Mariage of Marquez

Filed 5/9/06 Mariage of Marquez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.

Jesus Marquez (Husband) petitioned to dissolve his 26-year marriage to Selma Marquez (Wife). After a contested hearing, the court found that two parcels of real estate, one located in Mexico (the Mexico property) and the other located in San Diego (the San Diego property), were community property. The judgment concluded Wife was entitled to one-half of the rental proceeds and equity in the Mexico property, and to one-half of the community's equity in the San Diego property. Husband moved to vacate the judgment on the grounds that (1) Wife did not file the schedule of assets required by Family Code section 2104 et seq.^[1] and (2) the absence of an indispensable party precluded the court from dividing the equity in the San Diego property. The trial court denied Husband's motion. Husband contends on appeal that the trial court was required to grant his motion to vacate the judgment, and there is no evidence to support the finding the Mexico property was community property.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Trial

In the summer of 2004 Wife filed her in propria persona response to Husband's petition for dissolution and attached a schedule listing numerous items of property, including the Mexico property. Although the schedule did not expressly characterize these items as community, quasi community or separate property, it did include her proposed valuation for and division of some of the items of property. The schedule did not value the Mexico property or contain a proposed division of that property.

The matter was scheduled for a contested trial on November 5, 2004. At trial, Husband asserted the Mexico property was his separate property. He testified that his father provided the land and paid for the materials and labor to construct the house. Wife contested Husband's claim, testifying that Husband worked for his father during the period the house was being built and did not receive a set salary for his labor, but instead was compensated by having his father fund the land and construction costs, and both she and Husband worked on the house. The parties also contested whether a $20,000 down payment, used to purchase the San Diego property, was community property, or was a gift from Husband's father to the community, or was a gift intended to be Husband's separate property.

The court's November 5 ruling found both the Mexico property and the $20,000 down payment for the San Diego property were community property. The court ordered the Mexico and San Diego properties be appraised as of July 13, 2004, for purposes of determining the equity in those properties, and the necessary equalization payment to be made to Wife.

B. The Posttrial Motion

In January 2005, Husband moved under section 2120 to vacate the November 5, 2004 ruling. Husband's counsel asserted she had been taken by surprise by Wife's claim of an interest in the Mexico property because Wife did not file a preliminary or final declaration (§§ 2104, 2105) claiming the Mexico property was community property, and counsel had understood (based on pretrial discussions with Wife) that Wife would not claim any interest in the Mexico property. Husband's motion asserted the trial court was required to set aside its judgment because (1) section 2107, subdivision (d) mandates a judgment be set aside when a party does not comply with the disclosure requirements of section 2104 and 2105, and (2) the judgment was void for lack of jurisdiction because a third party with a record interest in the San Diego property was an indispensable party who had not been joined in the dissolution proceedings. The court denied Husband's motion to vacate and this appeal followed.

ANALYSIS

A. The Section 2107 Claim

An order denying a motion to vacate a judgment under section 2120 is an appealable order. (In re Marriage of Jones (1998) 60 Cal.App.4th 685, 689.) An appellate court will reverse an order denying a motion to vacate only if the trial court abused its discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)

Husband notes section 2107, subdivision (d) provides that when a judgment is entered under circumstances where " the parties have failed to comply with all disclosure requirements of [sections 2104 and 2105], the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error." Under this statute, Husband asserts Wife's failure to file the schedule of assets required by sections 2104 and 2105 mandated the court grant his motion to vacate the judgment.

In In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, the court attempted to reconcile section 2107, subdivision (d) with Article VI, section 13 of the California Constitution (providing no judgment shall be reversed absent a miscarriage of justice) as well as other provisions of the Family Code dealing with the disclosure requirements (including §§ 2105, subd. (c) and 2107, subd. (a)). The Steiner court held " the failure on the part of two divorcing spouses [to comply with the disclosure statutes] does not constitute a 'get-a-new-trial-free" card, giving either one of them the automatic right to a new trial . . . when there is no showing of a miscarriage of justice." (Steiner, at p. 522.)

