Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County No. ND054254, John Chemeleski, Judge. Affirmed and remanded.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Appellant.
Law Offices of Sanborn & Sine and David M. Sine for Respondent.
CROSKEY, Acting P. J.
This is an appeal by the appellant, Tammy Sciotto (hereafter, wife) in a family law case wherein the court granted her petition for legal separation in a 13-year marriage. She and respondent, Frank Sciotto (hereafter, husband) entered into a marital settlement agreement (MSA) and the case was tried as an uncontested matter. Husband was not represented by an attorney. Judgment of legal separation was signed and filed on May 3, 2006 and notice by the clerk was mailed that day. Nine days later (May 12, 2006), the wife filed for a dissolution of the marriage.
A default judgment of dissolution of the parties’ marriage was signed and filed on October 20, 2006.
The filing of the petition for dissolution of the marriage prompted the husband to file a motion in the original family law case, by which he sought to set aside the default and default judgment and void the MSA. The motion was based on provisions in the Family Code. It was filed on June 28, 2006 and later taken off calendar. Then on April 25, 2007, husband filed an OSC seeking to modify child custody, visitation, support, and to set aside the default, default judgment and MSA.
Unless otherwise indicated, all statutory references herein are to the Family Code.
The gist of the husband’s motion and OSC was that the wife had deceived him into believing that the legal separation process, with its MSA that was one-sided and burdensome to husband, was a method of preserving their marriage and a way for him to show his good faith, when in reality, the wife was having an affair with someone whom she intended to marry. Indeed, just six days after she secured the judgment of legal separation, the wife filed for a dissolution of her marriage to husband, obtained the judgment of dissolution, and married the person with whom she had been having an affair.
The issue in this case is whether the trial court abused its discretion when it set aside the default in the legal separation case, and partially set aside the default judgment and MSA. Specifically, the court set aside the provisions in the judgment and MSA regarding support and property division, and reserved the right to make a retroactive order on those matters back to the date the wife’s petition for legal separation was filed. The court left intact the provisions regarding custody, visitation and legal separation, and directed the husband to file a response to the wife’s petition for legal separation. The court found that the husband was under an emotional strain amounting to duress regarding “some previously wrong decisions” and an emotional strain of attempting to save his marriage, and further found the wife “gained an unfair advantage even if it wasn’t by any action that she took, considering that the [husband] was by the agreement putting himself under an onerous support obligation and considering he was giving up rights to have the court determine the validity of any previous transmutations.” The count found the husband made a mistake in his expectations that these actions would either save his marriage or vindicate him in some way.”
Our review of the relevant Family Code statutes, case law, and the appellate record in this case, convinces us the trial court did not abuse its discretion in granting husband relief. We will therefore affirm the order from which wife has appealed and remand the case for further proceedings.
Section 2120 provides: “The Legislature finds and declares the following:
BACKGROUND OF THE CASE
1. The Parties
The wife filed her petition for legal separation on December 8, 2005. The parties were married in August 1992 and the petition for legal separation states that they separated on October 1, 2005. There are two children of the marriage (the children), who, at the time wife filed for legal separation, were 12 years old (the daughter) and 10 years old (the son), respectively. The income and expense declaration filed by wife with her request to enter husband’s default in the legal separation case states that (1) wife has a real estate license, (2) she was then currently employed as a senior loan officer at a mortgage company, (3) she had a gross monthly income from that job of $14,000, (4) husband’s estimated gross monthly income was $15,000, and (5) there was rental property monthly income of $1,291. Wife stated her average monthly expenses amounted to $8,551. She also stated the children’s private school monthly expenses were $8,500.
2. The MSA
Under the terms of the MSA, the parties agreed to share legal custody of the children with wife retaining primary physical custody. Husband was to pay $10,000 a month for child support ($2,500 per child every other week), for 13 years (until the daughter was 25 years old and the son was 23 years old). However, if and when the daughter was no longer residing with the wife during that 13-year period, then the support for the son would increase to $3,500 every week. That was the only provision for modification of child support in the MSA. Husband was also to maintain the children on his medical, dental and orthodontic insurance, and to pay all health care costs of the minors that were not reimbursed. The MSA states that under this plan of child support, “the children’s needs will be adequately provided for.”
