Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Timothy M. Murphy, Temporary Judge, Los Angeles County Super. Ct. No. BD305120
Pursuant to California Constitution, article VI, section 21.
Law Offices of Pease & de Petris, Edgar B. Pease III and Cynthia A. de Petris for Defendant and Appellant.
Trope and Trope and Hillary Slevin for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
A former husband appeals from an order denying his motion pursuant to Family Code section 2122, subdivision (a) to set aside his default in a marital dissolution action because of “actual fraud.” The former husband, however, failed to bring his motion within the one-year limitations period in section 2122, subdivision (a), and failed to show the “actual fraud” that statute requires as a ground for relief. We find no abuse of discretion and affirm the trial court’s order denying former husband’s motion.
Unless otherwise specified, statutes in this opinion will refer to the Family Code.
FACTUAL AND PROCEDURAL HISTORY
This appeal arises from a dissolution proceeding between former wife Yuki Whang and former husband Gyou Tae Whang. Because the parties share a surname, this opinion will refer to them by their first names, Yuki and Gyou Tae. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 329, fn. 1.) On July 15, 1999, Yuki filed a petition for dissolution of a 14-year, 10-month marriage to Gyou Tae. The petition requested confirmation as Yuki’s separate assets, inter alia, real property located at 28405 Rothrock Drive, Rancho Palos Verdes, California. Yuki’s petition contained a declaration that there were no community and quasi-community assets and obligations subject to disposition by the court in the dissolution proceeding.
On February 28, 2000, Yuki filed a request to enter default. It stated that Gyou Tae had failed to respond to her petition, and that no property declaration was attached because there were no issues of division of community property. On February 28, 2000, default was entered and a copy was mailed to Gyou Tae. On May 10, 2000, Yuki served her declaration of disclosure on Gyou Tae. Yuki’s declaration listed no community property or separate property assets or debts of any kind.
On June 26, 2000, a judgment of dissolution was entered and the Clerk served notice of entry of judgment on Gyou Tae. The judgment reserved jurisdiction to make other orders necessary to carry out the judgment.
On May 18, 2004, Yuki filed a civil complaint against Gyou Tae. A cause of action for conversion alleged that while Yuki and Gyou Tae were married from August 1984, through their June 1999 separation and their June 26, 2000 judgment of dissolution, Yuki owned 28405 Rothrock Drive and received all rights and title to that property by quitclaim deed dated February 15, 1999. The complaint alleged that this residence was Yuki’s sole and separate property, and that Gyou Tae falsely represented to third persons that he owned, or had a legal interest in, 28405 Rothrock Drive. The complaint’s cause of action for conversion alleged that since September 2002, Gyou Tae had misappropriated and converted Yuki’s name and creditworthiness, the equity in the 28405 Rothrock Drive property, and other property belonging to Yuki. The complaint alleged that Gyou Tae had obtained loans and credit by forging Yuki’s name and listing 28405 Rothrock Drive among his assets, and obtained the cash surrender value of a life insurance policy owned by Yuki by forging Yuki’s name on an application for payment of the full cash surrender value of that policy. The complaint also alleged causes of action for intentional infliction of emotional distress, for an accounting of all Yuki’s money and property Gyou Tae obtained by misappropriation, for declaratory relief, and for an injunction.
On August 9, 2004, Gyou Tae filed a cross-complaint for constructive trust, breach of oral contract, breach of fiduciary duty, and for an accounting against Yuki as cross-defendant. Gyou Tae’s cross-complaint alleged that 28405 Rothrock Drive and a second real property, the Happy Traveler Inn at 1420 E. Innes Street, Salisbury, North Carolina, were community property acquired during the marriage of Gyou Tae and Yuki, and that Yuki held the two properties in trust since February 15, 1999, when Gyou Tae signed a quitclaim deed to Yuki to protect her property. The cross-complaint sought a decree that Yuki held the properties in constructive trust for Gyou Tae. The cross-complaint also stated Gyou Tae’s belief that Yuki’s action should be brought in the family law court as part of the dissolution action.
Although the order is not in the record, Yuki’s complaint and Gyou Tae’s cross-complaint were dismissed in April 2005 after the trial court indicated that the dispute belonged in family law court.
On March 3, 2005, in the dissolution action, Yuki filed a motion to divide omitted assets pursuant to section 2556. This motion sought to confirm 28405 Rothrock Drive and the Happy Traveler Inn as Yuki’s separate property. In an attached declaration, Yuki stated that she purchased 28405 Rothrock Drive with her separate funds after she and Gyou Tae separated, and that she purchased the Happy Traveler Inn in November 2000 with her separate property funds. Yuki’s declaration stated that title on both properties was in her name alone.
Section 2556 states: “In a proceeding for dissolution of marriage . . . the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”
The record contains Gyou Tae’s April 4, 2005, declaration in opposition to Yuki’s motion. In that declaration, Gyou Tae stated that he purchased 28405 Rothrock Drive by paying $35,000 down payment. Gyou Tae stated: “I purchased the property with my wife, Petitioner Yuki Whang, in 1985 under the name of Kang Sung Koo, the brother-in-law of Petitioner, by agreement of Petitioner and I. Koo had no ownership interest in the property and his name was added for credit and financing purposes since Petitioner had just gone through a bankruptcy in early 1985.”
