Opinion
E050808
08-11-2011
In re the Marriage of HAROLD TEW and JUANITA HUDSON. HAROLD TEW, Respondent, v. JUANITA HUDSON, Appellant.
Thomas C. Brandstrader; and Alphonse F. Provinziano for Appellant. Law Offices of J. Alan Plott and J. Alan Plott 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. FAMMS800020)
OPINION
APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed.
Thomas C. Brandstrader; and Alphonse F. Provinziano for Appellant.
Law Offices of J. Alan Plott and J. Alan Plott for Respondent.
The trial court entered a judgment of marital dissolution. Appellant Juanita Hudson (Juanita) raises three contentions on appeal. First, Juanita asserts the trial court erred by denying her motion for a continuance. Second, Juanita contends the trial court erred by denying her motion to set aside various orders related to the marital settlement agreement (MSA). Third, Juanita asserts the trial court erred by denying her motion for a change of venue. We affirm the judgment.
We utilize the first names of the parties for purposes of clarity and convenience; no disrespect is intended.
FACTUAL AND PROCEDURAL HISTORY
Juanita married Respondent Harold Tew (Harold) on September 27, 2005. Juanita and Harold share a son, who was born in March 2006. Juanita is a student; Harold is in the United States Marine Corps, full-time. Juanita and Harold separated on November 11, 2007; Harold filed for divorce on January 11, 2008. In regard to assets, Juanita and Harold shared a marital residence in Yucca Valley, furniture, a car, and retirement accounts. The dissolution paperwork was filed in the Superior Court of San Bernardino County, Joshua Tree District.
On March 17, 2008, Juanita filed an order to show cause (OSC) re: child support, spousal support, an order to sell the marital residence, and attorney's fees and costs. In the OSC, Juanita requested (1) sole physical custody of their son, with visitation for Harold on alternating weekends; (2) that the marital residence be listed for sale; (3) that Harold, but no one else, i.e. a new girlfriend, live in the marital residence while it is listed for sale; (4) that Harold pay the marital debts; (5) that Harold pay his own attorney's fees, and $3,500 towards Juanita's attorney's fees; (6) costs of the lawsuit; (7) child support; and (8) spousal support. In Juanita's declaration she noted she moved to San Diego, after separating from Harold, in order to be closer to her relatives.
In Harold's response to Juanita's OSC, he requested joint physical custody of their son. Harold suggested he and Juanita alternate weeks with their son. Harold alleged Juanita was the "heir to a rather large trust fund to which she benefits now." Harold asserted all of Juanita's bills were paid by the trust while she attended college. Harold did not agree with listing the marital home for sale; he argued selling the home was not necessary because he was in exclusive possession of the home and paid all of the bills for the residence. Harold asserted the house was worth less than the money owed on the mortgage, by approximately $22,000, and he would agree to sell the house once the real estate market improved. Harold further asserted he was obligated to provide support to Juanita, due to his military status. Harold requested that Juanita pay his attorney's fees and costs.
On June 13, 2008, the trial court denied Juanita's request that the marital home be listed for sale. The trial court granted Juanita's request for sole physical custody of the child, but granted Harold visitation every weekend. Juanita's custody would take place in San Diego and Harold's visitation would take place in Yucca Valley. The court ordered that Harold would be responsible for transporting the child, in both directions, for visitation. The trial court granted Harold exclusive use of the marital home, with the obligation to pay the taxes, insurance, and mortgage, subject to reimbursement at the time of trial. Harold was also ordered to pay the equity loan, subject to reimbursement at trial. Juanita was ordered to make car payments.
Also at the hearing, Juanita's trial counsel requested that the trust documents not be filed with the court, so as to maintain the privacy of the trustor and beneficiaries. As an offer of proof, Juanita's counsel told the court that the trust provides for each beneficiary to take $10,000 to $12,000 per year from the trust at the discretion of the trustee, who is Juanita's grandmother. Harold disputed how much money Juanita received, and argued she was purposefully choosing to not work despite her training as a loan processor. The trial court said, "I'm going to set this for trial" as to all the remaining issues, such as child support and spousal support. The trial court set the trial for October 15. Juanita was present at the hearing when the trial court made the comments about setting trial.