Under the terms of the MSA, no spousal support would ever be provided to the husband. Wife would receive spousal support in the amount of 30% of the husband’s yearly income that exceeds $400,000 (whether gross or net income is not stated). Also, if the daughter were to no longer reside with the wife “prior to the termination of thirteen years from the date of the [MSA], then husband would pay wife $1,500 “for the remainder of the thirteen years, if wife has not remarried.” The MSA does not state if the $1,500 was payable weekly, monthly, yearly, or by some other timing. Moreover, the court would reserve jurisdiction until either party died, wife remarried, “or modification or termination by further court order, whichever occurs first, to order such support payable to Wife on a proper showing of a change of circumstances.”
The MSA states the parties had no community debts. It provides that wife would have, as her sole and separate property, the family home in Long Beach, as well as a tri-plex in Long Beach, and it recites that husband would not be entitled to “an offset, credit, or claim for reimbursement for said distribution.”
Husband would have as his sole and separate property the community’s interest in his retirement plan and his 401k plan; and wife would have as her sole and separate property her IRA, SEP IRA, and the retirement accounts listed in her name. Regarding the parties’ vehicles, husband would keep a 2002 Chevrolet Tahoe and a mobile home coach. Wife would kept a 2005 Mercedes Benz CLK320 and a 1999 Mercedes Benz E320. The MSA recites that husband is required to pay the “liability of the 2005 Mercedes Benz” but the MSA does not explain what “liability” means (e.g., insurance, car payments, etc.). Wife would have the funds in a bank account, and she would maintain husband’s life insurance policy, with her as the beneficiary, for the benefit of the minor children. The parties would be responsible for paying the obligations secured by the property they received under the terms of the MSA.
The MSA recites: “The Parties acknowledge the division of assets and debts is unequal, but each wishes to abide by the division set forth to fully and finally resolve this matter.” The MSA also recites that husband was advised of his right to have counsel and he “knowingly and intelligently waive his right to counsel.” Additionally, the MSA recites that the parties waived, among other things, (1) their rights under section 2122, subdivision (e) (see fn. 3, ante); (2) their rights to claim reimbursement credit for payment of community debts since date of separation and for the other party’s use of community assets since the date of separation, and (3) husband’s right to a final declaration of disclosure (§ 2105).
All of the pages of the MSA, except for the signature page, have the initials “FS” and “TAS.”
The judgment of legal separation granted to wife provides that the custody, visitation, child and spousal support, and property division are ordered as set forth in the MSA.
3. Husband’s June 28, 2006 Motion
As noted above, on June 28, 2006, husband filed a motion asking that the default and default judgment be set aside and the MSA voided. To support the motion, husband’s attorney cited Code of Civil Procedure section 473 and various provisions of the Family Code (including the relevant provisions set out in footnote 3, ante.) In his supporting declaration, husband stated that he and wife were in marriage counseling and in March 2005, he “admitted to an indiscretion on my part several years earlier.” With the disclosure of that indiscretion, “wife expressed her insecurity in [the] marriage” and told husband her fear that he would leave her. To express his love for wife, lesson her insecurities, and demonstrate his desire for their marriage to continue, he quitclaimed the family home and the triplex to her. That was done at wife’s suggestion. Husband believed that since they were still married and living in the family home, and paying the mortgages and expenses on the properties, it would make no difference in whose name the properties were in and he was giving wife control but not ownership of the properties.
Husband and wife continued to see the marriage counselor twice a month through January 2006. (The MSA was signed at the end of January 2006.) During one of the counseling sessions, wife suggested that perhaps they should separate on a trial basis, and so to accommodate wife, husband moved out of the family home in October 2005 and rented an apartment. He continued to deposit his paychecks into their joint checking account. He did these things to relieve wife’s mistrust and insecurities, including her mistrust regarding their finances. The idea of a post-nuptial agreement came up and he called law firms to see about drawing up such an agreement. An appointment was made with a law firm for the first week of December 2005 and the parties met with an associate attorney there. Reconciliation and the post-nuptial agreement were discussed, and wife brought up the idea of a legal separation, which had not been discussed before. Because the parties were already living separately, husband did not know what difference a legal separation would make. The attorney told husband that she could not represent both him and wife, and since wife wanted a legal separation, she would represent the wife. The attorney did not discuss what the legal separation would mean, what a MSA is, nor whether there was any conflict of interest. He was not advised to seek counsel for himself, nor told that instead of a post-nuptial agreement, an MSA would be drawn up.
