Marriage of Garrit

Filed 6/19/07 Marriage of Garrit CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Frederick C. Shaller, Judge. Affirmed.

Thomas Garrit, in pro. per., for Appellant.

No appearance for Respondent.

_____________________

Thomas Garrit appeals from the trial courts denial of his motion to set aside the stipulated judgment of dissolution entered in this family law action and for an order for DNA testing of the minor child born during his marriage to Tawana Garrit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas[1]and Tawana were married on September 9, 2000. Tawana gave birth to a child on July 13, 2001. The parties separated on March 22, 2004. Tawana filed a petition for dissolution March 30, 2004.

1. The Judgment of Dissolution

On December 1, 2005 Tawanas counsel served Tawanas preliminary and final financial disclosure declaration on Thomass counsel. On December 13, 2005, following a court appearance, counsel for the parties had a preliminary settlement discussion. On December 14, 2005 Tawanas counsel received a letter from Thomass attorney confirming he would prepare a written settlement proposal. On December 19, 2005 an initial draft of the judgment of dissolution was forwarded by Thomass counsel. In his transmittal letter Thomass counsel stated, In that the parties have signed and exchanged Final Declaration of Disclosures, it appears that they have complied with the provision of Family Code Section 2104, et seq. During the next several weeks negotiations continued between the parties; additional drafts of the judgment of dissolution were exchanged; and a final judgment of dissolution was signed by Thomas and his counsel on January 13, 2006 and by Tawana and her counsel on January 17, 2006.

The final judgment of dissolution, entered on March 1, 2006, awarded Tawana sole legal and physical custody of the parties minor child. Recognizing that Thomas had been unemployed since March 2004 (when he was incarcerated), all claims for child support since separation were deemed satisfied as of the date of the judgment; but the court reserved jurisdiction to award child support payable by Thomas to Tawana in the future. Both parties waived any and all rights to spousal support from the other. The judgment also included a detailed division of community, quasi-community and separate property, as well as a division of the various debts of the parties.

2. Thomass Initial Motion To Set Aside the Judgment

On March 15, 2006 Thomas, acting in propria persona, filed an ex parte application for an order to show cause to set aside the March 1, 2006 judgment of dissolution, alleging his former attorney had forced him to sign the stipulated judgment by threatening to withdraw from the case and asserting Tawana had failed to comply with the requirements for timely and complete disclosures of income and expenses and assets and liabilities. The court set the motion for hearing on March 24, 2006. On March 22, 2006 Tawana filed her responsive declaration, as well as a declaration from her counsel and supporting exhibits including the proof of service of Tawanas declaration of disclosure and material relating to the negotiation and drafting of the parties settlement agreement during December 2005 and January 2006. After receiving into evidence and reviewing Thomass application for an order to show cause and Tawanas opposition papers and hearing argument from Thomas and from Tawanas counsel, the court denied Thomass motion with prejudice, finding he had failed to show facts that establish grounds to set aside the judgment.

3. Thomass Second Motion To Set Aside the Judgment

The following court day, March 27, 2006, Thomas filed a new ex parte application for an order to show cause to set aside the March 1, 2006 order, asserting the same basic grounds contained in his March 15, 2006 application. The new application, however, also requested a DNA test for the parties child because dissolution of marriage is due to infidelity by my ex wife. The court denied the ex parte application without prejudice and set the matter for hearing as a noticed motion on May 2, 2006. Tawana again filed a responsive declaration, which emphasized the court had recently denied with prejudice Thomass almost identical request to set aside the judgment and attached copies of her prior filings in opposition to the March 15, 2006 application. With respect to the request for DNA testing, Tawana noted the child had been conceived and born during the parties marriage and argued the request for testing was inappropriate.

4. The Trial Courts Order Denying the Second Motion and the Request for DNA Testing

The court took the matter under submission following a hearing on May 2, 2006. On May 3, 2006 the court issued its minute order denying the motion and awarding Tawana $2,500 in attorney fees and costs.[2] The court initially noted, as to the request to set aside the March 1, 2006 judgment, this was Thomass second motion to set aside on the same grounds and held it had no jurisdiction to reconsider the matter under Code of Civil Procedure section 1008, subdivision (e), because Thomas had presented no new facts. On the merits the trial court reiterated its prior holding that the purported omissions in Tawanas financial disclosure documents all concerned items within Thomass knowledge at the time he signed the judgment and therefore were insufficient as a matter of law to justify setting aside the judgment, citing In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519 (failure of divorcing spouses to exchange final financial disclosure declarations does not constitute a get-a-new-trial-free card, giving either one of them the automatic right to a new trial or reversal on appeal when there is no showing of a miscarriage of justice).

