KIETURAKIS v. KIETURAKIS

Filed 3/29/06

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Anna Kieturakis appeals from the order denying her motion to set aside the parties' marital settlement agreement and the judgment incorporating that agreement. Maciej Jan Kieturakis appeals from the subsequent order granting Anna's request for increased support, and Anna appeals from the support order insofar as it denied her attorney fees. The court reserved jurisdiction to modify its decision on the support issues in the event we conclude that the marital settlement agreement and judgment should have been set aside. Maciej acknowledges that the fee issue may need to be revisited if the support ruling is overturned. The appeals have been consolidated for briefing and decision.

The most significant issues, addressed in the published portion of the opinion, are presented in the appeal from the order declining to set aside the settlement and judgment. The marital settlement agreement was reached in a mediation, and Anna sought to undo the property division on grounds of fraud, duress, and lack of disclosure. Anna refused to waive the mediation privilege to allow disclosure of what transpired in the mediation, and thereby sought to prevent Maciej from defending himself against her allegations--charges on which the trial court found, based on the presumption of undue influence attaching to unequal marital transactions, Maciej bore the burden of proof. The trial court avoided that unacceptable result by admitting evidence from the mediation over Anna's objection, including evidence from the mediator over the mediator's objection. The mediation evidence, in large measure, defeated Anna's case. She contends on appeal that the evidence was wrongly admitted.

We hold, for a number of reasons, that Maciej should not have been made to bear the burden of proof on Anna's motion. In this regard, the presumption of undue influence in marital transactions must yield to the policies favoring mediation and finality of judgments. In view of this conclusion and in the particular circumstances of this case, any error in admitting evidence from the mediation was harmless.

In the unpublished portion of the opinion, we reject the parties' arguments against the support and fee rulings. Accordingly, we affirm the orders.

I. MARITAL SETTLEMENT AGREEMENT (A101719)

A. Statutory Background

(1) The Mediation Privilege

Admission of evidence of what has transpired in a mediation is restricted by Evidence Code section 1115 et seq.[1] Section 1119, subdivision (c) provides that all communications, negotiations, or settlement discussions among participants in the course of a mediation or a mediation consultation are to remain confidential. A â€