and made the necessary arrangements. But, he was too sick to travel and died in New Jersey.
C. Decision on Cross-motions
Ruling on the cross-motions, the trial court found, by a preponderance of evidence, that the parties abandoned the dissolution action, reconciled, and did many acts proving that the oral pronouncements of September 13, 2004, did not end the marriage. The court was particularly impressed with Schwartz’s letter and Summers’s corresponding billing. Additionally, it was convinced that despite Gregg’s will, the parties’ actions were more consistent with the couple never having divorced. The court was also troubled by statements of the Executor that amounted to personal beliefs or opinions. Pamela, on the other hand, produced written and signed documents. Accordingly, the court denied the Executor’s motion and granted Pamela’s request to restore beneficiary designations.
D. Motion for Reconsideration
Thereafter on October 8, 2008, the Executor moved for reconsideration based on newly discovered circumstances and facts on the issue of reconciliation. She provided Clark Summers’s declaration, dated October 7, 2008, on the following: Toward the end of 2004, Summers mentioned to Gregg that they needed to finish the judgment. He replied, “ ‘Don’t do anything yet. She (Pamela) is finally letting me see the girls and I don’t want to rock the boat.’ ” Summers noted that the divorce had been very acrimonious and bitter and Gregg had essentially been cut off from his daughters. Gregg participated in two divorce recovery classes in 2004 that were sponsored by Summers’s church, which he and his wife led, as well as a men’s group. In April 2005, Gregg advised Summers that he had been diagnosed with cancer. At that point Summers suggested Gregg should wrap up his legal affairs and enter judgment. Again Gregg responded that “because he was able to have regular contact with his girls, he was frightened that if he did anything, Pamela would keep the girls from him, and he wouldn’t see them anymore.” Summers asked Gregg if he were reconciling. Gregg assured him he had not and would not.
When Summers received Schwartz’s letter in June 2005, he called Gregg. Gregg informed him they had not reconciled. Summers and Gregg discussed “with brutal frankness the possibility that, given the deceitful and treacherous manner in which Gregg viewed her former conduct toward him, it was entirely possible that because of the guarded prognosis concerning Gregg’s condition, she would not be above attempting to reassert her position as Gregg’s wife thereby attempting to gain the entire community assets.” So, Summers again suggested it would be wise to enter judgment but again Gregg “couldn’t bear the thought of losing his daughters.” To Summers’s query about reconciliation, Gregg replied: “ ‘Absolutely not, but I am not going to take a chance on her keeping my girls from me again.’ ”
Summers saw Gregg at a men’s meeting in the spring of 2006. Gregg indicated that Pamela had been kinder and more understanding during the illness. Summers asked if that meant they were back together. Gregg said they were not.
Summers expressed his opinion, based on the presettlement history, that Gregg “lived in abject fear of the second loss of his children.” He concluded Gregg was acting under duress.
As to why he had not come forward earlier, Summers indicated that counsel for Gregg’s sister contacted him in the latter part of 2007 in connection with the administration of the estate. He had looked at the file at that time but could not locate a transcript of the settlement conference and advised the attorney how to obtain a copy. His office was in the process of being reorganized.
Then, when the Executor’s attorney contacted him “some months ago,” Summers searched for the file, but it was not in its expected place, nor was it with the recently closed files. On September 24, 2008, while looking through a storage box containing files which had been requested by a former client, he discovered the Geiger file. He had no way to contact the employee who had been in training during the office reorganization. Immediately upon discovering the file, he contacted the Executor.
On November 6, 2008-before the time set for hearing on the motion for reconsideration-the court entered “Judgment” granting relief to Pamela.
Responding to the motion for reconsideration, Pamela asserted that the motion did not set forth any new facts that were unavailable at the time of the original hearing, and the court did not have the authority to rule on the motion because judgment had been entered on the underlying motions.
The court initially indicated it was inclined to deny the motion because the information provided by Summers was not new. However, it ultimately granted reconsideration, granted the Executor’s original motion and entered the stipulated judgment nunc pro tunc to September 13, 2004. So ruling, the court determined that Summers’s declaration did provide a basis for reconsideration, the new material was “relevant and critical” and “tipped the scales of justice” in favor of the motion for judgment nunc pro tunc. This appeal followed.
Pamela has appealed from the December 8, 2008 entry of judgment nunc pro tunc as well as the February 5, 2009 findings and orders after hearing, in which the court granted the Executor’s motions for reconsideration and for entry of judgment nunc pro tunc and denied Pamela’s motion to restore beneficiary designations. Contrary to the Executor’s contention, the February 5, 2009 order is appealable as an order after entry of judgment. The judgment and the orders after hearing both relate to actions the court took on December 8, 2008. Had the court entered the orders after hearing at the same time it entered the judgment, the orders would have been subsumed within the judgment and properly addressed by one notice of appeal. Since the court engaged in a two-step process, the subsequent orders are appealable as orders made after an appealable judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).)
