Fettig v. Linnevers

Filed 8/9/07 Fettig v. Linnevers CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Reva Goetz, Commissioner. Affirmed and remanded.

Thomas A. Linnevers, in pro. per., for Defendant and Respondent.

Law Offices of Barry Fischer and Barry Fischer, for Appellant and Petitioner.

________________

INTRODUCTION

In this family law case, Laura Fettig sought to set aside a dissolution judgment. After Fettigs motion for relief was denied, the trial court also denied her motion for reconsideration. We affirm and remand solely on the issue of attorney fees on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

1. The marriage and the stipulated judgment

Fettig and Thomas A. Linnevers were married on May 28, 1994. Seven and one-half years later, they were separated on November 3, 2001. The parties have one child from the marriage, a daughter born in July 1996.

It appears that on September 17, 2002, Fettig filed a dissolution petition.[1]

At the mandatory settlement conference held on July 2, 2004, the parties with the assistance of their attorneys, reached a settlement on all issues, except for child support and spousal support which were reserved. A stipulated judgment of dissolution was filed on July 12, 2004. It was executed by the parties. In addition to other issues, the parties agreed to the distribution of all community property, including possession of the family residence. The parties agreed that the residence would be purchased by Fettig, who would make a $175,500 equalizing payment to Linnevers. Other assets, such as cars, bank accounts, and furnishings were also divided.

On July 12, 2004, a hearing was held. The trial court questioned Fettig and Linnevers about the stipulated settlement. Fettig testified that she signed the stipulated judgment, which she had read, and understood. She additionally testified that she did not need any additional time to determine if she wished to enter into the agreement, which she accepted.

The parties marital status ended on July 2, 2004.

2. The trial and the judgment on reserved issues

A trial on reserved issues was held on July 22, 2004. The parties acknowledged that Fettig had physical problems, including back problems that had required a number of surgeries. The focus of the trial was the effect of Fettigs physical injuries on the length of time for which Linnevers would be ordered to pay spousal support.

Fettig testified about her education and work experience, which included an associate of arts degree in fashion merchandising and a bachelors degree from Ohio State University. Fettig described her physical and medical condition and history, her medications, and her employment history. This included her back problems and that she was also diagnosed with Epstein‑Barr, Hashimotos thyroiditis, and possibly rheumatoid arthritis. Fettig testified she was receiving disability and had difficulty working because she had problems sitting and standing. When asked if she had problems taking pain medication, she testified: Yes. I do not take very many medications because Im allergic to many medications, and it seems to have more of a worse effect than if I dont. So I do not take medication unless absolutely necessary. Fettig was asked, When you suffer from severe pain and you cant take pain medication, what do you do? To which she responded, I lay down on a board or the floor. Further, she testified that on occasion she might have to lay on the floor for hours. Fettig acknowledged that as part of the settlement agreement, she owed Linnevers $175,500 as an equalizing payment. This payment would enable her to keep the family home.

In her memorandum of points and authorities and during the trial, Fettig argued that in light of her physical condition, she should receive spousal support for a lengthy period of time and the trial court should not terminate jurisdiction over spousal support. Fettig did not raise issues that had been resolved in the stipulated agreement, such as the division of community property.

In his trial brief, Linnevers noted that the parties reached a settlement that provides for [Fettig] to buy [Linnevers] out of his interest in the family residence at a significantly discounted value of $650,000[.] ([Linnevers] has obtained valuations for the family residence between $690,000 on the low end and $800,000 on the high end.) Linnevers argued that he should not be responsible for an open-ended spousal support order because his marriage to Fettig was short, Fettig had the education, background, and ability to work, and pursuant to Family Code section 4320, spousal support should not be open-ended.

At the end of the hearing, the trial court terminated the parties marital status and took the matter under submission.