On July 25, 2008, Harold filed a Family Law Case Management Conference Statement. In the statement, Harold asserted he was still waiting on discovery from Juanita, and that a hearing on his motion to compel discovery responses was scheduled for July 25. In Juanita's statement, she asserted she would respond to the discovery requested prior to September 5, 2008. Juanita alleged Harold sent the discovery requests to an incorrect address, which was one reason for the delay in the discovery process. On September 26, 2008, the trial court sanctioned Juanita $800 for failing to comply with discovery requests.
Harold was relocated to the Marine Corps base in Yuma, Arizona. On December 8, 2008, Juanita filed a declaration related to the OSC. In her declaration, Juanita consented to Harold's visitation taking place in Arizona; however, she did not want Harold to have visitation with their son every weekend. Rather, Juanita suggested Harold have visitation every first and third weekend of the month. Juanita asserted Harold rarely visited their son, and therefore, there was no reason for Harold to be granted visitation every weekend, since he seldom utilized the visitation time. Juanita suggested Harold be responsible for picking up their son for visits, but Juanita would meet Harold at a halfway point to exchange their son at the end of the visits. Juanita did not want to meet at a halfway point to deliver their son to Harold; she feared Harold would not show up for the visitations, and leave her waiting. Juanita did not consent to paying half of the mortgage debt. Juanita again requested child support, and asked that Harold pay his own attorney's fees as well as a portion of her attorney's fees.
In Juanita's declaration she also raised concerns about being terminated from Harold's health insurance. Juanita alleged Harold had a girlfriend, who was pregnant and living with him. Juanita feared Harold would marry his girlfriend, in order to place her on his health insurance, which would terminate Juanita's coverage. Juanita declared she would not consent to the dissolution of the marriage, unless Harold was ordered to maintain health insurance for Juanita and their son, at Harold's expense.
On December 12, 2008, Juanita filed an income and expense declaration. Juanita declared that she was living on student loans and a $3,500 loan from her father. Juanita also received a gift of $9,998 from her father. Juanita claimed her expenses were $4,408 per month, and that she was living with her son and her mother. Juanita declared that her mother had $479 in monthly income and paid some of the household expenses. Juanita claimed she had paid her attorney $13,014, with money from the trust and a loan from her father.
At a hearing on April 21, 2009, the trial court remarked that trial in the instant case was scheduled to start the next day, but the trial court was not available. Juanita was present at the April 21 hearing. The trial court instructed the parties to return on June 2.
On June 2, 2009, Juanita's counsel asked for a short continuance, in order to possibly resolve the case without trial. The court granted the continuance and scheduled the trial for September 24. On September 25, 2009, Harold's counsel informed the trial court that the matter was almost ready to proceed to trial on issues of custody, visitation, child support, spousal support, and reimbursements. The parties believed they would be ready for trial in November. Due to conflicting schedules, the trial was scheduled to start on January 6, 2010.
On December 30, 2009, at the trial readiness conference, Juanita's counsel asked for a continuance until March, because she had only recently received supplemental discovery responses from Harold. Harold's counsel objected to the continuance, because the temporary court orders required Harold to pay most of the community debts, and the debts were a financial burden. The court scheduled the trial date for March 9, 2010.
On January 13, 2010, the trial court held a hearing regarding Harold's request to shorten the amount of time before trial. The trial date was changed to February 2, 2010. On February 2, Harold and Juanita were present in court with their attorneys. The trial court discovered a mandatory settlement conference had not yet occurred in the case. Harold's attorney told the court that the parties had reached agreements as to two of the credit cards, custody, visitation, insurance, the house, and the second mortgage on the house; however, the parties still needed to discuss the equity loan and reimbursements. Juanita's trial counsel read the stipulated financial agreements into the record.