The marriage counselor the parties were seeing told the parties to think of a legal separation as part of the trial separation they had already begun. Ever since April 2005, the parties had been working on the issue of reconciliation, and after husband moved out of the family home and the issue of legal separation was raised, the parties continued to discuss those matters as part of an overall plan of reconciliation. Because he thought that the legal separation was part of their trial separation and the attorney would draw up a post-nuptial agreement, he never bothered to file a response to the petition for legal separation that was served on him.
When he was advised by wife that the document prepared by the attorney needed to be signed, he and wife went to a notary and signed it, however, he did not read it before he signed it. Wife took the document after they signed it. He believed that the document was part of his and wife’s plan for reconciliation and part of their trial separation, and he believed that if wife ever filed to have their marriage dissolved, they would have to start the process all over again, including dividing their property and having another MSA.
He was never provided with a preliminary disclosure form and final disclosure form, either for himself or for wife. (§§ 2104, 2105.) He was not aware when he signed the MSA that he was waiving his right to those disclosures, nor even what they are. Although the court file contains a Stipulation and Waiver of Final Declaration of Disclosure form, he does not recall signing it and the signature on the form that purports to be his is not his. He recognizes the signature as being his wife signing his name.
At a hearing on husband’s OSC to obtain relief from the default and judgment of legal separation and the MSA, the court stated that if there was a failure to comply with the disclosure requirements, the court could not find that husband was unaware of “the nature of the property” and thus any failure to provide disclosure statements/a full disclosure did not affect the result in this case.
Husband stated in his declaration that he makes about $14,000 a month, it is all commissions, and after taxes his take home pay is less than $10,000 a month, yet the child support he is required by MSA to pay is more than his take home pay. Moreover, the MSA requires him to make these support payments for 13 years which means that one child will be benefitted longer than the other child, which he did not intend. Nor was he informed when his legal responsibilities for support actually end. Further, the spousal support provisions only benefit wife, not him. Moreover, the MSA gives wife both pieces of real property, two of the three vehicles, and it requires him to pay the “liability” of the 2005 Mercedes Benz but does not explain what that means. Husband stated that the value of the property received by wife under the MSA is approximately $1.4 million and the value received by him is approximately $55,000, which demonstrates that his intent all along was to keep their marriage intact and permit wife to feel more secure by transferring property to her within the confines of a marriage.
In late February 2006, a month after the parties signed the MSA, he became aware that despite the parties’ marriage counseling, wife had been romantically involved with another man. Then in April 2006 he became aware that this other man was also spending time around the parties’ children; husband’s reaction to this circumstance resulted in the issuance of a temporary restraining order against him requested by wife. Around that time, he realized that when wife was seeking control of the property during the period of supposed reconciliation, allegedly to calm her feelings of insecurity, what she was really doing was defrauding him and planning to have their marriage dissolved. Indeed, the paperwork for the dissolution of their marriage was started as early as April 2006.
4. Husband’s April 25, 2007 Declaration
As noted above, husband’s June 28, 2006 motion for relief was taken off calendar and he filed an OSC on April 25, 2007, seeking the same relief. To support the OSC, he relied on his earlier declaration and also submitted a supplemental declaration. In his supplemental declaration, he stated he had taken his original motion off calendar because wife agreed that he could pay whatever child support he could afford, since he could not afford the amount stated in the MSA. He was also influenced by his two children who emotionally asked him to not “take our family to court, and if I was going to help support them by paying bills and living expenses.”
He emphasized that during the events that he described in his initial declaration, he was under emotional stress and duress. He stated that when he had his affair, he realized that probably ruined wife’s trust in him, and so he was willing to do anything to save his marriage, including giving wife control of their assets and being willing to pay well over $10,000 a month in child support. The emotional strain trying to save his marriage caused him to agree to things about which he was not aware of the legal consequences. He did not consult with an attorney regarding the legal separation case nor the dissolution of marriage case, and because of his feelings of guilt over his extramarital affair, he did anything he could to preserve his marriage. He stated the family home was valued at $900,000, the triplex at $700,000 and there was $300,000 in the marital accounts, of which he received $100,000.
