Opinion
2d Civil No. B223880
10-19-2011
In re Marriage of CORD E.and DERETIA L. MASSIE. CORD E. MASSIE, Respondent, v. DERETIA L. MASSIE, Appellant.
Deretia L. Massie, in pro. per., for Appellant. Cord Massie, in pro. per., for Respondent
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SD037997)
(Ventura County)
Deretia L. Massie appeals from judgment of dissolution in which the court enforced the terms of a partial settlement agreement and, in a ruling on a reserved issue, required Cord E. Massie to provide Deretia with six months of health insurance coverage. Both Deretia and Cord proceed in propria persona. Deretia contends that the trial court abused its discretion when it denied her motion for change of venue and when it denied her motion to continue trial. She also contends that the settlement agreement is unenforceable because its terms were unconscionable and it was obtained through fraud. We affirm.
We will refer to the parties by their first names for clarity. We intend no disrespect.
FACTUAL AND PROCEDURAL BACKGROUND
Cord and Deretia were married in 2001 and separated in either 2007 or 2008. They did not have children and did not own a home. Cord worked as a glazier and Deretia was not employed during the marriage. According to Cord, she derived some income during the marriage from buying and selling goods, and had worked before the marriage.
Motion for Change of Venue
Cord filed a petition for dissolution in Simi Valley in September of 2008. In December, Deretia moved to change venue to Los Angeles, where she lived. The record on appeal does not include Deretia's motion. We glean her arguments from Cord's response and from the hearing transcript. She argued that the venue was improper because Cord had not lived in Ventura County for three months prior to filing, and that the venue was inconvenient because Deretia's health prevented her from traveling. In response, Cord declared that Simi Valley became his permanent residence about ten months before he filed, and that he rented an apartment there in November 2007. He also declared that Deretia's health problems were minor. The court requested a declaration or other information from a medical professional regarding Deretia's condition, but she did not provide it. The court denied the motion without prejudice to a renewed motion supported by evidence of her medical condition. Deretia did not renew her motion.
Temporary Support
Deretia requested temporary spousal support. The court set the matter for hearing May 11, 2009, because Deretia requested additional time to evaluate Cord's income and expense declaration. In February, the court granted Deretia's request to advance the support hearing from May to March 5, because she reported that she would be having surgery on March 16.
On March 5, the court granted temporary monthly support to Deretia in the amount of $1,547, based on Cord's average $4,800 monthly income over the previous 12 months. For purposes of temporary support, the court accepted Deretia's representation that she was unable to work due to her medical condition. The court awarded support arrearages to Deretia from January 1, to be satisfied through $100 monthly payments. Cord was represented by counsel and Deretia was not. The court granted interim attorney's fees to Deretia in the amount of $2,500 so that she could retain counsel, to be paid in monthly installments of $100.
Mandatory Settlement Conferences and Discovery Concerning Medical Condition
At the March 5 support hearing, Deretia asked the court to continue an April 7 mandatory settlement conference until after June because, she said, her surgery had been rescheduled. The court continued it to May 12.
Deretia did not retain counsel. She advised the court that she could not find an attorney who would accept the monthly payments. Cord retained a new attorney, who served Deretia with form interrogatories concerning her medical condition, her treatment, and her employment history, among other things. Deretia did not respond to the interrogatories. She later declared that she did not receive them.
Deretia did not appear for the March 12 mandatory settlement conference. The court continued it to June 10. Deretia later declared that she underwent surgical removal of fibroid tumors on May 7, but she did not provide that information at the time.
Deretia did not appear for the continued mandatory settlement conference on June 10. The court set trial for October 1, 2009. At the hearing, Cord's counsel reported that Deretia had called on June 4, after the close of business, to request a continuance so she could recover from surgery, but would not provide a letter from her doctor or other documentation concerning the surgery.
In the June 4 telephone conversation between Deretia and Cord's counsel, counsel asked Deretia for her interrogatory responses. Deretia said she had not received the interrogatories. She provided another address. Counsel re-served the interrogatories in June, but Deretia did not respond.