The financial agreements provided that (1) spousal support was terminated for both parties; (2) each party was responsible for his or her own health insurance; (3) Harold's military retirement was his separate property; (4) Harold could keep the Ford Focus, and was responsible for the $12,000 debt associated with that vehicle; (5) Juanita could keep the Toyota Prius, and was responsible for the $16,000 debt associated with that car; (6) the marital residence was community property, and was being leased for $1,000 per month; (7) both parties were equally responsible for the bills associated with the marital residence; (8) the marital residence would be listed for sale, and both parties would equally share the profits or debts associated with the sale; (9) Harold could keep the computer because he paid the $4,500 debt associated with it; (10) Juanita was responsible for the $4,500 debt on the GE credit card; (11) Juanita was responsible for the Chase credit card, as her postseparation debt; (12) the $10,000 debt on the credit union card was community debt, and each party was responsible for paying $5,000; and (13) Harold was responsible for any debt over $10,000 on the credit union credit card. The trial court accepted the agreement as fair and equitable.
On February 8, 2010, Harold and Juanita were present in court again with their attorneys. The parties arrived at court at 1:30 p.m. and worked on a possible settlement of the outstanding issues. At 3:07 p.m., the parties informed the court they had reached agreements on several more issues. Juanita's counsel stated the parties were working through the different debts, so that Harold and Juanita would each be responsible for an equal sum. Another conference was scheduled for February 18.
On February 18, 2010, Harold and Juanita were present in court with their trial attorneys. Juanita's counsel informed the court that she believed a settlement had been reached on all the outstanding issues. Juanita's trial counsel read the stipulated agreements into the record. The agreements included: (1) both parties would pay their own attorney's fees; (2) Harold would have a 25-percent timeshare with their son; (3) Juanita owed Harold $23,500 for her half of the community debts that Harold took responsibility for, as well as reimbursements owed to Harold; (4) Harold owed Juanita arrears, in an amount to be determined; and (5) Harold would pay $800 per month for child support and child care.
On March 15, 2010, Juanita removed the trial counsel that had been representing her, and added a new attorney of record, Alphonse Provinziano. A hearing on March 15 had been scheduled to enter the various stipulated agreements into a final judgment. An attorney specially appearing for Provinziano requested that the trial court grant a continuance, so that Provinziano would have time to review the settlement agreements. The attorney stated that Juanita had retained Provinziano the day prior, March 14. The attorney explained to the trial court that Juanita told her previous trial counsel she was uncomfortable with the settlement agreements, but prior counsel told Juanita she "had no choice but to accept it." The attorney claimed there had been a breakdown in the communication between Juanita and prior counsel, and/or that Juanita had signed the settlement agreements under duress.
The trial court explained that it had been involved in the settlement agreement process, and that it (1) ensured the parties understood the agreements, and (2) the agreements were fair and equitable. Harold's attorney argued Harold was scheduled to be deployed to Afghanistan in six days, and therefore, if the matter were continued, Juanita should be responsible for Harold's attorney's fees. Harold's attorney argued the various agreements had already been signed by the parties, and it appeared Juanita was waiting for Harold to be deployed so that he would not be present to represent his interests. The trial court ordered that the parties appear the following Friday.
On March 16, 2010, Juanita filed a motion to set aside the various marital agreements and court orders that had been made in the case. Juanita argued the agreements and orders should be set aside because the division of assets and debts was not equitable. Juanita asserted Harold "manipulated [her] into entering into the [MSA] for his own financial gain." Juanita asserted she had been misled into entering into the settlement agreements by Harold, Harold's attorney, her prior attorney, and the trial court. Juanita asserted the trust fund she had drawn from was depleted, and it was improper to impute future trust fund income to her, because she was now living off of loans from her father. Juanita asserted her prior attorney did not tell her she could reject the settlement terms and proceed to trial regardless of Harold's impending deployment. Juanita asserted Harold used his impending deployment as a tool to make her accept agreements that were inequitable. Further, Juanita asserted her prior counsel charged her $22,500 in fees, but provided Juanita with little assistance. Juanita claimed to be overwhelmed by (1) the divorce proceedings, (2) her father being sick with cancer, (3) attending school, and (4) being unemployed. Juanita claimed that due to feeling overwhelmed, and receiving little assistance from her prior trial counsel, she "gave [into] the demands being made of [her]," despite not having the financial means to meet the various obligations she accepted in the settlement agreements.