On April 28, 2005, the trial court made findings and adjudicated the characterization and ownership of two real property assets not adjudicated in the dissolution judgment. These findings are as follows: Yuki’s July 15, 1999, petition for dissolution described 28405 Rothrock Drive as Yuki’s separate property. The petition did not list the Happy Traveler Inn, as Yuki did not acquire that property until after the petition was filed, and therefore Yuki had withdrawn her request that the trial court make orders or findings regarding the Happy Traveler Inn. No property was awarded or confirmed when the trial court entered judgment for dissolution on June 26, 2000, after entry of Gyou Tae’s default. In light of the entry of Gyou Tae’s default, the trial court on April 28, 2005, confirmed 28405 Rothrock Drive as Yuki’s sole and separate property.
On November 14, 2005, Gyou Tae filed a motion to set aside the default judgment pursuant to sections 2121 and 2122, subdivision (a). In his declaration, Gyou Tae alleged that he and Yuki agreed their divorce was not real and was only a “paper divorce” to protect assets and business transactions from creditors. Pursuant to his agreement with Yuki, therefore, Gyou Tae did not respond to or contest divorce papers filed in July 1999. Gyou Tae further alleged that he and Yuki continued to live as husband and wife in Los Angeles and in North Carolina, where they had purchased the “Happy Traveler Inn” motel.
Gyou Tae’s declaration alleged that he paid a $35,000 down payment to purchase 28405 Rothrock Drive with Yuki in 1985 under the name of Kang Sung Ku, Yuki’s brother-in-law, by agreement with Yuki. Ku did not own the property and his name was added for credit and financing purposes since Yuki had gone through a bankruptcy in early 1985, was penniless, and had no money to buy any property. Gyou Tae stated that he gave Yuki $10,000 annually and paid her medical insurance and travel expenses. Gyou Tae stated that Yuki had destroyed most of their records.
Gyou Tae stated that he lived at 28405 Rothrock Drive since he bought it in 1985. He stated that he paid the second $157,000 mortgage in 1989, and paid the first mortgage and insurance until 1999, when Yuki filed for divorce. At that time he and Yuki orally agreed Gyou Tae could live in 28405 Rothrock Drive for the rest of his life. Yuki filed for divorce in 1999, telling Gyou Tae that it was just a “paper divorce” to protect their community property in case his import-export business went into bankruptcy.
Gyou Tae stated that Sung Ku Kang quitclaimed 28405 Rothrock Drive back to Yuki, who put her name only on the title, but that Gyou Tae was not informed of this change until 2004 and this violated an original agreement pursuant to which Sung Ku Kang held the 28405 Rothrock Drive property for both Yuki and Gyou Tae. Gyou Tae stated that Sung Ku Kang knew no English, had been under Yuki’s control since his wife, Yuki’s sister, died in 2002, and quitclaimed the 28405 Rothrock Drive property in 1999 without knowing what a quitclaim is.
Gyou Tae’s declaration also contained allegations concerning the second property, the Happy Traveler Inn in Salisbury, North Carolina, but Gyou Tae does not appear to claim error with regard to this property on appeal.
On December 5, 2005, Yuki filed opposition to Gyou Tae’s motion to set aside the default judgment, arguing that Gyou Tae’s motion was untimely.
On December 28, 2005, the trial court denied Gyou Tae’s motion to set aside the default judgment.
Gyou Tae filed a timely notice of appeal from the December 28, 2005, order.
ISSUES
Gyou Tae claims on appeal that:
1. Section 2121, subdivision (a) provided the trial court with authority to set aside the dissolution judgment;
2. Section 2122, subdivision (a) supported Gyou Tae’s request for relief from judgment based on Yuki’s actual fraud, which prevented Gyou Tae from fully participating in the dissolution proceeding; and
3. The trial court should have granted Gyou Tae’s motion to set aside the default because the judgment is inequitable.
DISCUSSION
1. The One-Year Limitations Period in Section 2122, Subdivision (a) Bars Gyou Tae’s Motion for Relief From Judgment
Section 2121 provides authority for the trial court to relieve a spouse from a dissolution judgment, as follows:
“(a) In proceedings for dissolution of marriage . . . 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.”
Gyou Tae relies on the ground of Yuki’s “actual fraud” set forth in section 2122, subdivision (a):
“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.”
A trial court’s exercise of discretion in refusing to set aside a judgment under section 2122 is subject to reversal on appeal only if this court finds an abuse of that discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
Thus under section 2122, subdivision (a), Gyou Tae had to bring his motion for relief from the default judgment within one year after the date he did discover or should have discovered Yuki’s fraud.