Cord moved to compel responses to the interrogatories. The court ordered responses without objections by September 1 and awarded Cord $1,500 in sanctions. Deretia said she was still healing from surgery, and would give medical information to the court, but she did not want Cord or an acquaintance of his to have it. The court explained to Deretia that she had tendered her medical condition as an issue in the case and must give the information to Cord.
Deretia responded to the interrogatories. She said she could not work because of "bodily injury from car accident in 6/07 approximately" involving "unknown parties" with unknown addresses, telephone numbers and lawyers. She provided no information about her particular injuries, condition, treatment, or medical providers, except to identify one physical therapist that she had seen on dates she could not remember. There was no information about a surgery.
Cord moved for sanctions for failure to comply with the discovery order. On the day of the hearing, two weeks before trial, Deretia filed supplemental responses with more details of her 2007 treatment, but no information about a surgery in 2009. The court took Cord's request for evidentiary sanctions under submission. Three days later, Deretia filed further responses in which she declared that she would only provide information about her surgery to the court in chambers.
Trial and Settlement
The parties appeared for trial on October 1. Deretia asked the court to reconsider the $1,500 discovery sanction order. She filed medical records to demonstrate that she had a surgery on May 7 to remove fibroid tumors, and that the surgery was initially scheduled for March 16, but rescheduled by the surgeon's office. Before the court ruled on any motions, Deretia asked for time to discuss settlement, which the court granted.
The parties reached a partial settlement. They were unable to resolve the issue of medical insurance coverage, because they did not know whether Cord would be able to keep Deretia on his policy after marital status was terminated. She had been on a policy provided by his employer, at no extra expense to him, and they hoped to continue this arrangement for six months. They recited the remaining terms on the record. Deretia expressed several times on the record that she had only agreed because she understood she would receive medical insurance for six months and would be able to continue treatment with her providers.
The recited partial settlement terms included one further year of spousal support to Deretia; waiver of support arrearages; waiver of the $1,500 discovery sanction against Deretia; withdrawal of a pending contempt charge against Cord for nonpayment of support; and division of personal property pursuant to which Cord would receive his retirement and 401K accounts, among other things, and Deretia would receive their newer, financed vehicle, but would have to return it to Cord if she did not obtain substitute financing by January 1, 2010. The court reserved judgment on the question of insurance coverage so that the parties could determine whether Cord could keep Deretia on his policy notwithstanding termination of marital status.
One week later, the court held a status conference concerning insurance coverage. Cord's counsel reported that he did have a duty to notify his union of the dissolution within a reasonable time, and he planned to report it in three months. Cobra was available to Deretia for 18 months, but would require monthly payments. The court took the insurance issue under submission. Also at that hearing, Deretia was served with the proposed judgment on the partial settlement. The court ordered Deretia to make any objections within five days.
Two weeks later, Deretia filed 29 pages of handwritten objections to the judgment. She declared, among other things, that she had made an appointment with an attorney who would have helped her prepare objections, but the attorney canceled because Cord's counsel told him judgment had already been entered and it was too late to object. About a week later, Deretia filed amended objections in which she reported that Cord's employer told her there was no record of him working there any longer. She requested a trial.
In December, the court issued a ruling on the reserved insurance issue. It required Cord to provide Deretia with medical insurance for six months from October 1, either through his employer or by paying the premiums for a substantially similar policy. The court considered Deretia's untimely objections and, in response, awarded some previously unallocated items of personal property to her. The court also restated the terms of the partial settlement. Formal judgment was entered on this December order on February 10, 2010.
Motions for New Trial and Post Judgment Proceedings
On December 28, 2009, Deretia moved for a new trial on the grounds that Cord had breached the settlement agreement because her health insurance had been terminated, and that counsel negotiated unfairly because counsel knew the employer was struggling financially and coverage would be terminated. She did not offer evidence that counsel knew this. Cord, no longer represented by counsel, responded that his employer had run out of money and terminated employee benefits, including the insurance policy, without any notice to employees. Upon discovery, the union placed a lien on the job. Cord declared that he had been laid off from his job on December 2 and was presently looking for work. By the time of the hearing, Deretia's coverage had been reinstated so that she would be covered through May 31, 2010.