In regard to the marital residence, Juanita asserted Harold unilaterally decided to rent the property for less than the amount of the mortgage; however, the agreement required Juanita to be responsible for half of the bills related to the house. Juanita argued the equal division of the bills was not equitable because she was "not receiving a benefit from [the] agreement." Juanita asserted if Harold wanted to maintain a house that had no value, then he should have to do so without Juanita's financial assistance. Additionally, Juanita argued she did not want to be a colandlord with Harold.
On March 19, 2010, Juanita filed a motion for a change of venue. Juanita asserted the case should be heard in San Diego County, because that was where she and Harold's son resided. Juanita asserted she lived in San Diego and Harold lived in Yuma, Arizona; therefore, there was no reason for the case to be heard in Joshua Tree. Juanita argued it would be difficult for her to call witnesses to appear in Joshua Tree, because all of her potential witnesses resided in San Diego, and traveling would be a hardship. Juanita claimed her prior attorney did not inform her she could change the venue of the case, which is why she did not move for a change of venue sooner.
On March 19, 2010, the parties returned to court. Harold appeared by telephone, due to his deployment being scheduled for the following day. The trial court denied Juanita's motion for a change of venue because "[t]he trial ha[d] basically been heard" and Juanita had appeared at the Joshua Tree court "multiple times."
In regard to the continuance, Provinziano argued a continuance was necessary due to the breakdown in communication between Juanita and her prior counsel. Provinziano asserted he lacked various documents from Juanita's case file. Provinziano requested the case be continued until Harold returned from Afghanistan. The trial court explained it had granted a continuance until that day—March 19—to allow Provinziano to "get up to speed" on the case. Provinziano explained to the trial court that he was not ready to proceed with the case. The trial court denied the motion to continue. The trial court explained it denied the motion because "[t]here's no need to continue a trial that has been concluded. All issues have been settled." Provinziano reminded the court he did not have a complete case file, and therefore could not "fully handle this case." The trial court explained, "the case has been handled, been concluded. So the motion to continue the trial is not granted."
Next, the trial court addressed the motion to set aside the various settlement agreements and orders. Provinziano argued the agreements should be set aside because they were not equitable, and he restated his argument related to the marital residence, i.e., the division being unfair. The trial court explained the settlement agreement needed to be looked at as a whole, because while one portion may seem inequitable, there may be an offset somewhere else, such as the debt of a credit card being Harold's responsibility. The trial court explained that just because everything was not perfectly equal, did not mean that the agreement was so unfair as to be inequitable.
Provinziano argued the agreement should be as close to a 50/50 division of assets and debts as possible, in order to be equitable. The trial court explained that Provinziano's argument was circular, because on one hand he was asserting the agreement was not fair and not equitable, but on the other hand he was claiming he was unfamiliar with the case and unable to proceed with the trial. The trial court concluded the two arguments could not be reconciled, because if Provinziano was unfamiliar with the case, then he could not know if the agreement was unfair and inequitable.
In regard to Juanita feeling overwhelmed, the trial court stated it had observed Juanita during the various settlement days and it did not appear that Juanita was overwhelmed. The trial court recalled Juanita "smiling, and on several occasions [entering] into conversation[s] with [Harold]." The trial court also recalled Juanita's prior counsel spending hours with Juanita working on the settlement agreements. The trial court further noted Juanita never indicated to the court she was confused about what was transpiring. The trial court denied the motion to set aside the agreements and orders.
The trial court then moved on to the issue of attorney's fees. Harold's attorney stated his hourly rate was $300; he spent two hours preparing for the hearing, and another two hours at the hearing and travel, for a total of $1,200. The trial court awarded attorney's fees for Harold's attorney, due to Juanita having brought the various motions despite already having entered into a settlement agreement. The trial court asked Harold's attorney to prepare the final judgment.