With respect to Thomass claim he had signed the judgment under duress, the trial court repeated the finding it had made when it denied the earlier motion that Thomas had not proved his free agency was destroyed by his attorneys threat to withdraw, as demonstrated by his subsequent appearances in these proceedings in propria persona. To the extent Thomas added new allegations of economic duress in his second motion ‑‑ he alleged he was homeless and in desperate need of money at the time he agreed to settle ‑‑ the court, after hearing testimony from both Thomas and Tawana,[3]found the factual basis for his claim was not supported by the preponderance of the evidence. In addition, citing Glade v. Glade (1995) 38 Cal.App.4th 1441 the trial court concluded Thomas had failed to provide a satisfactory explanation for his failure to alleges these new facts at the time of his initial motion.

Rejecting Thomass request for DNA testing of the parties minor child, the court explained the child was conceived and born during the marriage. Thus, the conclusive presumption of parentage exists pursuant to Family Code section 7540. In addition, pursuant to Family Code section 7541, subdivision (b), a motion by the husband for blood tests must be filed not later than two years from the childs date of birth. In this case, the request was not filed until March 2006, almost five years after the childs birth.

Thomas filed a timely notice of appeal from the trial courts order of May 3, 2006 denying his March 27, 2007 application. No appeal has been taken from the courts March 24, 2006 denial of his initial application for an order to show cause to set aside the March 1, 2006 judgment.

CONTENTIONS

Thomas, once again appearing in propria persona,[4]contends the trial court erred by concluding the inadequacies in Tawanas financial disclosure declaration did not constitute an adequate basis for setting aside the judgment of dissolution, the evidence failed to establish he had signed the judgment as a result of duress and no new or different facts were alleged in his second motion to set aside the judgment within the meaning of Code of Civil Procedure section 1008 (section 1008). He also contends the court erroneously denied his request for DNA testing without questioning Tawana regarding her alleged extramarital affair.[5]

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion In Denying Thomass Duplicative Motion To Set Aside the Judgment

On March 24, 2006 the trial court denied Thomass motion to set aside the judgment of dissolution, concluding Thomass contention he had signed the agreement under duress and his claim Tawana had failed to comply with the Family Codes requirements for the timely and complete exchange of financial information were insufficient to justify the relief requested. Thomas did not appeal from that order. Instead, on March 27, 2006 he filed a second motion in the trial court, again arguing the judgment should be set aside because he had signed under duress and because Tawana had provided inadequate financial disclosures. Although Thomass second motion cited additional violations of the Family Code by Tawana that purportedly supported his position the judgment should be set aside and added details concerning his lack of resources to bolster his claim of duress, the two motions were, for all practical purposes, identical. Accordingly, even though not denominated a motion for reconsideration, the trial court properly concluded its authority to consider the merits of the second motion to set aside was circumscribed by the requirements of section 1008: This section specifies the courts jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section. ( 1008, subd. (e).)

Section 1008 generally requires that any motion for reconsideration be based upon new or different facts, circumstances, or law. ( 1008, subds. (a), (b); see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1098.) Even if new or different facts are provided with the renewed motion, however, the moving party must provide the trial court with a satisfactory explanation as to why he or she failed to produce the evidence at an earlier time. (Glade v. Glade, supra, 38 Cal.App.4th at p. 1457 [The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time]; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)

The trial court properly denied Thomass March 27, 2006 motion on jurisdictional grounds.[6] Thomas presented no new or different facts to support his renewed claim concerning Tawanas purported failure to provide adequate financial information, and his argument those facts somehow proved additional violations of the same Family Code provisions regarding financial disclosure cited in his original motion does not constitute an adequate basis for deciding a motion for reconsideration on the merits. (See Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027-1028.) Moreover, as the trial court correctly observed, to the extent Thomas introduced new evidence of economic duress in his second motion to set aside the judgment of dissolution, he failed to offer any explanation (let alone a satisfactory one) for his failure to include that information in the first motion.