Deretia was not present at the hearing on her motion for new trial. The court denied the motion, finding there was no factual or legal basis to grant a new trial. Deretia had checked in before the hearing, left, and then returned to the courtroom after the hearing to file another motion for new trial. Her second motion asserted that Cord knew at the time of the settlement, and failed to disclose, that his employer was having financial difficulties, among other things. The court denied the motion without further hearing. Deretia also filed a series of ex parte applications for which she did not appear.
Deretia did not obtain substitute financing for the financed vehicle. The court ordered Deretia to deliver it to Cord. When she did not return it, the court issued a writ of possession. The court issued a private place order on April 6, permitting the sheriff to enter Deretia's residence to retrieve the key to the vehicle. The court denied Deretia's third motion to vacate judgment and for a new trial on April 12. On April 16, Deretia filed notice of appeal.
DISCUSSION
Motion for Change of Venue
Deretia contends that her motion to change venue should have been granted because Cord had resided in Ventura County for fewer than three months (Code Civ. Proc., § 395, subd. (a)) and to promote her convenience because she was medically unable to attend court in Ventura. (§ 397, subd. (c).) Deretia has waived the contention on appeal because she has not provided a sufficient record; she omitted her moving papers. Moreover, her contentions are without merit. We will disturb a trial court's determination on a motion for change of venue only for abuse of discretion. (Forster v. Superior Court (1992) 11 Cal.App.4th 782, 787.) There was no abuse of discretion here. Cord declared that he had lived in Ventura County for almost a year before he filed the petition. Deretia disagreed, but when a motion for change of venue is presented on competing affidavits, those in favor of the prevailing party must be considered as true, and the facts stated therein must be considered established. (Friedman Bag Co. v. Shrier (1961) 194 Cal.App.2d 561, 565.) Deretia's claim that she was medically unable to attend court in Ventura was not supported by any competent medical evidence.
Motion to Continue Trial
Deretia contends that the court should have continued trial because she demonstrated good cause. No motion to continue trial is contained in the clerk's record or reflected in the docket or reporter's transcripts. Deretia's motion to continue the April 7, 2009, mandatory settlement conference was granted.
Enforceability of Settlement
We first reject Deretia's contention that the settlement agreement is not enforceable because there was no meeting of the minds regarding insurance coverage. The parties stated their agreement to all the essential terms on the record. Deretia contends that she expected insurance coverage for six months, and the judgment on reserved issues was consistent with her expectation. The judgment required Cord to provide her with substantially similar insurance coverage for six months. Any failure to perform raises an issue of enforcement, not enforceability.
We also reject Deretia's contention that the agreement was unenforceable because it was obtained through fraud or was unconscionable. The record contains no competent evidence to support Deretia's suspicion that Cord or his counsel knew that his employer would run out of money and terminate benefits. Neither did she establish that Cord or his counsel had any duty to disclose such information to Deretia during settlement negotiations.
Denial of Motions for New Trial
A trial court's decision to grant or deny a motion for new trial rests so completely within the court's discretion and its action will not be disturbed unless a manifest abuse of discretion clearly appears. (Romero v. Riggs (1994) 24 Cal.App.4th 117, 121.) Its decision retains "a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse." (Fountain Valley Chateau Blanc Homeowner's Assn.' v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) Deretia has not demonstrated any abuse of discretion here. The judgment on the partial settlement was authorized by the parties' oral recitation of its terms in open court. (Code Civ. Proc, § 664.6.) The court's judgment on the reserved issue, requiring Cord to provide coverage for six months, was supported by substantial evidence in the record and was the very relief that Deretia requested. Deretia's subsequent motions for new trial were duplicative and untimely.
DISPOSITION
The judgment is affirmed. Deretia shall pay Cord's costs on appeal. NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Brian Back, Judge
Roger Lund, Judge
Superior Court County of Ventura
Deretia L. Massie, in pro. per., for Appellant.
Cord Massie, in pro. per., for Respondent