Husband also requested that the court modify the physical custody provisions in the MSA so that each party would have 50% custody because the parties live only three blocks from each other and he has a “superb” relationship with the children. Additionally, he stated he had a sharp drop in real estate commissions in the past year and he makes less money than wife, and he asked that the parties be ordered to each claim one of the children as a deduction on their tax returns, and each claim 50% of the property taxes and mortgage on the family home. In her declaration, wife asserted that the custody arrangement in the MSA did not, and should not, be modified and she gave reasons for her position. However, she did not address the tax return issues.
3. Wife’s Declaration Filed in Support of Her Opposition to the OSC
In her declaration which she filed in support of her opposition to the OSC, wife asserted that husband was not being truthful regarding the events of the MSA. She asserted he received “a fair proportion of our assets” and the only reason he is asserting the division was unfair is because “he does not place any value on his business which he received in the division of property.” Wife disputed that husband was kept in the dark regarding the events of the MSA. She stated husband chose the law firm that the parties consulted, and “everything was explained to us in great detail.” Wife stated she was sure that if the attorney who represented wife in the legal separation matter were asked, the attorney “would testify that she advised husband strongly to get a lawyer and that he was repeatedly told to review the agreement.”
Under the heading “Division of Corporations,” the MSA states: “The Exchange and Prime Notary are the sole and separate property of [husband.] California Reserve is the sole and separate property of [wife]. Both parties will cooperate to make all necessary changes to handle necessary changes [sic].”
Wife stated the MSA “reflects our actual intentions and desires at the time it was made.” She asserted that husband read over the agreement carefully.” She opined that because of husband’s education and professional experience, he would never sign a legal document without reading it first. She disputed husband’s statement that he did not receive disclosure statements. She stated that although the documents were prepared by others on her behalf, she was “careful about serving every required document.”
As noted above, according to wife’s income and expense declaration that she filed with her request to enter husband’s default in the legal separation matter, husband’s estimated gross monthly income was $15,000. That is $180,000 a year. In her declaration, wife stated husband “was earning in excess of $460,000 annually at the time he quit his job and he could do so again at any time he desires to.” She asserted he “is deliberately underemployed at this time . . . and [t]he support he agreed to pay is reasonable and consistent with his earnings and earning potential.” She asserted husband agreed to provide child support to the minors well beyond their 18th birthday because he supported the idea that it is important to provide for the minors through college. Wife stated that husband had not paid any support “for many months know [sic] even though he clearly could afford to pay some portion of the support [and h]e is now 13 months in arrears.” She stated she went to the county’s support enforcement agency to enforce the support order. She also stated husband has refused to pay for one of the minor’s orthodontia even though under the MSA he is responsible for making the payments.
DISCUSSION
1. Standard of Review
We review the trial court’s order granting husband relief under an abuse of discretion standard. It is the burden of the person challenging the trial court’s decision to establish abuse of discretion. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682-683; In re Marriage of Varner, supra, 55 Cal.App.4th at p.138.)
2. General Statutory Provisions
Spouses seeking relief from a family law judgment have procedural options. They can file a motion under Code of Civil Procedure section 473 if they meet that statute’s six-month time limit for seeking relief. Section 2121 provides that for spouses who have not met that six-month limit, relief can be obtained “based on the grounds, and within the time limits, provided in this chapter.” (See fn.3, ante.) Section 2122 sets out the exclusive grounds to set aside a judgment under the Family Code. (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1344.)
Here, the trial court found that two of those grounds apply to this case: duress (§ 2122, subd. (c), and mistake (§ 2122, subd. (e). Mistakes, whether mutual or unilateral, and whether mistakes of law or fact, are grounds for relief when the relief sought pertains to stipulated or uncontested judgments.