II. DISCUSSION
A. The Trial Court Had Jurisdiction to Consider the Motion for Reconsideration
The Executor first asserts that entry of the November 6, 2008 “Judgment” denying the motion for judgment nunc pro tunc and restoring the beneficiary designations divested the court of authority to entertain the Executor’s subsequent motion for reconsideration. It is true that entry of judgment strips the court of the power to rule on a motion for reconsideration. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.) However, as the trial court noted, although it instructed counsel “to prepare a judgment,” it should have asked for a “Findings and Order after an Order to Show Cause.... So, there is no judgment.”
“A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) On the other hand, an order is “[e]very direction of a court or judge, made or entered in writing, and not included in a judgment....” (Id., § 1003.) Additionally, “[a]n application for an order is a motion.” (Ibid.)
Unless noted otherwise, all statutory references are to the Code of Civil Procedure.
The November 6, 2008 directive, although denominated “Judgment,” was in reality an order. The directive announced the court’s ruling on the Executor’s motion for entry of judgment nunc pro tunc, and Pamela’s motion to restore beneficiary designations. Thus it resolved two pending motions, which were applications “for an order.” (§ 1003.) Moreover, substantively the directive was an interim determination of issues, not a final determination of the rights and obligations of the parties.
B. Sufficient New Facts Supported the Motion
Next, Pamela argues that the lower court should have denied the motion because it failed to allege new facts or law. We disagree.
A motion for reconsideration must be based on “new or different facts, circumstances, or law....” (§ 1008, subd. (a).) As well, the party seeking reconsideration “must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
Here the trial court relied on the declaration of Clark Summers as the new evidence supplying a basis for reconsideration. This case had been fraught with conflict. As the court pointed out, “Mr. Geiger did and said things that were 180 degrees opposite of each other.” And although the court regarded all the initial evidence as competent-“I decided it’s all good evidence”-it first concluded that Pamela’s evidence preponderated. On the other hand, Summers’s declaration provided the “missing part of the puzzle” that filled in critical blanks explaining Gregg’s behavior. Summers spoke of the acrimony and bitterness of the divorce proceeding, and was able to relay Gregg’s reports of consistently denying that he had reconciled with Pamela, while expressing fear that pursuing the matter to judgment would interfere with access to his daughters. Summers described Gregg as someone “acting under duress”; living “in abject fear of the second loss of his children.” He was trying to placate Pamela while maintaining the separation. The court did not abuse its discretion in concluding that Summers’s declaration constituted new evidence worthy of supporting reconsideration.
Further, contrary to Pamela’s contention, Summers provided an adequate explanation for failing to produce the declaration at the first hearing. In the late summer or early fall of 2007, counsel for Gregg’s sister contacted Summers. Although he had looked at the file at that time because it was among his active files, he was unable to locate the transcript of the settlement conference and told counsel how to get a copy. A new trainee was reorganizing his files. When counsel for the Executor contacted him “some months ago” (i.e., some months prior to October 7, 2008), he searched for the file but was not able to locate it. On September 24, 2008, he found it. The file was “badly out of closure sequence.” Thereafter Summers immediately notified the Executor and her office retrieved the file. Summers filed his declaration on October 8, 2008. Summers explained under penalty of perjury that through no “direct fault” of counsel for the Executor, “the clues as to what matters had been made part of the prior proceedings and the prompts which would have brought the facts set forth in this declaration to light were not available until, at the earliest, September 24, [2008].”
Pamela urges that because Summers did not allege amnesia preventing him from recalling conversations with Gregg, there was no reason why he could not have prepared the declaration for the hearing on the cross-motions. Although Summers had a relationship with Gregg that went beyond the attorney/client relationship, his last contact with Gregg was in April 2007. Moreover, months, probably close to a year, passed from the time he last looked at the file to its resurfacing on September 24, 2008. Given the frailties of memory coupled with the obligation to provide accurate information on a delicate subject, Summers discerned that he did not have the clues and prompts needed to substantiate the pertinent matters and provide an accurate summary for the court. The court did not abuse its discretion in concluding that the contemporaneous record of events in the attorney’s case file was a valid precondition to drafting the declaration.
C. The Court Properly Entered Judgment Nunc Pro Tunc
1. Governing Law
The Family Code permits the court to enter a decree of dissolution nunc pro tunc in situations where failure to timely enter the judgment is due to mistake, negligence or inadvertence. (Fam. Code, § 2346, subd. (a).) As well, our courts have inherent power to enter judgments retroactively. A judgment nunc pro tunc “ ‘ “should be granted or refused as justice may require in view of the circumstances of a particular case....” ’ ” (In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1177; see Phillips v. Phillips (1953) 41 Cal.2d 869, 875.) It almost goes without saying that the reason to exercise this power is to preserve the “legitimate fruits” of litigation that would otherwise be lost to the party seeking an antedated judgment. (Mather v. Mather (1943) 22 Cal.2d 713, 719; Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 239.)