On August 4, 2004, the trial court issued its tentative decision. In the tentative decision, the trial court noted that the primary reason that the Support Orders are in issue . . . [is due to] the health difficulties faced by [Fettig]. The trial court stated that Linnevers had been paying spousal support for two years, nine months in an amount that exceeded the guidelines. The trial court discussed all factors to be considered in determining the amount and duration of spousal support (Fam. Code,  4320) including the health of the parties.[2] The trial court listed Fettigs surgeries and her other medical problems. The trial court indicated that Linnevers had urged the court to limit the award of spousal support to one-half the length of the marriage such that it would end on July 31, 2005 and to terminate jurisdiction on that date. However, the trial court found that it would be reasonable for [Linnevers] to pay permanent spousal support in the amount of $1,100 per month until April 30, 2006. . . . [] On May 1, 2006, spousal support will be reduced to zero. [] Jurisdiction over the issue of spousal support will terminate on April 30, 2007. Additionally, the trial court ordered Linnevers to pay $853 per month in child support. The trial court requested the parties submit objections to the tentative decision. If no objections were filed, then Linneverss counsel was to prepare a final judgment.

Linneverss counsel prepared a stipulated judgment based on the July 12, 2004, settlement, and additionally prepared a further judgment on reserved issues. On November 3, 2004, Linneverss counsel then sent both documents to Fettigs counsel. Linneverss counsel telephoned Fettigs counsel. Fettigs counsel stated that he would speak to Fettig and telephone if there were concerns. Fettigs counsel did not thereafter contact Linneverss counsel. On November 22, 2004, Linneverss counsel submitted the documents to the trial court for entry.

On March 17, 2005, Linnevers filed a motion requesting the trial court enter the stipulated judgment and the judgment on reserved issues.[3]

On November 14, 2005, the trial court entered a further judgment on reserved issues, adopting with minor revisions, the document submitted by Linnevers. The trial court ordered that the community property be divided as had been agreed to by the parties in their July 2004 stipulation. In part, the trial court ordered Fettig to pay Linnevers $175,500 as an equalizing payment for the home she would keep, that was valued between $690,000 and $800,000. The judgment on reserved issues also reflected that the trial court had considered the factors listed in Family Code section 4320 and ordered Fettig to receive spousal support in the sum of $1,100 per month until April 30, 2006. On May 1, 2006, spousal support was to be reduced to zero and jurisdiction over spousal support was to terminate on April 30, 2007. Counsel for Fettig and counsel for Linnevers signed the further judgment on reserved issues as approved as to form. The trial court executed the further judgment as its order.

Notice of entry of judgment was served on November 14, 2005.

3. The notice of appeal

On January 11, 2006, in propria persona, Fettig appealed from the judgment after court trial.

4. The motion to set aside the November 14, 2005, judgment.

On May 22, 2006, the trial court heard Fettigs order to show cause seeking attorney fees, a reinstatement of spousal support, and to set aside the November 14, 2005, judgment, which she filed in propria persona. Fettig argued [g]rave errors . . . were made due to misconduct of [Linnevers] and his counsel[.] Fettig claimed she was not capable of working. Fettig argued misconduct by Linnevers and his counsel resulted in an unequal distribution of community property, and in particular the value of the family residence. Fettig stated she was pressured into accepting the settlement offered by Linnevers, which included an unverified valuation for the residence.[4]

Linnevers opposed the motion. He argued it was not appropriate to set aside the judgment because Fettig did not meet the requirements of Code of Civil Procedure section 473 or Family Code section 2122.

On May 22, 2006, the trial court denied Fettigs motion. Notice of the trial courts ruling was served by mail on May 25, 2006. The trial court found that Fettig had not alleged any facts sufficient for this Court to vacate the Stipulated Judgment or the Further Judgment On Reserved Issues, pursuant to Code of Civil Procedure  473, Family Code  2120, or any other statutory or case authority.

5. The motion for reconsideration

On June 9, 2006, attorney Barry Fischer filed a substitution of attorney form, becoming attorney of record for Fettig.