Here, neither party complied with the disclosure requirements. Wife never served a final (§ 2105) declaration of disclosure,^[2] and Husband did not serve the final declaration of disclosure until after trial (§ 2105).^[3] Husband's failure to comply with the requirements of section 2105 appears to preclude him from invoking the remedies provided by section 2107. (In re Marriage of Steiner and Hosseini, supra, 117 Cal.App.4th at pp. 527-528.) Moreover, even assuming a noncomplying party can seek relief under section 2107, subdivision (d), he or she must at a minimum show prejudice by the failure to receive the final declaration of disclosure (ibid.) by showing it is reasonably probable he or she would have obtained a more favorable result had the final declaration of disclosure been received. (See, e.g., In re Marriage of Jones, supra, 60 Cal.App.4th at pp. 694-695.) Husband argued below that he was prejudiced because he could have produced additional " witnesses and documents" to support his claim the Mexico property was separate property. However, Husband made no written offer of proof as to what additional information would have been produced (cf. Hewins v. Walbeck (1943) 60 Cal.App.2d 603, 610 [party seeking relief from judgment based on surprise or mistake has burden to show right to relief and satisfies burden only by producing evidence supporting basis for relief]), or that the new evidence would have altered the court's decision to credit Wife's testimony and reject Husband's testimony concerning the character of the Mexico property.^[4] On this record, Husband has not shown it is reasonably probable he would have obtained a more favorable result if he had received the final declaration of disclosure, and therefore denial of relief under section 2107, subdivision (d) was not an abuse of discretion.

B. The Indispensable Party Claim

Husband argues the trial court was required to vacate the judgment because Mr. Gonzalez had a joint tenancy interest in the San Diego property. Husband asserts the judgment could not order the sale of the San Diego property because Mr. Gonzalez was not joined in the action.

We agree the court would not have jurisdiction to order partition of the San Diego property without joinder of Mr. Gonzalez. (See, e.g., Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2005) ¶¶ 8:957-8:959, p. 8-266.6.) However, the judgment did not order partition by sale of the San Diego property. Instead, the judgment declared the interest held by Husband and Wife in the San Diego property was community property, ordered it appraised as of July 13, 2004, and found each party was entitled to one-half of the equity held by the community. Although the judgment further provided the parties were to cooperate to find a broker to appraise the property " if there is to be a buyout of" Wife's interest in the property by Husband, it did not order the property sold, but instead appears to have anticipated the parties would divide their interest in the property by Husband receiving the community's interest in the San Diego property in exchange for Husband making an equalization payment to Wife. (See, e.g., In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 754.) Because the judgment did not expressly order a sale of the San Diego property that would necessitate joining Mr. Gonzalez as an indispensable party, Husband's contention is without foundation.

C. Sufficiency of Evidence

Husband finally contends the trial court's finding that the Mexico property was community property is not supported by the evidence.

Where, as here, the trial court's findings of fact are challenged on a civil appeal, we are bound by the " elementary, but often overlooked[,] principle of [law] that . . . the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) " If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers, at p. 874, italics omitted.) The testimony of a single credible witness, even if he or she is a party, may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

The Mexico property was obtained during the marriage, raising a presumption it was community property. (In re Marriage of Mix, supra, 14 Cal.3d at p. 610-611.) Although that presumption may be overcome (ibid.), Wife testified Husband worked for his father during the marriage and, in lieu of regular wages, his father funded the land and construction costs of the Mexico property. This testimony, which the trial court credited over Husband's contrary claims, sufficed to support the finding that the Mexico property was community property. (See Downer v. Bramet (1984) 152 Cal.App.3d 837, 844 [land obtained as ostensible gift from Husband's employer after separation, if in fact given as remuneration for services rendered to employer during marriage, was community property].)

DISPOSITION

The order denying the motion to vacate the judgment is affirmed. Respondent is entitled to costs on appeal.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All statutory references are to the Family Code.

^[2] Wife apparently filed the preliminary declaration of disclosure by appending it to her response to the dissolution petition. (See § 2104, subd. (a).)

^[3] Under section 2105, the final disclosure statement must be served on the other spouse not later than 45 days before trial. (Id. at subd. (a).) Husband's proof of service demonstrates he served Wife by mail on the day of trial (November 5, 2004), after the statutorily mandated deadline.

^[4] Husband suggests, for the first time on appeal, that he would have produced his parents to testify the Mexico property was a gift to him as his separate property. However, the court was not informed of this evidence, and its refusal to grant a new trial based on undisclosed information cannot be deemed an abuse of discretion. Moreover, even had Husband disclosed this proposed evidence, it would be largely duplicative of Husband's testimony as to the character of the Mexico property, and the court had already rejected his testimony as unconvincing.