DISCUSSION
A. PROCEDURAL MATTER
Before addressing the merits of Juanita's contentions, we address a procedural matter raised by Harold. Harold asserts Juanita does not appear to be seeking a reversal of the final judgment in this case; rather, Juanita wants a reversal of the trial court's rulings on her motions for a continuance, for a change of venue, and to set aside the settlement agreement. Harold notes that on August 23, 2010, this court issued an order dismissing Juanita's direct appeals from the foregoing interlocutory orders and motion rulings. Harold argues that, based upon this court's August 23 order, Juanita is essentially appealing orders that have already been deemed non-appealable.
We view Juanita's appeal somewhat differently, and therefore reach the merits of her contentions. This court's August 23 order dismissed Juanita's direct appeal from the interlocutory orders, because an appeal must be taken from a final judgment. (Code Civ. Proc., § 904.1, subd. (a)(1); see also Angell v. Superior Court (1999) 73 Cal.App.4th 691, 697 [Fourth Dist., Div. Two].) However, Juanita is allowed to address those interlocutory orders in her appeal from the final judgment—she just cannot appeal directly from the interlocutory orders. (See In re Supple's Estate (1966) 247 Cal.App.2d 410, 414, fn. 3 [an interlocutory order must be considered on an appeal from the final judgment].)
We interpret Juanita's appeal as follows: Juanita is appealing from the final judgment of the trial court dated May 20, 2010. Juanita is arguing that if the trial court erred in denying her motion for a continuance, motion to set aside the MSA, and/or motion for change of venue, then the final judgment should be reversed.
B. MOTION TO SET ASIDE
1. CONTENTION
Juanita contends the trial court erred by denying her motion to set aside the MSA, judgments, and orders issued on June 13, 2008, February 2, 2010, February 8, 2010, and February 18, 2010, because (1) Juanita agreed to the various stipulations while under duress; (2) Juanita was induced to into the agreement by fraud; (3) Harold unduly influenced Juanita; (4) there was incorrect evidence related to Juanita's family trust; and (5) the orders are not fair and equitable. We disagree.
Since the various judgments, orders, and stipulations were merged into the final judgment, we refer to them as the "marital settlement agreement," or MSA, rather than discussing them as separate entities.
It appears the motion to set aside was brought pursuant to Family Code section 2122, as opposed to Code of Civil Procedure section 473, subdivision (d).
2. STANDARD OF REVIEW
We review the trial court's denial of Juanita's motion to set aside the settlement agreement for an abuse of discretion. (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346 (Brewer).)
3. UNDUE INFLUENCE
"Family Code section 721, subdivision (b) provides in part that '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.' In view of this fiduciary relationship, '[w]hen an interspousal transaction advantages one spouse, "[t]he law, from considerations of public policy, presumes such transactions to have been induced by undue influence."' [Citation.] 'Generally, a fiduciary obtains an advantage if his position is improved, he obtains a favorable opportunity, or he otherwise gains, benefits, or profits.' [Citation.] The spouse advantaged by the transaction has the burden of dispelling the presumption of undue influence. [Citation.] The presumption can be dispelled by evidence that the disadvantaged spouse entered into the transaction 'freely and voluntarily . . . with a full knowledge of all the facts and with a complete understanding of the effect of the [transaction].'" (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 84.)
For the sake of judicial efficiency, we will assume, without deciding, that Harold was advantaged by the MSA, which means Harold had the burden of showing that Juanita freely and voluntarily entered into the agreement. Juanita asserts Harold "manipulated" her into entering into the MSA. Although Juanita's argument related to undue influence is tangled with various other arguments, it appears she is asserting the following theory: Harold unduly influenced Juanita into agreeing to various stipulations by being uncertain about when he would be deployed; since, Harold was uncertain about his deployment, Juanita was forced to enter into the MSAs. Therefore, it is Harold's burden to show these allegations are incorrect.