On June 9, 2006, Fettig, through her new attorney of record, filed a motion for reconsideration (Code Civ. Proc.,  1008) of the order denying the motion to set aside the judgment. The motion cited Family Code section 2120 et seq. and Code of Civil Procedure section 473. Fettig argued that the November 2005 judgment should be set aside because it was ambiguous, unreasonable, and because of her diminished capacity. She sought rescission. Fettig argued, for the first time, that the November 2005 further judgment contained ambiguous terms of which she was unaware. Fettig asserted that she did not sign the further judgment and the medication she had taken during the dissolution proceedings rendering her incapable of making sound decisions. According to Fettig, she lacked the proper mental state when she relinquished community property rights and spousal support in the stipulated judgment and received an inappropriate spousal support order. Fettig attached her declaration in which she declared that she was in constant pain, under morphine intoxication during the dissolution proceedings, and did not understand what was happening.[5]

Linnevers opposed the motion. Linnevers argued the reconsideration motion was untimely under Code of Civil Procedure section 1008, there was no proof Fettig was under the influence of medications when she entered into the stipulated judgment, and any medical evidence submitted by Fettig in the trial court did not show that medications impaired her judgment. Linnevers asserted Fettig was capable of working, as demonstrated by a computer search he had done that showed Fettig was working for an online radio show called Healthy Trends and in the course of two months she had made motivational presentations in New York, San Francisco, and Spokane Washington.

Hearing on the reconsideration motion was held on July 17, 2006. In argument, Fettigs counsel stated that Fettig did not have any memory of the terms of the judgment, nor did she remember granting her counsel the authority to sign the judgment.

The trial court denied the motion for reconsideration with prejudice. The trial court rejected Fettigs vagueness argument, noting that the parties had determined the value of the residence in their discussions and settlement of the property issues, including the equalizing payment. The trial court stated in part, This was a very difficult case for the court. The court very much appreciated Miss Fettigs physical conditions and awarded spousal support that was far in excess of what would normally be required in a different relationship, and that was actually one of the objections . . . filed [by] Linnevers, so this has been addressed. And there has been nothing submitted to the court that rises either to the level of newly discovered evidence or evidence that couldnt have and should have been presented at the time of trial, so Im not in a position to grant this motion. The trial court stated that it had examined its prior orders and findings. The trial court stated it did not see any discussion of medication causing a disability, although facts were presented regarding Fettigs disability and back injuries. The trial court stated that Fettig was coherent during the trial. The trial court found that there was no evidence presented that [Fettig] was incapacitated due to medication that she was taking. . . . [T]hats clearly something that could have been brought before the court and to the courts attention at the time. Its not something thats newly discovered . . . . The trial court held that the motion for reconsideration failed to present any new and different facts.

DISCUSSION

1. There are no errors necessitating reversal of the November 14, 2005, judgment

We address Fettigs arguments seriatim.

a. Fettig contends that the November 14, 2005, judgment is ambiguous because it states that the family residence was valued between $690,000 and $800,000. She suggests the judgment had to include a finite value for the residence to assure an equal division of community property. However, this valuation range for the home was irrelevant to the issues decided by the trial court. Rather, it was part and parcel of a global settlement of property issues by Fettig and Linnevers when they freely divided the community property, including that Fettig would make an equalizing payment to Linnevers. The statement in the judgment does not require setting aside the judgment as parties are free to divide their community property in a means agreeable to them. (Fam. Code,  2550.)

b. The November 14, 2005, judgment on reserved issues was signed by counsel for the parties as approved as to form. Fettig argues the judgment must be reversed because she did not execute it. Fettigs argument misconstrues the facts. The November 2005 judgment incorporated into one document significant terms of the stipulated judgment and also detailed the trial courts findings and orders on the litigated reserved issues, spousal and child support. There was no need for Fettig to execute the November 2005 judgment.

If, by her argument, Fettig is suggesting that she did not have the mental capacity to read or understand the November 14, 2005, stipulated judgment, the facts are to the contrary. There was no evidence presented in the trial on reserved issues that Fettigs medication incapacitated her. Rather, Fettig testified that she took very few medications, because she was allergic to them.[6]

c. Family Code section 2120 et seq. provide specific statutory grounds to set aside a family law judgment. Section 2125 states that the trial court has the discretion to set aside the entire judgment, if necessary, for equitable considerations. Section 2122, subdivision (e) permits setting aside a family law judgment based upon mistakes of law and fact, whether the mistake be mutual or unilateral. Family Code section 2124 provides: [t]he negligence of an attorney shall not be imputed to a client to bar an order setting aside a judgment, unless the court finds that the client knew, or should have known, of the attorneys negligence and unreasonably failed to protect himself or herself. Section 2124 means that, a party seeking to set aside a judgment may not be barred from relief simply because that partys attorney was in some respect negligent. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 686.)

