Opinion
D072671
06-27-2018
In re the Marriage of EUGENIA and ARTURO LEDESMA. EUGENIA SANTINI, Respondent, v. ARTURO LEDESMA, Appellant.
Maldonado Myers and Antonio Maldonado for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. DS56005, D563902) APPEAL from a judgment of the Superior Court of San Diego County, James T. Atkins, Commissioner. Affirmed. Maldonado Myers and Antonio Maldonado for Appellant. No appearance for Respondent.
Appellant Arturo Ledesma appeals the status-only judgment of dissolution entered under Family Code section 2337 as requested by respondent Eugenia Santini, his former spouse of 18 years. Ledesma contends the court erred in entering the judgment dissolving only their marriage because this issue and the issues of support and custody are also pending before the courts in Mexico. Affirmed.
Santini did not submit a respondent's brief in this appeal. However, we do not "treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232-233; and In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; cf. In re Bryce C., at p. 232 ["If an appellant fails to file a brief, the appeal may be dismissed entirely"].)
OVERVIEW
Santini and Ledesma were married in 1995. They resided primarily in Mexico during their marriage. On or about November 21, 2014, Santini filed a preliminary separation proceeding in a court in Mexico (case No. 2363/2014). Provisional child custody and visitation, and child and spousal support, orders were issued in connection with this case.
On or about December 10, 2014, Ledesma filed a dissolution action in the Mexico court (case No. 2513/2014). On or about January 21, 2015, Santini filed a separate dissolution action in the same court (case No. 156/2015). The provisional custody and support orders made in case No. 2363/2014 were confirmed and reissued in case No. 156/2015.
On June 12, 2015, Santini filed the instant action for dissolution of marriage and sought orders regarding child custody and visitation, child and spousal support, and attorney fees. Ledesma on June 14, 2015, was properly served with the summons and petition while present in California. Two days later, Santini filed a request for dismissal of case No. 156/2015.
Ledesma in response to the instant action filed a request to quash service of the summons. Although the court found California acquired personal jurisdiction over Ledesma, after an evidentiary hearing it granted his request to stay the instant action on the grounds of forum non coveniens. In so doing, the court found as follows: "the child custody, visitation and support issues, and spousal support issues [citation] are properly before the relevant courts of Mexico. A preponderance of the evidence shows that the Respondent's income from employment is derived from Mexico. . . . Except for the Petitioner and her children, witnesses and documents relevant to the Respondent's income and the parties' property are largely located in Mexico, documents are written in the Spanish language and would require translation to English if the action is maintained in California. Although the Petitioner and the parties' children currently reside in California with the Petitioner and attend school in California, until the Petitioner received permission from the Mexican court to move with the children to California, the parties resided in Mexico. The court finds that Mexico is an available alternate forum in which to litigate the issues in this case."
In February 2017, Santini moved to set aside the stay and sought an order for entry of a status-only judgment of dissolution. In support of her request, Santini argued that she and Ledesma then had been separated for over two years; that their divorce case in Mexico was on appeal and a resolution of that case could take as much "as a year or more," which is why she had dismissed her dissolution action in the Mexican court (case No. 156/2015) and filed the instant action; and that she had been a "continuous resident of San Diego County . . . for over two years."
Ledesma opposed Santini's request. In support thereof, his attorney from Mexico filed a declaration under penalty of perjury dated January 27, 2017, stating that the appeal (regarding a motion filed by Santini to recuse the judge) had been resolved in the Mexican courts; that the claims for property, child and spousal support were "being heavily litigated" in the divorce action Ledesma filed in Mexico, which remained active; and that it was "likely . . . there will be a status judgment declaring ARTURO LEDESMA and EUGENIA SANTINI divorced within the next three to four months" in the Mexican action.
While acknowledging that California law provides for a status-only judgment of dissolution, Ledesma argued that law did not apply when separate dissolution proceedings involving property, child visitation and support, and spousal support were pending in a foreign country; that a status-only judgment entered in California would not be valid in Mexico; and that, in any event, Santini had not been denied a "prompt trial" in Mexico, and, to the extent the Mexican courts had taken a long time to "issue a judgment on status of [the] . . . marriage from the time the dissolution actions were started, this has been a direct consequence of [Santini's] dilatory legal maneuvers in the Mexico dissolution cases."
Santini filed a declaration under penalty of perjury in reply to Ledesma's opposition. She stated the dissolution action in Mexico then had been pending three years; that she was unable to obtain a "fair hearing" in that action and had been denied due process; and that, because she had been domiciled in California for longer than the statutory period, she had a right under California law to obtain a status-only divorce from Ledesma. Santini also included a translated statement from her counsel in Mexico stating that the Mexican judge had repeatedly expressed "feelings of hostility towards her retained counsel,. . . which ha[d] caused delay in his pleadings, since he ha[d] delayed weeks, even months, ha[d] modified proceedings and service, and on multiple occasions ha[d] committed a series of outrageous legal actions which have damaged her . . . ."
At the hearing on Santini's request for order, the court found it had jurisdiction over the parties. It rejected as "speculative" Ledesma's argument that its entering a status-only judgment of dissolution would not be recognized in Mexico and/or that its doing so would "harm" the parties. Santini, who represented her Mexican attorney was in court and was able to testify if necessary, argued the appeal in Mexico was still pending and it would be a "long time" before she could obtain a divorce in that proceeding. She also reiterated she already had waited three years to obtain such relief.
After ruling on the evidentiary objections and hearing the argument of counsel, the court granted Santini a status-only judgment of dissolution, finding that there were irreconcilable differences between the parties and that Santini had resided in the County of San Diego for at least six months. In so doing, the court noted, "This is a divisible proceeding. This — California has jurisdiction over both parties with a bona fide domicile in the petitioner here. She has a right to be divorced."