Although we, like the trial court, need not reach the merits of Thomass arguments in support of his motion to set aside the judgment of dissolution, we agree with the trial courts conclusions the judgment may not be set aside based on procedural errors absent a showing of prejudice and any deficiencies in the financial declarations provided by Tawana were harmless. (See, e.g., Burkle v. Burkle (2006) 144 Cal.App.4th 387, 402.) To be sure, as Thomas repeatedly argues, Family Code section 2107, subdivision (d), provides, If a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error. However, as the Court of Appeal explained in In re Marriage of Steiner & Hosseini, supra, 117 Cal.App.4th at pages 526 to 528, article VI, section 13, of the California Constitute prohibits setting aside a judgment based on procedural error absent a showing the error complained of has resulted in a miscarriage of justice. The California Constitution trumps any conflicting provision of the Family Code. . . . [] To the degree, then, that section 2107, subdivision (d) is read for the proposition that a judgment must be set aside or a new trial granted solely because of a failure to exchange final declarations of disclosure, it is not consistent with our states Constitution. (In re Marriage of Steiner & Hosseini, at p. 527; accord, In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 92 [showing of prejudice required notwithstanding statutory language]; see also Fam. Code 2121, subd. (b) [In all proceedings under this chapter [concerning relief from judgment], 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].)

In addition, to the extent the trial court weighed conflicting evidence and assessed credibility in rejecting the purportedly new factual basis for Thomass claim of economic duress presented with his second motion to set aside the judgment, we must defer to the trial courts findings. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 365.) On review, all conflicts in the evidence are drawn in favor of the judgment. [Citation.] We may not reweigh the evidence or determine credibility. (In re Marriage of Friedman (2002) 100 Cal.App.4th 65, 71; see In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 162 [credibility is within trial courts discretion].)

2. The Trial Court Properly Denied Thomass Request for DNA Testing

Citing Family Code section 7551, authorizing the trial court to order genetic testing in a proceeding in which paternity is a relevant fact,[7]Thomas argues the trial court erred in refusing to credit his evidence that Tawana had been unfaithful during their marriage or to ask her about her alleged infidelity, which Thomas asserts proved he might not be the father of the child born during the marriage.

Thomas does not dispute, as the trial court found, the child was conceived and born during his marriage to Tawana; nor does he argue he was not cohabiting with Tawana when the child was conceived or contend he was impotent or sterile. Accordingly, under Family Code section 7540 the child is conclusively presumed to be a child of the marriage. Although this conclusive presumption may be challenged based on genetic testing conducted pursuant to Family Code section 7551, Family Code section 7541, subdivision (b), requires the presumed father (Thomas) to request such testing not later than two years from the date of the childs birth. Because Thomass motion was filed more than four and one-half years after the childs birth, the trial court properly denied the request.

DISPOSITION

The order denying the motion to set aside judgment and for DNA testing is affirmed. Because no respondents brief was filed, the parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J. ZELON, J.

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[1] As is customary in family law proceedings, we refer to the parties by their first names, not out of disrespect, but for clarity and convenience. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

[2] The court stayed its order for attorney fees and costs until [Thomas] files any other motion to set aside or appeal from the judgment in this matter. Once [Thomas] files any such motion, the fees will be due without further order of this court.

[3] In addition to stating he was homeless, Thomas testified he had limited clothing, no vehicle and was in need of immediate medical attention. He asserted he had signed the judgment of dissolution only because he feared, with no legal representation, he would receive nothing if the matter went to trial. Tawana testified at the hearing that, during the period Thomas claimed to be homeless, he was in fact living in the home of his brother pursuant to the terms of his court-ordered probation, which was for a period of five years, drove a car lent to him by his brother and always appeared well-dressed.

[4] Tawana, also appearing in propria persona, has submitted a letter to this court in which she waives her right to file a respondents brief on the merits.

[5] Thomas also complains the trial court conducted its own legal research before ruling on his motion, a frivolous claim that requires no substantive response. (See generally Ferguson v. Keays (1971) 4 Cal.3d 649, 658 [we emphasize that the appellate courts possess the further inherent power to summarily dismiss any action or appeal which has as its object to delay, vex or harass the opposing party or the court, or is based upon wholly sham or frivolous grounds].)

[6] We review the trial courts denial of a motion for reconsideration for abuse of discretion. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027.)

[7] Family Code section 7551 provides, In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to genetic tests. . . .