Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 05D003241, Richard G. Vogl, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Offices of Jan Mark Dudman and Jan Mark Dudman for Appellant.
No appearance for Respondent.
OPINION
FYBEL, J.
Introduction
A judgment by default dissolving the marriage of Dian Parker (Parker) and Everett O. Fuller (Fuller) was entered on July 20, 2005. A year later, Fuller moved to set aside the judgment of dissolution under Family Code section 2120 et seq. The trial court denied the motion, finding that Fuller had been served with notice of the default hearing and had decided not to contest entry of default. Fuller then brought an order to show cause (OSC) requesting the court to find certain items of personal property had not been adjudicated by the judgment of dissolution and to clarify parts of it.
Fuller appeals from the order denying his OSC. He did not appeal from the order denying his set-aside motion. Parker did not submit a respondent’s brief. We conclude the trial court did not err by denying Fuller’s OSC and therefore affirm.
Facts and Proceedings in the Trial Court
Fuller and Parker were married on February 13, 2003. On April 11, 2005, Parker filed a petition for annulment or for dissolution of the marriage. Fuller was served with the summons, petition, and preliminary and final declaration of disclosure. Fuller and Parker discussed the annulment/dissolution and agreed to a division of their property. Fuller told Parker he was not going to contest the proceedings and did not file any responsive pleadings.
On June 7, 2005, Parker had Fuller served with a request to enter default. The court clerk also mailed the request to enter default to Fuller’s home address. After Fuller received the request to enter default, he and Parker talked about the proceedings and the terms of a proposed judgment.
A default hearing was set for July 20, 2005. Fuller understood a default was being taken against him and knew of the time and location of the default hearing. He decided, however, not to contest the default.
The trial court denied Parker’s request for an annulment but granted a judgment of dissolution pursuant to the terms and conditions of Parker’s proposed judgment. The judgment of dissolution was entered by default on July 20, 2005. Parker waived spousal support, and the judgment did not award spousal support to Fuller. The judgment of dissolution specifically identified and awarded to Parker her separate property owned before her marriage to Fuller and property she purchased with separate property during the marriage. Paragraph III.B.1. of the judgment of dissolution awarded Fuller “[a]ny and all assets owned by the Respondent, EVERETT O. FULLER, prior to the marriage.”
Eleven months later, in June 2006, Fuller filed a motion to set aside the judgment of dissolution pursuant to Family Code section 1101 and 2122 and a claim of extrinsic fraud. He identified a series of issues that he claimed were unresolved in the judgment of dissolution. He contended (1) Parker still had items of his personal property and refused to return them; (2) the judgment of dissolution failed to account for $2,400 of his separate property that Parker took from his bank account; (3) the judgment of dissolution failed to account for $3,000 “from separate property funds regarding the sale of the Palm Desert Property;” and (4) he had contributed a total of $47,000 of separate property toward paying down a mortgage on Parker’s separate real property.
On August 4, 2006, the trial court heard argument and issued a ruling tentatively denying Fuller’s motion. The court trailed the matter to September 6 (later continued to September 26) in order to review a proposed statement of decision to be prepared by Parker.
On September 26, 2006, the trial court signed a statement of decision denying Fuller’s set-aside motion. The statement of decision stated: “The Judgment that the Court entered on July 20, 2005, does not award [Parker] any property that was not her[]s. It does not award [Parker] any property that [Fuller] ‘had prior to the marriage.’” In the statement of decision, the court found the “‘Palm Desert Property’ was not [Fuller’s] separate property, it was joint tenancy property.” The court found that Fuller knew of the default hearing and decided not to contest the default. The court also denied Fuller’s claim of extrinsic fraud.
On September 28, 2006, Fuller filed an OSC to “adjudicate unlitigated assets, clarify judgment, adjudicate Palm Desert Property.” In the OSC, Fuller requested: “That the Court clarify, determine and define pursuant to paragraph III B 1. on page 5 of the Judgment of Dissolution of Marriage filed July 20, 2005, the exact assets awarded to [Fuller] as stated therein as follows: ‘Any and all assets owned by Respondent, Everett O. Fuller, prior to marriage.’” Fuller also contended there was a conflict in the judgment of dissolution between the paragraph awarding him his separate property acquired before the marriage, and the paragraph awarding Parker ‘[a]ll of those miscellaneous items of jewelry . . . currently in her possession or under her control.” Fuller listed various assets he claimed to be his separate property and asked the court to determine those assets “are unlitigated.” In a supporting declaration, Fuller asserted Parker had various items of his separate property, including furniture, appliances, jewelry, artwork, and furnishings, and had refused to return that property to him. He reiterated the claim he had contributed a total of $47,000 of separate property toward paying down a mortgage on Parker’s separate real property.
On November 27, 2006, the trial court issued an order denying the OSC on the ground the relief requested was barred under res judicata or collateral estoppel. Fuller appealed from that order. He did not appeal from the order denying his motion to set aside the judgment.