Based upon Family Code sections 2125, 2122, subdivision (e), and 2124, as well as Code of Civil Procedure section 473, Fettig contends the judgment on reserved issues must be set aside because equity demands that result and also because there was a mistake warranting relief.

The basic premise of all of these arguments is that the medication Fettig was taking rendered her incapable of effectively participating in the course of the proceeding. All of these arguments are based on Fettigs claim that she was in considerable pain that caused her to relinquish community property rights and to give her counsel authority to act in ways contrary to her best interests. This claim merely re-packages the argument we have already discussed. There was no evidence before the trial court that medications incapacitated Fettig. Rather, the evidence was to the contrary.

d. Fettig claims the further stipulated judgment improperly discontinued spousal support on May 1, 2006, despite her continuing mental disability, her financial circumstances, and her physical condition. The length of the spousal support order was the major focus of the hearing on July 12, 2004. Contrary to Fettigs suggestions, however, the record reflects that the trial court carefully evaluated all facts relevant to this issue. The tentative decision began by stating that Fettigs health was the primary reason for the contested hearing. It recited all evidence relevant to this issue, including Fettigs physical condition. The tentative decision demonstrated that the evidence on Fettigs health had been considered, but that the trial court had rejected Fettigs plea for an extended spousal support order. Again, in the trial courts statement denying the reconsideration motion, the trial court explicitly stated it had examined thoroughly the facts and positions of the parties and very much appreciated Miss Fettigs physical condition and thus awarded her spousal support in excess of the norm. The trial court also noted that Fettig was coherent during the trial.

We agree with the trial court that if there was evidence that medications affected Fettigs ability to participate and understand the dissolution proceedings, such facts should have been presented at the time of trial, not belatedly in support of her reconsideration motion.

We note, however, that had Fettig argued in the trial court that she was not capable of understanding the proceedings, such arguments would have directly contradicted Fettigs clear and articulate testimony that she was not taking many pain medicines because she was allergic to them.

Fettigs citation to In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195 does not alter our conclusion. In Heistermann, the original spousal support order did not include a termination date. Heistermann held that the trial court erred in granting the husbands subsequent motion to set a specific termination date because the husband had not met his burden to show change of circumstances. (Id. at pp. 1201-1202.) Heistermann is not relevant to the issues before us.[7]

2. Fettig has not shown that we have jurisdiction to address the rulings denying her motion to set aside the judgment and denying her motion for reconsideration

Fettig contends the trial court should have granted her motion to set aside the judgment and her motion for reconsideration. Fettig again asserts that her mental incapacity provides the only explanation for her acceptance of the terms in the stipulated judgment, which according to Fettig, resulted in an unequal division of the community property.

We begin by noting that Fettig filed her notice of appeal from the November 14, 2005, judgment. There is no notice of appeal filed after the denial of her motion to the motion to set aside the judgment or after the denial of Fettigs motion for reconsideration. Thus, it appears the only issues we can address are those directly attacking the November 14, 2005, judgment. Fettig has presented no authority demonstrating we have the jurisdiction to address the rulings on the post-trial motions.[8]

If we were to consider the issue Fettig raises with regard to both motions, we would find it unpersuasive. In the motion to set aside the judgment, Fettig did not suggest medications rendered her incapable of participating in, and understanding, the proceedings. Any facts on this issue were raised for the first time by Fettig in her motion for reconsideration. However, the trial court properly disregarded this evidence as it was not newly discovered. If Fettig is suggesting that her attorneys negligence caused her to make mistakes, this is not the proper forum to do so.

3. We remand to the trial court on the issue of attorney fees on appeal

After oral argument, Fettig filed in this court a motion for attorney fees pursuant to Family Code section 2030. In evaluating any motion for attorney fees on appeal emanating from a family law proceeding, the trial court must consider all appropriate factors, and if the award is just and reasonable. This includes the respective income and needs of the parties, if the appeal was taken in good faith, and if there were reasonable grounds for the award. (Fam. Code, 2030, 2032; In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 258; In re Marriage of Jovel (1996) 49 Cal.App.4th 575, 586.)