The record shows the court sustained several objections to Santini's reply declaration, which rulings are not the subject of this appeal.
DISCUSSION
"In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues." (Cal. Fam. Code, § 2337, subd. (a).) " 'All issues incident to marital termination need not be tried in a single family law proceeding. The court may, on proper motion or at the request of the pretrial judge, order the trial bifurcated, allowing early disposition of the dissolution issue and subsequent litigation of the property, support and custody issues (or any other combination of issues and trials). [Citations.]' [Citations.]" (In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 894.) A court, however, "may" impose a variety of conditions upon a party seeking a "status only" judgment that are designed to protect the nonmoving party from potential adverse consequence from the loss of marital status which might occur during the period between termination of marital status and the time final judgment is entered. (§ 2337, subd (c).)
All further statutory references are to the Family Code unless otherwise specified.
We note subdivision (b) of section 2337 required Santini to prepare a "preliminary declaration of disclosure with a completed schedule of assets and debts" in connection with her request for a status-only judgment. The record is silent regarding whether Santini prepared this disclosure. However, we note that, at least as it relates to the instant appeal, there was no dispute between the parties that the issues of "property, child support and spousal support" would remain before the Mexican court. We further note Ledesma has not raised this issue on appeal and thus we deem it forfeited, to the extent it ever was an issue. (See Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [noting a reviewing court will treat an appellant's "failure to raise an issue in his or her opening brief as a waiver of that challenge"].) --------
Here, Ledesma repeats the argument he made in the trial court that the status-only judgment should not have been granted because Mexico allegedly will not recognize that judgment and because section 2337 allegedly only applies when a separate proceeding is pending inside the United States. We find this argument unavailing for a variety of reasons.
First, he cites no legal authority to support his arguments, but instead relies on the declaration testimony of his Mexican counsel for his support. However, as noted by the trial court, the Mexican counsel merely offered his opinion on this issue, stating Mexico allegedly would not recognize the status-only judgment. The trial court during oral argument specifically inquired of Ledesma on this issue, who admitted to the court he had no documentation, such as a court order, or law to support it, thus leading the trial court to properly conclude it was purely speculative, a finding supported by the record.
Second, even if we accepted this mere statement of opinion, we reject the argument that the court erred in granting Santini the status-only judgment. The record shows that the court had in rem jurisdiction over both parties, a finding Ledesma does not challenge on appeal, and that Santini met the statutory requirements to seek such relief, a finding he also has not challenged. (See In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1444 [noting a divorce action is an in rem proceeding, in which marriage is the res that is adjudicated]; see also In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13 [noting the "in rem" jurisdiction requirement is expressed in section 2320, subdivision (a), providing in part that " 'a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition' "].)
Third, the record shows Ledesma's Mexican counsel also declared in January 2017 in support of Ledesma's opposition that it was "likely" a Mexican court would also be entering a status-only judgment for the parties in the "next three to four months." Thus, it appears the Mexican court has, or will be, providing the exact same relief Santini sought in the instant action. The point is we discern no prejudice resulting to either party based on the court's entry of the status-only judgment, as it (allegedly) was the same relief the parties were seeking in Mexico.
Fourth, the status-only judgment had absolutely no effect on the other issues that are/were before the Mexican court, including among others child custody and visitation, and child and spousal support. (See In re Stephanie M. (1994) 7 Cal.4th 295, 313-314 [noting the full faith and credit clause in section 2093, part of the Uniform Divorce Recognition Act, applies only to sister-state judgments, not foreign country judgments, but also noting a California court may, in its discretion, recognize and enforce a foreign country judgment based on principles of international comity].) Instead, the status-only judgment merely declared the parties legally divorced, with various additional terms in place to protect Ledesma.
Fifth and perhaps most importantly, Ledesma's argument ignores the strong public policy underlying section 2337. Before its passage, our high court in Hull v. Superior Court (1960) 54 Cal.2d 139 endorsed the concept of a "divisible divorce" (id. at p. 147), explaining the sound public policy as follows: "Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness. If the parties choose to enter into a property agreement, termination of their personal status should not be conditioned upon compliance with this agreement. If they enter into an integrated property settlement which provides for support payments as well as property allocation the entire agreement is considered a property agreement . . . and should be divisible in toto from the final dissolution of their personal status. Otherwise property disputes, real and specious, could continue for years, effectively preventing the legal establishment of any other relationship by either party. [Citation.]" (Id. at pp. 147-148.)
Here, the record shows that it had been nearly three years since the divorce proceedings had been initiated in Mexico. While the parties disagreed when they would be granted a divorce, with Ledesma stating it would be a matter of a few months and Santini stating it would be a very long time, we need not engage in such speculation because the plain language of section 2337, subdivision (a) clearly provides Santini is entitled to such relief. (See Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198 [noting a court of review begins with the " ' "plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent," ' " and noting the " ' "plain meaning controls if there is no ambiguity in the statutory language" ' "].)
We further conclude the court properly exercised its discretion in granting the status-only judgment given the fact it was entirely speculative when a Mexican court would grant such relief. (See In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250 [noting that when two courts from two jurisdictions have concurrent jurisdiction with respect to an in rem proceeding, the rule giving priority is generally stated in terms of comity, and thus is a rule of discretionary policy, and further noting that because husband's request for divorce in the District of Columbia was "floating in a kind of legal limbo," under principles of comity California had jurisdiction to act on his petition for dissolution, even though he consented to the reservation of all property issues to the District of Columbia court].)
DISPOSITION
The status-only judgment of dissolution is affirmed. Each party to bear his/her costs of appeal, if any.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.