Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VFL06218834. Brett R. Alldredge, Commissioner.
James C. Holland for Appellant.
Harbottle Law Firm and C.D. Harbottle for Respondent.
OPINION
Franson, J.
Appellant Kevin Maness contends the superior court erred in its ruling on his motion to amend or set aside the judgment entered in his marriage dissolution case. He contends the court denied him due process of law when, in an attempt to settle the matter, the court interrupted his testimony and ordered the parties to meet and confer, but then refused to let him resume testifying when the matter did not settle. As we shall explain, we agree with appellant. We reverse the court’s order on the motion to amend or set aside the judgment, and will remand the matter to the superior court to complete the hearing on that motion.
FACTS
A judgment of dissolution of the marriage of appellant Kevin Maness and respondent Lindsey Maness was entered on February 9, 2007. The judgment shows that the parties had approximately $900,000 in community assets and $400,000 in community debt, with a resulting community equity of almost $500,000 ($493,547) to be divided equally. Because under the judgment Kevin was to keep the home, valued at $279,406, he was to make an equalizing payment of $132,500 to Lindsey. Lindsey was represented by counsel. Kevin was not.
In May of 2007, Kevin, now represented by counsel, filed a motion to amend or set aside the judgment. In this motion, Kevin submitted a declaration asserting that the parties had reached an agreement on a judgment, but that the judgment filed had been submitted to the court by Lindsey’s counsel, without Kevin’s approval, and did not accurately reflect the agreement of the parties in a number of respects. The most significant of these, for purposes of this appeal, were (1) a joint Wells Fargo checking account, controlled by Lindsey and represented by her to have no money in it, but in fact Lindsey had withdrawn $6,357.68 from it within 5 days of the parties’ February 12, 2006, date of separation, and (2) Lindsey had failed to disclose a Bank of the Sierra checking account, in her name only, which had contained at least $6,025.38. Lindsey’s responsive declaration stated that the Wells Fargo money had been spent on community debts and that the Bank of the Sierra checking account contained inheritance money that was her separate property.
Lindsey then filed, in August of 2007, her own motion seeking a division of community assets she claimed had been omitted from the February 2007 judgment. Lindsey contended there were $5,000 in coins, 35 guns, and frequent flyer miles sufficient to qualify for four worldwide round-trip tickets, all of which had not been accounted for in the February 2007 judgment. Kevin filed a responsive declaration asserting that there was $866.76 in coins, that he had only a few guns, and that Lindsey was entitled to half the value of whatever the frequent flyer miles were worth.
At a January 17, 2008, hearing the court urged the parties to settle, but told them “if you really think there is a substantial issue that was missed that requires an evidentiary hearing I will give you one.” An evidentiary hearing was set for May 14, 2008, and on May 9 the parties filed a “JOINTLY SUBMITTED SUMMARY OF UNRESOLVED ISSUES” in which the parties agreed that the coin collection, the gun collection, the frequent flyer miles and the Bank of the Sierra checking account funds all had been “erroneously omitted” from the judgment. On May 14, the court continued the “trial” to August 2008 and ordered the parties to meet and confer in good faith, and to include the mediator (Linda Luke) with whom they had met in reaching an agreement on what was to be included in the original judgment. The parties and counsel met with Luke, but were not successful in resolving their dispute.
The hearing began on August 6, 2008. Linda Luke testified about the circumstances of the mediation, which led to the original stipulated judgment. Kevin then testified on his own behalf. He testified about his dismay that Lindsey’s attorney had submitted to the court a judgment containing language he had not agreed to and had objected to in writing to her. He testified “the items in that letter... were not even big deals” and “[w]e probably could have sat down in an hour and, you know, got the language straight” and “[w]e wouldn’t even have had to be here a year and a half later and spent all this money.” Kevin had yet to address the alleged omitted assets issue before the court recessed. Upon reconvening, the trial court instructed the parties to focus on the issues and attempt to resolve the case, saying “I want to resolve this case fairly, equitably, consistent with their agreement.” No resolution was reached.
Several dates for resuming the evidentiary hearing were set and continued. Rather than narrow and articulate the remaining issues, the dispute escalated and expanded. Lindsey filed a motion to dismiss Kevin’s motion. Kevin filed a motion to strike Lindsey’s motion to dismiss Kevin’s motion. We need not say more about these two motions except that the court ultimately heard and denied Lindsey’s motion to dismiss Kevin’s motion, and that this procedural wrangling further delayed the resumption of the evidentiary hearing, which ultimately was set for March 25, 2009. We also note that Lindsey’s unsuccessful motion to dismiss Kevin’s motion included the admission by Lindsey’s counsel that when she had submitted the original judgment to the court for filing, it had included “the wrong version of” an attachment to the judgment that had been intended to embody the agreement of the parties “and for this I apologize to... Mr. Maness.”