The court did not find applicable subdivision (a) of section 2122, which encompasses the inherent equity power that courts have to grant relief. Under their inherent equity powers, courts have the power to grant relief “where there has been ‘extrinsic’ fraud or mistake.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855; accord, Billings v. Edwards (1981) 120 Cal.App.3d 238, 245 [“ ‘Even though a party seeking relief from default bases his motion solely on section 473 of the Code of Civil Procedure, the court has power to treat the motion as one for equitable relief.’ ”]; In re Marriage of Varner (1997) 55 Cal.App.4th 128139-140, citing In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068.) Section 2128 provides that nothing in the Family Code chapter on relief from judgment “is intended to restrict a family law court from acting as a court of equity.” Subdivision (a) of section 2122 encompasses the inherent equity power courts have to grant relief from extrinsic fraud, which subdivision (a) denominates “actual fraud.” (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 830-831.)
3. Trial Court’s Analysis of Husband’s Claim of Duress and Mistake
The Family Code provisions for granting relief from family court judgments demonstrate the Legislature’s concerned about divisions of property and awards of support that are inequitable when they are made because of nondisclosure or other misconduct of one of the parties. (§§ 2120, subds. (b) & (c); 2122.) The statutory grounds for granting relief (§ 2122) are broad. However, section 2123 specifically states that a judgment may not 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.” Here, the trial court found something more—duress and mistake. In connection therewith, the court raised the provisions in section 721, which states in relevant part: “Except as provided in [certain sections of the Probate Code], in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”
Regarding the question whether there was mistake on the part of husband with respect to the MSA, the court stated husband knew what he was doing when he signed the MSA insofar as he knew he was transferring assets to wife and agreeing to make support payments and he “generally knew the effect of [the MSA].” However, the court stated husband “was under an emotional strain resulting from perhaps some feelings of guilt in having made some previously wrong decisions and an emotional strain of attempting to make an effort to save his marriage.” The court found husband was under duress, and further found husband “made a mistake in his expectations” that if he accepted “an onerous support obligation” and gave up “rights to have the court determine the validity of any previous transmutations,” “these actions would either save his marriage or vindicate him in some way.” The court further found that the MSA and judgment are “so one sided and so onerous” that the judgment, default and MSA should be set aside except for the judgment of legal separation and the custody and visitation orders. And the court found there was an unfair advantage stemming from the parties’ marital relationship even if it wasn’t by any action that wife took.
4. There Was No Abuse of Discretion in Granting Husband Relief
Wife is adamant that husband knew the contents of the MSA and willingly signed it. Wife notes that the trial court found that husband “knew what he was doing as far as he was signing documents that transferred certain assets to [wife] and that required him to make certain payments for support.” However, that finding makes husband’s case for duress and mistake even more sound than if he had simply signed the MSA because wife asked him to. One can infer that for husband to knowingly sign an agreement that on its face is so very one-sided and burdensome to husband, he must have had a reason for doing so. As he explained in his declaration and as the trial court found, he was under stress (duress) to save his marriage and he repeatedly did the things that wife asked him to do regarding their property and living arrangement in order to accomplish that goal. As it turned out, signing the MSA actually facilitated the dissolution of his marriage.
“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 Stevenot, supra, 154 Cal.App.3d at p.1073, fn. 6.) Duress may result from “ ‘threats, importunity, or any species of mental coercion’.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 74.)
Further, there is substantial evidence to support the trial court’s finding that husband was operating under a mistake of fact, to wit, that responding positively to wife’s many requests was a way to save his marriage. As it turned out, there were other mistakes of fact—that wife was not interested in anyone else, that wife was working with him to save their marriage, and that wife did not want to have the marriage dissolved.
There is evidence that husband went to marriage counseling for a long time, and acquiesced to every request made by wife, thinking that doing those things would help save his marriage. The requests came in steps. Husband stated in his declarations that with the disclosure of husband’s marital indiscretion, wife expressed her insecurity in their marriage and told husband she feared he would leave her. To express his love for wife, lesson her asserted insecurities, and demonstrate his desire for their marriage to continue, he quitclaimed the family home and the triplex to her. That was done at wife’s suggestion. Husband stated he believed that since they were still married and living in the family home, and paying the mortgages and expenses on the properties, it would make no difference in whose name the properties were in, and he believed he was giving wife control but not ownership of the properties.