The showing necessary to validate exercise of the court’s power to antedate a judgment is not onerous. (In re Marriage of Mallory, supra, 55 Cal.App.4th at p. 1179.) A court will always act on its inherent authority when the court itself is responsible for the delay or failure to enter judgment. (Id. at pp. 1179-1180.) Where a party’s conduct is at issue, it suffices to show that the party lacked heedfulness or was inattentive in not acting when action was required. (Id. at p. 1180.) Indeed, inadvertence or negligence sufficient to cure delay in entering judgment will be found where the party entitled to judgment had no valid reason to delay entry. (Ibid.) However, the deliberate decision of a spouse’s executor to await progress of an appeal and thus forego applying for entry of judgment does not constitute adequate grounds for antedating the judgment. (In re Marriage of Frapwell (1975) 53 Cal.App.3d 479, 484.)
Kern v. Kern (1968) 261 Cal.App.2d 325 (Kern) is particularly instructive. There, the trial court entered a final decree of divorce nunc pro tunc, on motion of the administrator of the deceased wife’s estate. After wife obtained an interlocutory decree of divorce, she suffered a heart attack. Husband and wife lived together eight or nine days before she suffered a severe stroke and another heart attack, leaving her partially paralyzed and mentally incompetent. Wife spent the rest of her days under hospital or rest home care. (Id. at pp. 327, 330.)
A major question before the court was whether the parties had reconciled. The conflicting declarations revealed a sufficient factual basis for finding that the parties did not intend to reconcile permanently. (Kern, supra, 261 Cal.App.2d at pp. 331-332.) On the matter of justification for retroactive entry of the decree, husband argued there was no showing of mistake, negligence or inadvertence. Certainly there was no such showing on wife’s part because her mental and physical illness prevented her from comprehending the marital situation or acting to enter judgment. (Id. at pp. 333, 335.) However, the person who had served as conservator of the wife’s person and estate supplied declarations stating that his delay in seeking a final decree was based initially on the hope that wife’s condition would improve to the point where he could discuss the situation with her, and then on the press of other business when her condition deteriorated. (Id. at pp. 333-334.) Upholding retroactive entry of the final divorce decree, the reviewing court concluded husband did not sustain his burden on demonstrating an abuse of discretion where (1) the trial court’s implied finding of inadvertence on the conservator’s part was supported by his declarations; and (2) the court also found, on conflicting but substantial evidence, that there was insufficient reconciliation to justify denying the decree. (Id. at pp. 336-337.)
2. Analysis
Pamela urges that the court erred in entering judgment nunc pro tunc. She focuses on the reality that Gregg told Summers several times not to prepare the judgment, arguing that this indicates Summers was deliberate in delaying preparation of the judgment, and hence his inaction was not the result of mistake, negligence or inadvertence.
Pamela’s characterization does not take into account the window into Gregg’s state of mind that Summers’s declaration opened. Resolute that reconciliation had not taken place, nonetheless, based on his experience in the dissolution proceedings, Gregg was crushingly afraid of losing contact with his children should he “rock the boat” by finalizing the judgment.
Pamela complains there was no evidence before the court that she withheld the children from Gregg or threatened that he could not see them if he finalized the divorce. This is not the point. What is the point is that Summers’s declaration sheds light on Gregg’s state of mind and the fear he expressed of losing connection with his daughters should he take the chance of entering judgment. As the trial court commented, the declaration “fills in the hole in regards to what was in the mind of husband.”
With this perspective, it is clear that Summers’s declaration was the tipping point that caused the court to change its mind on the issue of reconciliation. Like the court in Kern, with that declaration the trial court concluded that the parties had not sufficiently reconciled to justify withholding entry of final judgment. Further, like the conservator in Kern, Summers delayed taking steps to enter judgment based on his client’s mental state. Gregg was not mentally incompetent as was the wife in Kern. However, as a gravely ill man facing his own mortality, Gregg suffered abject fear that he would be cut off from his daughters, a fear that propelled him to instruct Summers not to finalize the judgment. This fear was the only impediment keeping Gregg, and hence Summers, from putting the matter to rest.
We realize that this scenario does not fit precisely within the statutory trio of mistake, negligence or inadvertence. (Fam. Code, § 2346, subd. (a).) Nevertheless, also framing the court’s ruling within the parameters of its inherent power to antedate a judgment to avoid injustice under the circumstances of a given case, we conclude the decision to do so here was sound. By retroactively entering judgment of dissolution, the court preserved the legitimate fruits of the underlying litigation, honored the dissolution entered orally on the record, and thus preserved Gregg’s right, as expressed in his will, to determine the disposition of his separate property assets upon death.
III. DISPOSITION
The judgment is affirmed nunc pro tunc.
We concur: Ruvolo, P.J., Sepulveda, J.