Yuki’s petition requested confirmation of the 28405 Rothrock Drive property as Yuki’s separate asset, and contained a declaration that there were no community and quasi-community assets and obligations subject to disposition by the court in the dissolution proceeding. It is true that Yuki’s schedule of assets and debts did not identify any separate property belonging to her, or any community property. But on May 18, 2004, Yuki filed a complaint against Gyou Tae specifically alleging that at all relevant times during their marriage, “Plaintiff was the owner of the residence located at 28405 Rothrock Drive, Rancho Palos Verdes, California 90275 (hereinafter the ‘Residence’). Plaintiff received all rights and title to the Residence by quitclaim deed dated February 15, 1999 . . . . The Residence is Plaintiff’s sole and separate property.” Thus as of May 18, 2004, Gyou Tae had notice that Yuki claimed ownership of 28405 Rothrock Drive as her separate property. As of May 18, 2004, therefore, Gyou Tae discovered, or should have discovered, Yuki’s alleged fraud in failing to include the 28405 Rothrock Drive as her claimed separate property in her February 28, 2000, request to enter default and in her May 10, 2000, declaration of disclosure of community and separate property, assets, and debts. Under section 2122, subdivision (a), Gyou Tae had to bring a motion for relief from the dissolution judgment within one year of May 18, 2004.
Gyou Tae did not move for relief from the dissolution judgment until November 14, 2005, when he brought a motion to set aside the default judgment entered against him. This was past the one-year limitations period for such a motion. Therefore the limitations period of section 2122, subdivision (a) barred Gyou Tae’s motion and the trial court’s denial of that motion was not an abuse of discretion.
2. Gyou Tae Has Not Shown the “Actual Fraud” Required by Section 2122, Subdivision (a)
Section 2122, subdivision (a) defines “actual fraud” as a ground to set aside a marital dissolution judgment “where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.”
Gyou Tae was not “kept in ignorance” by Yuki’s nondisclosure of the 28405 Rothrock Drive property in her declaration of disclosure. Gyou Tae was living in the house at that property, and later claimed to have paid a $35,000 down payment to purchase the house in 1985.
Gyou Tae was not “prevented from fully participating in the proceeding” by Yuki’s nondisclosure of the 28405 Rothrock Drive property in her declaration of disclosure. Examples of such fraud are “concealment of the existence of a community property asset, failure to give notice of the action to the other party, [or] convincing the other party not to obtain counsel because the matter will not proceed (and it does proceed).” (In re Marriage of Varner, supra, 55 Cal.App.4th at p. 140.) Gyou Tae knew of the existence of the 28405 Rothrock Drive property. He received notice of the action. He does not claim that Yuki convinced him not to obtain counsel because the matter would not proceed, and then proceeded with the dissolution action.
Instead Gyou Tae claimed that he and Yuki had an oral agreement that the divorce action was not real and just a “paper divorce” to protect assets, and that Gyou Tae could occupy the Rothrock property for life in exchange for Yuki receiving profits of the Happy Traveler Inn in Salisbury, North Carolina, and that Gyou Tae would not contest and would default on Yuki’s marital dissolution petition, since the parties were not really divorcing. The trial court, however, found that Yuki presented evidence that the 28405 Rothrock Drive property was her sole and separate property. That evidence included her declaration that she purchased 28405 Rothrock Drive in 1985 with her brother, who quitclaimed his interest in that property to Yuki in 1999. Yuki stated that since she and Gyou Tae separated (apparently in 1985), she allowed Gyou Tae to live in the 28405 Rothrock Drive residence, but she made all mortgage, interest and property tax payments, and paid for maintenance and upkeep. Yuki stated that she did this because she was living and operating a business in North Carolina, and hoped Gyou Tae would pay rent and maintain the 28405 Rothrock Drive property in her absence. Yuki asserted that Gyou Tae’s name was not and had never been on the title to 28405 Rothrock Drive, and she used separate property assets to buy that property. Yuki declared that Gyou Tae’s $35,000 check tendered to her brother near the time 28405 Rothrock was purchased was in fact partial payment of a previous, pre-marital loan from Yuki to Gyou Tae, as evidenced by unpaid promissory notes signed by Gyou Tae for $54,000.
Faced with conflicting evidence, the trial court credited Yuki and disbelieved Gyou Tae. Gyou Tae has not shown that Yuki kept him “in ignorance” or that she in some other manner fraudulently prevented him from fully participating in the proceeding. Thus Gyou Tae has not shown the “actual fraud” required by section 2122, subdivision (a) as a ground for setting aside a marital dissolution judgment.
3. The Trial Court Can Grant Relief From a Marital Dissolution Judgment Only on Grounds in Section 2122, and Lacks Discretion to Grant Such a Motion Solely Because of an Inequitable Judgment
Gyou Tae also argues that the judgment is inequitable, which provides a ground for granting his motion to set aside the default judgment. Section 2122, however, “sets out the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment.” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684.) Under section 2123, “where the only reason to set aside a judgment is that it was ‘inequitable when made,’ the trial court is affirmatively commanded not to set the judgment aside under ‘any’ law. Section 2123 reads: ‘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.’ (Italics added.)” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 33.) Thus a trial court has no discretion to grant a motion solely because of an inequitable judgment. (Ibid.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent Yuki Y. Whang.
We concur: CROSKEY, Acting P. J., ALDRICH, J.