The record includes a letter from a Marine Corps commander to the trial court, dated January 6, 2009, in which the commander wrote that Harold was scheduled to deploy on March 5, 2010. The record further reflects Harold deployed on March 20, 2010. Since Harold's deployment was scheduled more than one year in advance, and was only pushed back for two weeks, it seems unlikely that the possible two week period of "uncertainty" would cause Juanita to be unduly influenced.
Moreover, the record reflects the divorce proceedings started on January 11, 2008. In an application for an OSC and a responsive declaration filed on March 17, 2008, Juanita set forth her detailed requests related to the marital residence, child support, spousal support, attorney's fees, and automobiles. The marital settlement talks took place approximately two years later on February 2, 2010, and February 8, 2010. The settlement talks occurred at the trial court where Juanita nodded her head in the affirmative to show that she was willing to keep working with Harold, Harold's attorney, and her attorney, to reach a final agreement. The trial court recalled that on the days of the settlement talks, Juanita was smiling and talking to Harold.
Given that Juanita was represented by counsel, had two years to understand the facts and proceedings, affirmatively agreed to continue working on the settlement, and was smiling during the settlement proceedings, we conclude that any notion of Harold unduly influencing Juanita has been dispelled. Since the foregoing evidence supported the trial court's holding related to undue influence, we conclude the trial court did not abuse its discretion.
4. FRAUD
"Actual fraud [occurs] where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding." (Fam. Code, § 2122, subd. (a).)
Juanita asserts that she was kept ignorant regarding: (1) her right to not accept the terms of the settlement, despite Harold's impending deployment; (2) the value of the marital assets; and (3) "[t]he correct and precise interpretations of the provision and the supporting law and rights of each party."
We first address the fraud issue as it relates to Juanita's right to not accept the settlement agreement. In a letter from a Marine Corps commander to the trial court, dated January 6, 2009, the commander wrote that Harold was scheduled to deploy on March 5, 2010, and requested that "any and all trials or hearings in the case . . . be conducted before 5 March." The parties appeared in court to discuss possible settlement terms on February 2 and 8, approximately one month before Harold was scheduled to deploy. Juanita was present in court when her attorney informed the trial court that a trial in the case would likely take two days.
Since there was a month before Harold's scheduled deployment, and trial would only take two days, it is unclear how Juanita was given the impression that she had to accept the settlement terms, since there was time for trial to take place. Moreover, if Juanita did not want trial, but simply wanted to continue negotiating, there was nearly a month available to her to continue negotiations. Additionally, when Juanita's counsel stated her belief that everyone was willing to keep working on a settlement, Juanita nodded her head in the affirmative. Thus, it appears Juanita was aware that she was an active party in the settlement process, and did not need to merely acquiesce to Harold's terms. In sum, the record supports a conclusion that Juanita was not defrauded into believing she was required to accept the terms of the settlement due to Harold's impending deployment. Therefore, as to this point, we conclude the trial court did not abuse its discretion by denying the motion to set aside.
Second, we address the fraud issue as it relates to the value of the marital assets and accounts. Although it appears the parties had more debts than assets, it seems that Juanita was well apprised of the various debts. Early in the proceedings, in March 2008, Juanita filed a declaration in which she detailed various finances starting in November 2005, and continuing through to 2008, such as $4,000 that Harold allegedly spent on jewelry for his girlfriend. In Harold's responsive declaration, filed on March 27, 2008, he declared the marital residence was worth $200,000, but the mortgage debt was approximately $222,000. The record also contains the Kelley Blue Book value of the Toyota Prius, as well as the bill for Harold's computer, and the estimated value of the marital residence obtained from an Internet site.
Based upon the foregoing evidence, it is unclear how Juanita was defrauded in regard to the value of different assets and accounts, since much of the marital financial information is contained in the record. It is also unclear exactly which assets and accounts Juanita's argument relates to; for instance, we assume the argument relates to the house, computer, and car, but Juanita does not name specific items or accounts within her contention. Thus, due to much of the financial information being available in the record, as well as Juanita's declaration discussing the couple's financial history, we conclude the trial court did not abuse its discretion by denying the motion to set aside, as it relates to this contention, since the record supports a conclusion Juanita was informed of the couple's finances.