Wife’s next step was to suggest that perhaps they should separate on a trial basis, and so to accommodate wife, husband moved out of the family home in October 2005 and rented an apartment. He continued to deposit his paychecks into their joint checking account. He did these things to relieve wife’s stated mistrust and insecurities, including her mistrust regarding their finances. The following step was the idea of a post-nuptial agreement and he called law firms to see about drawing up such an agreement. When he and wife went to see an attorney about the post-nuptial agreement wife brought up the next step—a legal separation, which had not been discussed before. Husband stated in his declaration that because he and wife were already living separately, he did not know what difference a legal separation would make. Husband stated that the marriage counselor the parties were seeing told him to think of a legal separation as part of the trial separation they had already begun. Ever since April 2005, husband had been working on the issue of reconciliation, and after husband moved out of the family home and the issue of legal separation was raised, the parties continued to discuss those matters as part of an overall plan of reconciliation. Because he thought that the legal separation was part of their trial separation and the attorney would draw up a post-nuptial agreement, he never bothered to file a response to the petition for legal separation that was served on him.
After that came the MSA and the judgment of legal separation. Shortly thereafter, with the MSA in place under the legal separation, wife filed to have their marriage dissolved, and the provisions for support and division of community property were already an accomplished fact. Given how this unfolded, it is not surprising that the trial court did not make a finding that husband should have foreseen the dissolution. Further, it defies reason to think that husband would agree to wife’s many requests, including signing on to a MSA so apparently burdensome to him, if he did not think there was something in it for him, namely the rescue of his marriage and the restoration of his family life.
Courts have held that a failure of one spouse to disclose the existence or value of a community asset will support a motion to set aside a judgment on the ground of mistake under subdivision (e) of section 2122. (In re Marriage of Brewer &Federici, supra, 93 Cal.App.4th at p.1345; In re Marriage of Varner, supra, 55 Cal.App.4th at p. 144.) What then of a spouse who operates not under the misapprehension of the extent or value of the community’s assets but rather under the misapprehension that his acquiescence to a wife’s string of requests regarding transfers of property, living arrangements, legal separation, and community property and support provisions in a written agreement were requests made for the purpose of saving the marriage. The mistake is as legitimate as a mistake of the existence or value of an asset. Moreover, the strain of seeing a marriage continue to deteriorate despite the many months of marriage counseling and the repeated agreements to wife’s requests for adjustments in their living arrangement, manner of holding their real properties, etc, constitutes duress under subdivision (c) of section 2122.
Additionally, “[t]he formation of a marital settlement agreement is not an ordinary business transaction, resulting from an arm’s-length negotiation between adversaries. Rather, it is the result of negotiations between fiduciaries required to openly share information. (Fam. Code, §§ 721, subd. (b), 1100, subd. (e), 2100, subds. (b) & (c).)” (In re Marriage of Brewer & Federici, supra, 93 Cal.App.4th at p. 1344.) The parties’ MSA was signed on January 30, 2006. Husband stated in his declaration that in February 2006 he discovered that despite the parties’ marriage counseling and plans of reconciliation, wife had been romantically involved with another man. That is the kind of information a spouse is entitled to know prior to giving away substantially all of his or her community interests and subjecting himself or herself to a child support burden significantly beyond his or her income, particularly when it is done in the hope of saving the marriage and the other spouse was only pretending to go along with the anticipated reconciliation. In transactions between themselves, spouses are fiduciaries who have duties of the highest good faith and fair dealing towards each other. (§ 721, subd. (b).) Section 2120 states that respect to division of property and provision for support of children and spouses, those matters should be “freely and knowingly made.” (Id., subd. (a).) The Legislature recognized that sometimes inequitable property division or support results from “nondisclosure or other misconduct of one of the parties,” and the public policy of finality of judgments then has to be balanced against the public’s interest in proper division of community property, sufficient support awards, and deterrence of misconduct.