While we cannot conclude that the appeal was taken in bad faith or there were no reasonable grounds upon which it was based, this conclusion is not easily reached. The confusing and superficial briefs submitted on Fettigs behalf did not adequately frame or address the issues, raised issues that had not been addressed in the trial court, and were tangentially connected to, or unsupported by, authority. This forced Linnevers and the court to expend unnecessary time.

The trial court is in the best position to evaluate the other factors. Thus, we will remand the matter to the trial court solely on the issue of attorney fees on appeal. In addressing the issue of attorney fees on appeal, the trial court is first to determine if attorney fees on appeal are appropriate, considering all pertinent factors, and if so, the trial court is then to determine the appropriate amount of such an award.

DISPOSITION

The November 14, 2005, judgment on reserved issues is affirmed. The matter is remanded to the trial court solely for its determination as to whether attorney fees on appeal should be awarded, and if so, the amount thereof. Linnevers is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] It appears that on February 4, 2004, the trial court granted Fettigs Borson motion. (In re Marriage of Borson (1974) 37 Cal.App.3d 632, 637-638.) Fettig states she has never recovered the sums awarded to her.

[2] Family Code section 4320 reads in part:

In ordering spousal support under this part, the court shall consider all of the following circumstances:

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(2) The extent to which the supported partys present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting partys earning capacity, earned and unearned income, assets, and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties.

(i) Documented evidence of any history of domestic violence, . . . .

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a reasonable period of time for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the courts discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

(n) Any other factors the court determines are just and equitable.

[3] On March 17, 2005, Fettig filed an application requesting modification of child support, objecting to the cut-off date for spousal support, and objecting to the judgment prepared by Linneverss counsel. On the same date, Fettig filed a motion for reconsideration of child and spousal support orders. The premise of all of these pleadings was that recent case authority had held that supplementary security income must be excluded in the calculation of child and spousal support. Thereafter, Fettig submitted to the trial court, by a request for judicial notice, a September 2002 decision from social security administration showing she was disabled. On appeal, the parties have not directed us to the trial courts rulings on these pleadings. Also, the parties have not raised any appellate issues with regard to these documents.

[4] The copy in the appellate record is not conformed. The documents are dated April 15, 2006. However, Fettig represents that the motion was filed on May 22, 2006.

[5] Fettig made the following statements in her declaration: I have constant inflammation on my back due to [a] cyst, and I have to take medication to subside the pain and swelling. [] . . . When I take medication, I am constantly tired and unfocused. [] . . . I have [a] difficult time concentrating and my memory is limited. [] . . . During my marital dissolution proceeding, I was under the morphine intoxication when I was required to take morphine for my pain. [] . . . [] The entire year of 2005, I was under the medication to recover from my surgery which took place in 2002. [] On . . . November 14, 2005, the further judgment was signed while I was still under medication. I was in a diminished capacity. I did not understand what was happening. I did not understand the terms and conditions of the judgment. My attorney did not fully explain to me the terms and conditions. [] . . . I do not have any memory of details or process of reading and understanding . . . any of the terms in the signed judgment. [] . . . I did not agree to the term in the Judgment dated on November 14, [2005], that indicates [I am] to purchase [Linneverss] interest in the family residence, valued at between $690,000 and $800,000.

[6] We need not address Fettigs claim that the stipulated settlement cannot be enforced because it was made outside the courts presence. Both parties executed the document and in the hearing held on July 12, 2004, Fettig testified that she knowingly entered into the stipulated settlement.

[7] Fettig contends the trial court erred in terminating jurisdiction over spousal support on April 30, 2007. In that this issue is raised for the first time in the reply brief, we will not consider it. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351.)

[8] On page 7 of Fettigs opening brief, she states that she is appealing from the denial of her reconsideration motion and from the denial of her motion for relief. On page 18 of her opening brief, however, Fettig states that she is appealing from the judgment.