Third, we address Juanita's argument that she was defrauded as to "[t]he correct and precise interpretations of the provision and the supporting law and the rights of each party." It is unclear what provision Juanita is referring to and how she was defrauded. Accordingly, since the assertion lacks a citation to the relevant provision, as well as factual references, we treat it as waived and decline to discuss it further. (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830; see also Cal. Rules of Court, rule 8.204(a)(1)(B).)
5. DURESS
Duress includes destroying a person's free agency by means of threats or mental coercion, so that the oppressed person acts against her will. Duress "is shown where a party 'intentionally used threats or pressure to induce action or nonaction to the other party's detriment. [Citation]' [Citations.] The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing. [Citation.]" (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84, fn. omitted.)
Juanita asserts Harold pressured her by "fail[ing] to provide evidence of a date certain for his alleged deployment." As set forth ante, the record includes a letter from a Marine Corps commander to the trial court, dated January 6, 2009, reflecting Harold would be deployed on March 5, 2010. The record further reflects that on March 19, 2010, Harold had to appear by court call, rather than in person, because he was scheduled to be deployed the following day and could not leave his military base. Thus, the record reflects that Harold's deployment had a date-certain for over a year, but was delayed by approximately two weeks. It is unclear how these dates caused Juanita duress. Juanita does not explain how the two-week delay caused her duress, or exactly what Harold said to pressure her. Further, Juanita does not provide record citations to support her argument, so that we could try to infer what threats were made towards her. In sum, the record supports the trial court's conclusion, because there appears to only be a possible two-week period in which it was unclear when Harold might deploy. As a result, the trial court was correct to conclude that Juanita was not in duress due to the uncertainty of Harold's deployment date. Therefore, we conclude the trial court did not abuse its discretion.
6. TRUST EVIDENCE
Juanita contends the evidence Harold presented related to her trust is erroneous, and therefore the trial court should have granted her motion to set aside the MSA. Juanita asserts Harold incorrectly convinced the trial court that Juanita's family was wealthy and would support her via loans and a trust fund. In support of this argument, Juanita cites her own motion to set aside the MSA. Juanita does not explain what evidence is false or erroneous, or how it is false or erroneous. This court is not inclined to speculate as to what evidence Juanita's argument might relate to. Due to Juanita's failure to explain what item of Harold's evidence is false, we deem the issue to be waived. (In re Marriage of Falcone, supra, 164 Cal.App.4th at p. 830; see also Cal. Rules of Court, rule 8.204(a)(1)(B).)
7. UNFAIR AND INEQUITABLE
Juanita contends the motion to set aside should have been granted because the MSA is unfair and inequitable. Assuming, without deciding, that the marital agreement is inequitable, we are confronted with the rule that "parties are free to decide on an unequal distribution" of debts and assets. (Brewer, supra, 93 Cal.App.4th at p. 1349.) The mere fact that a marital agreement is inequitable typically will not support setting aside a judgment. (Id. at p. 1344.)
In Juanita's opening brief, she explains that Harold rented the marital residence for an amount less than the monthly mortgage payment. Juanita points out the MSA required her to be responsible for half of the mortgage payments, but she no longer wanted the house. Juanita further points out she provided the 20 percent down payment on the house. Juanita then shifts to arguing the facts related to the community debt.
In relation to the debt, Juanita notes she paid for several of Harold's separate property debts while they were married. Juanita asserts she was not given credit for those debt payments. Juanita argues the lack of credits "is in contravention of California law and can be cited as a basis for setting aside the judgment." Juanita then cites various statutes as well as In re Marriage of Moore (1980) 113 Cal.App.3d 22, and concludes that a settlement agreement "can be set aside where the court finds that the division of assets and debts is not equitable. This action is appropriate even absent a showing of fraud or [c]ompulsion."