Discussion
I. Appellate Jurisdiction
Is the order denying Fuller’s OSC appealable? Fuller’s opening brief does not include a statement explaining why that order is appealable, as California Rule of Court, rule 8.204(a)(2)(B) requires.
The September 26, 2006 order denying Fuller’s motion to set aside the judgment of dissolution apparently was appealable. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 16:299 (rev. #1, 2006).) Fuller did not appeal from that order; his notice of appeal identifies only the order “filed November 27, 2006” (the order denying his OSC) as being appealed. The order denying the OSC is a postjudgment order, and “[a] postjudgment order, such as the one here, which affects the judgment in some way or relates to its enforcement, is appealable so long as the appeal involves issues other than those decided by the judgment.” (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 497.) To preserve appellate jurisdiction, we will construe the order denying Fuller’s OSC only as affecting the judgment or relating to its enforcement, and not as involving any issues decided by the judgment.
II. The Merits
The judgment of dissolution is a final and conclusive adjudication of Fuller’s and Parker’s rights because Fuller did not appeal from it. (In re Marriage of Brown (1976) 15 Cal.3d 838, 851, fn. 13.) “The division of assets and liabilities cannot be modified after it has become final unless there is an explicit reservation of jurisdiction to do so.” (In re Marriage of Farrell (1985) 171 Cal.App.3d 695, 702.) Here, the trial court expressly retained jurisdiction only over the division of the property interests in the Palm Desert residence.
Once a judgment of dissolution becomes final, it can be set aside only by timely appeal, a motion pursuant to Code of Civil Procedure section 473, subdivision (b), or after the time for section 473 relief expires, by a set-aside motion pursuant to Family Code section 2121. (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 17:340 (rev. #1, 2005).) The grounds and time limits for a set-aside motion under section 2121 are contained in Family Code section 2122. Those grounds include actual fraud, perjury, duress, mental incapacity, mistake of law or fact (stipulated judgments only), and failure to comply with certain disclosure requirements. (Fam. Code, § 2122.)
In June 2006, Fuller moved to set aside the judgment of dissolution under Family Code section 2122 on the ground of fraud. On September 26, 2006, the trial court denied the motion and rejected Fuller’s claim of fraud.
Fuller did not appeal that ruling. Rather, on September 28, he filed his OSC to “adjudicate unlitigated assets, clarify Judgment, adjudicate Palm Desert Property.” In an attachment to the OSC, Fuller listed various assets he claimed to be his separate property and asked the court to determine those assets “are unlitigated.” Under Family Code section 2556, the trial court has continuing jurisdiction “to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding.” (Italics added.) Fuller did not allege that any community assets had not been adjudicated in the judgment of dissolution, and in denying Fuller’s motion to set aside, the trial court found the Palm Desert home was joint tenancy property. In other words, none of the property Fuller claimed to have been omitted from the judgment of dissolution was community property, and therefore none was not subject to Family Code section 2556.
In the OSC, Fuller also asked the trial court to “clarify, determine and define pursuant to Paragraph III B 1. on page 5 of the Judgment of Dissolution of Marriage filed July 20, 2005, the exact assets awarded to [Fuller] as stated therein as follows: ‘Any and all assets owned by . . . Fuller, prior to marriage.’” In his appellate brief, Fuller, asks, “[s]ince the Judgment fails to list, indicate or reference the specific items of separate property confirmed/awarded to Respondent/Appellant, how does he know what is his, especially when, as he alleges in his O[SC] filed September 28, 2006, it is [Parker] who has possession and control of his separate property?”
To answer that question, and grant Fuller’s request for clarification, the trial court would have had to adjudicate the issue whether each item of personal property listed in the attachments to the OSC were Fuller’s separate property and would have had to modify the judgment accordingly. Since the trial court already had denied Fuller’s set-aside motion, and none of the disputed property fell under Family Code section 2556, we doubt whether the trial court had jurisdiction to consider Fuller’s request. As noted above, the trial court retained jurisdiction over the Palm Desert property “to make such orders as may be necessary to accomplish the division of same between the parties.” On appeal, Fuller does not rely on the reservation of jurisdiction or assert the division of the Palm Desert property was not accomplished.
Even assuming the trial court did have jurisdiction to determine whether the items of personal property listed in the attachments to the OSC were Fuller’s separate property, the court did not err by denying Fuller’s request for clarification. In denying Fuller’s earlier motion to set aside the judgment, the trial court found that Fuller had been served with a request to enter default; that he and Parker talked about the terms of the proposed judgment; that Fuller knew the date, time and place of the default hearing; that he understood a default was being taken against him; and that he had decided not to contest the default.
Fuller could have contested the default hearing and proposed default judgment and sought characterization of and rights to the property listed in his OSC. He waited nearly a year after entry of the dissolution judgment to bring his set-aside motion and 14 months after entry of the dissolution judgment to bring his OSC. “‘“A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.”’” (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028.) Applying this rule to the record before us, we affirm the trial court’s order.
Disposition
The postjudgment order denying Fuller’s OSC filed September 28, 2006 is affirmed. In the interests of justice, no party may recover costs incurred on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.