At the March 25, 2009, hearing, the parties again became side-tracked on the issues, in spite of the court’s efforts. In response to the court’s inquiry, Kevin’s counsel estimated the amount of money remaining in dispute as about $20,000. The court expressed its frustration that the parties had not settled the matter, given the amount of time and money that had been spent on this case since the original judgment was entered in January 2007. Kevin’s counsel told the court he was prepared to have his client continue with his testimony. In another effort to have the parties reach an agreement, the court asked them if they were willing to submit the remaining issues on the pleadings. Before they had an opportunity to confer with their respective clients, the court told the parties “[w]hat I’m going to tell you is that either you folks resolve this, or I am going to take it under submission and rule.” After a brief recess, the parties informed the court that there had been no resolution. In lieu of his client testifying, appellant’s counsel asked if appellant could submit “a declaration less than five pages on his part that would capsulate [sic] what we believe he would testify to.” Lindsey’s counsel objected. The court did not rule or further address the request. Appellant’s counsel did not renew his request, but concluded his argument by stating, “We look forward to the Court’s decision in getting these folks some finality on the matter.” The court then took the matter under submission.
The court issued its ruling on May 19, 2009. The ruling is actually favorable to Kevin in many respects in that it appears to have modified the judgment so as to include language Kevin advocated and more clearly describe the division of the parties’ retirement benefits and of Kevin’s 401K plan. It allowed Kevin to keep the coins and the frequent flyer miles. It also granted Kevin’s request that the gun in Lindsey’s possession be registered in her name rather than in his. But the trial court’s ruling made no mention of the omitted asset issue or the Bank of the Sierra checking account (thus, in essence allowing Lindsey to keep whatever amount she had in that account), and ruled that there would be “[n]o charge to Wife for amounts withdrawn prior to separation” from the joint Wells Fargo account.
DISCUSSION
We are not unmindful that the trial court here had what it deemed to be the best interests of the parties at heart. The court was well aware, and explained to the parties, that the cost of litigating their issues was exceeding the amount of money they were fighting over. Nevertheless, the decision of whether to settle belongs to the parties, and not to the court. Here, the court did not to allow Kevin to present his evidence, and then ruled without it. “‘Denying a party the right to testify or to offer evidence is reversible per se.’” (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291.)
“‘We are fully cognizant of the press of business presented to the judge who presides over the Domestic Relations Department of the Superior Court..., and highly commend his efforts to expedite the handling of matters which come before him. However, such efforts should never be directed in such manner as to prevent a full and fair opportunity to the parties to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination. [¶] Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California…. To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant evidence the parties desire to introduce.’” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357-1358, quoting Shippey v. Shippey (1943) 58 Cal.App.2d 174, 177.) The record on this appeal is a stark depiction of litigants who have suffered deep emotional wounds and a trial judge who made a Herculean effort to promote cooperation between litigants who seemed determined to be as disagreeable as possible. Although we reverse the court’s ruling for the legal error we describe, we commend the court for its efforts which preceded that error.
Testifying in court may or may not have some therapeutic effect for parties involved in a marital dissolution, but that is not its purpose. Its purpose is to present to the court the evidence needed for the court to decide the legal issue or issues before it. To that end the court may, in its discretion, ask counsel to present an offer of proof to the court of the content and relevance of the testimony counsel wishes to present, and thereby curtail the presentation of any testimony that is not pertinent to those issues. The court may not, however, refuse to hear “‘all competent, relevant, and material evidence bearing upon any issue properly presented for determination.’” (Elkins v. Superior Court, supra, 41 Cal.4th at p. 1357; see also, however, Evid. Code, § 352.) If, after hearing this evidence, the court should be of the view that evidence was presented by a party in bad faith, the court is well aware of its power to make an award of attorney’s fees and costs as a sanction pursuant to Family Code section 271.
DISPOSITION
The court’s order denying appellant’s motion to set aside or modify the judgment is reversed. The matter is remanded to the superior court for that court to hear appellant’s evidence and any other pertinent evidence. Costs on appeal are awarded to appellant.
WE CONCUR: Gomes, Acting P.J., Kane, J.