Finally, we come to the question whether the facts that husband asserted as grounds for relief “materially affected the original outcome and . . . the moving party would materially benefit from the granting of the relief.” (§ 2121.) Wife asserts that husband never argued to the trial court that he would materially benefit from having his requested relief granted. However, assuming that husband did not argue the point, there was no need to argue what is obvious. Certainly there is very substantial evidence to support findings (express and implied) in favor of husband on those matters. Indeed, at a subsequent hearing, the court, using the parties’ then current incomes, issued a temporary support order, pending trial, in which it reduced husband’s child support to $473 per month. And, what appears on its face to be a very one-sided division of property was set aside by the court, thus enabling husband to litigate the character of property (separate or community) and its division.
5. This Case Is Not Prohibited by California’s Anti-Heart Balm Statutes
We reject wife’s argument that this case is the equivalent of a “breach of promise” case made un-actionable by California’s anti-heart balm statutes (Civ. Code, §§ 43.4 & 43.5). This is not a civil suit for fraud regarding statements made by a spouse primarily before entering into the marriage, as occurred in Askew v. Askew (1994) 22 Cal.App.4th 942, where the wife filed for dissolution of the marriage and the husband sued her in a separate civil lawsuit for fraud. The husband in the instant case has not filed a separate civil suit for deceit to punish wife and obtain a damages recovery from her. He has moved to have the judgment of legal separation set aside because of duress in agreeing to the MSA and his mistake that one of its purposes was to facilitate keeping the marriage together. He is seeking to have a trial, in the family law case, on the issues common to family law cases—support, and the character and division of property—and he is proceeding under the parameters of section 2122.
DISPOSITION
The order from which wife has appealed is affirmed and the matter is remanded for further proceedings. Costs on appeal to husband.
We Concur, KITCHING, J., ALDRICH, J.
“(a) The State of California has a strong policy of ensuring the division of community and quasi-community property in the dissolution of a marriage as set forth in Division 7 (commencing with Section 2500), and of providing for fair and sufficient child and spousal support awards. These policy goals can only be implemented with full disclosure of community, quasi-community, and separate assets, liabilities, income, and expenses, as provided in Chapter 9 (commencing with Section 2100), and decisions freely and knowingly made.
(b) It occasionally happens that the division of property or the award of support, whether made as a result of agreement or trial, is inequitable when made due to the nondisclosure or other misconduct of one of the parties.
“(c) The public policy of assuring finality of judgments must be balanced against the public interest in ensuring proper division of marital property, in ensuring sufficient support awards, and in deterring misconduct.
“(d) The law governing the circumstances under which a judgment can be set aside, after the time for relief under Section 473 of the Code of Civil Procedure has passed, has been the subject of considerable confusion which has led to increased litigation and unpredictable and inconsistent decisions at the trial and appellate levels.”
Section 2121 provides:
“(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter.
“(b) In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”
Section 2122 provides:
“The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:
“(a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.
“(b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.
“(c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.
“(d) Mental incapacity. An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.
“(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.
“(f) Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.”
Section 2123 provides: “Notwithstanding any other provision of this chapter, or any other law, a judgment may not 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.”
Section 2128 provides:
“(a) Nothing in this chapter prohibits a party from seeking relief under Section 2556.
“(b) Nothing in this chapter changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment.
“(c) Nothing in this chapter is intended to restrict a family law court from acting as a court of equity.
“(d) Nothing in this chapter is intended to limit existing law with respect to the modification or enforcement of support orders.
“(e) Nothing in this chapter affects the rights of a bona fide lessee, purchaser, or encumbrancer for value of real property.
Wife’s assertion here that husband “did not show any particular susceptibility to [her] influence” is belied by the fact that he repeated assented to her requests that gradually but steadily separated him from his family and his assets. Further, although the trial court stated that husband was undergoing emotional stress in trying to save his marriage and “[wife] gained an unfair advantage even if it wasn’t by any action that she took,” (italics supplied), we do not find that by its use of this italicized language the court was saying that wife did nothing to cause the duress. Rather, we find that the court was reiterating what it had said earlier—that the mere marital relationship between spouses can cause one spouse to act in a certain way. The court made that comment about marital relationships in speaking about undue influence, and made it again later in speaking about unfair advantage. Here, it was husband’s desire to preserve his relationship with wife that caused him to acquiesce to her “suggestions” regarding how they should conduct their lives and handle their property.