We are not persuaded by Juanita's argument, because the state of the law is as follows: "'[A] trial court may not set aside a dissolution judgment on the sole grounds the judgment is inequitable or the support ordered is inadequate.' [Citations]." (Brewer, supra, 93 Cal.App.4th at p. 1344.) In re Marriage of Moore, supra, 113 Cal.App.3d at page 27 provides: "We recognize as a general proposition the law favors property settlement agreements untainted by fraud, compulsion or violations of confidential relationships between parties. However, where agreements are made without advice of legal counsel, the court must carefully scrutinize them to prevent inequities. [Citation.]" (Italics added.) In other words, the fact that a MSA is inequitable, on its own, is insufficient to reverse a judgment; however, if another fact is present, such as the appellant not being represented by counsel, then such facts might support the reversal of the judgment.
In the instant case, Juanita was represented by counsel during the settlement negotiations. We have concluded it was reasonable for the trial court to find that Juanita was not (1) unduly influenced; (2) defrauded; or (3) under duress. Accordingly, it does not appear any other fact was present that would support the reversal of the judgment. Therefore, we find Juanita's argument unpersuasive.
C. MOTION FOR A CONTINUANCE
Juanita contends the trial court erred by denying her motion for a continuance. We disagree.
Continuances of trials are disfavored; however, a continuance may be granted if a party shows good cause for the continuance. (Cal. Rules of Court, rule 3.1332(c).) Good cause exists where there has been a "substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice." (Cal. Rules of Court, rule 3.1332(c)(4).)
"The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court's exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.]" (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)
On March 15, 2010, Juanita filed a substitution of attorney with the trial court. That same day, the trial court granted Juanita's new counsel a continuance. In other words, the continuance that is contemplated for an attorney substitution was granted by the trial court. (Cal. Rules of Court, rule 3.1332(c)(4).) On March 19, 2010, Juanita again moved for a continuance, or in the alternative, an order shortening time. The reason for the requested continuance was that the newly substituted counsel needed time to prepare. (Cal. Rules of Court, rule 3.1332(c)(4).) Juanita requested that the matter be continued until Harold returned from Afghanistan.
The trial court's denial of the motion for a continuance was not an abuse of discretion for several reasons. First, the trial court had already granted the newly substituted counsel a continuance, in order for counsel to familiarize himself with the case. California Rules of Court do not provide for unlimited continuances based on substitution of counsel. (Cal. Rules of Court, rule 3.1332(c)(4).) Second, Juanita requested a continuance or an order shortening time. If Juanita's counsel was prepared for an expedited schedule, in the event that the order shortening time was granted, it is unclear why counsel would need a continuance to prepare the case. Third, Juanita and Harold had reached agreements approved by the trial court as to all issues on February 18, 2010. Therefore, counsel did not need time to prepare for a trial, because a settlement agreement had been reached on all issues. In sum, the trial court did not abuse its discretion in denying the motion for a continuance, because the trial court's decision was supported by the record, and therefore was within the bounds of reason.
D. CHANGE OF VENUE
Juanita asserts the trial court erred by denying her motion for a change of venue. We disagree.
"In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party." (Code Civ. Proc., § 397.5.) We review the denial of a motion for change of venue under the abuse of discretion standard of review. (Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4th 306, 308.)
Juanita brought her motion for a change of venue on March 19, 2010. The parties reached a trial-court-approved final agreement on all the issues in the case on February 18, 2010. Prior to Juanita's various motions, the only matter remaining between the parties was incorporating the settlement agreement into the final judgment. Indeed, after Juanita's motions were denied, the next actions that occurred in the case were (1) filing a premature notice of appeal, and (2) the court filing a final judgment.
Since the case was nearly complete at the time Juanita moved to change the venue, there were no more hearings that the parties or witnesses would need to travel to; therefore, it does not appear that the convenience of the parties would justify granting the change of venue motion. Further, since all the issues in the case were settled, it appears "the ends of justice" also did not require the granting of the motion. (Code Civ. Proc., § 397.5.) Accordingly, the trial court did not abuse its discretion by denying the change of venue motion.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: RAMIREZ
P. J.
RICHLI
J.