Filed 11/5/18 Marriage of Jasnosz CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Paul Jasnosz appeals a judgment terminating his marriage to Sharon Jasnosz. Appearing in propria persona, he contends that due in part to his incarceration he was denied meaningful access to the courts and that the trial judge exhibited bias against him because of his incarceration. He also contends the court erred in finding that there was no community property to divide. We find no error and, therefore, we shall affirm the judgment.[1]

Background

The parties were married in December 1990. On April 8, 2016, Sharon filed a petition for dissolution of marriage. Her petition states that there are no minor children and no community assets or debts to divide. In his response, Paul challenged Sharon’s allegation that there were no community assets. He listed the purported community assets, requested an investigator be authorized to ascertain the whereabouts of any missing assets, and suggested that should it be determined that Sharon had improperly disposed of any community assets, certain separate property claimed by Sharon should be designated his separate property.

Between June 2016 and April 2017 the parties conducted various discovery, including submission of income and expense statements and declarations regarding their community and separate property.

On May 4, 2017, Paul filed a motion requesting spousal support, equitable distribution of the community assets, return of his separate property, and attorney fees. On June 7, Paul’s motion was denied.

On August 8, 2017, Sharon filed a motion requesting that the matter proceed to judgment. She repeated her claim that there was no property to divide because all their community property was limited to used furniture and furnishings and older and non-functioning automobiles that had been used far beyond resale value. A hearing was set for September 13.

Two days before the hearing, on September 11, 2017, Paul filed a request to appear by telephone at the hearing. On September 13, Paul did not appear and the court entered a judgment terminating the marriage. The judgment states that there are no community property assets or debts to be divided. Notice of entry of judgment was filed and served by mail the following day. On November 6, Paul filed a notice of appeal from the judgment.[2]

In Paul’s designation of the record on appeal, he lists a number of documents that were signed and purportedly mailed between August 27 and September 10 but that are not found in the court file or register of actions including, among many others, a response to Sharon’s motion for judgment, numerous requests to postpone the September hearing, and a motion to compel further discovery. Paul was granted leave to augment the record with these and other documents.[3]

Discussion

Paul contends that the notice of hearing was not timely served and that as a result of the delay in service and the court’s failure to continue the September 13 hearing, he was denied meaningful access to the courts in violation of his constitutional rights. He also contends that he was prejudiced by the trial judge’s bias against him based on his incarceration. Finally, he contends that the finding that there is no community property is contrary to the evidence he submitted. We find no error.

In dissolution proceedings, once respondent has entered an appearance by filing a response to the petition, a default judgment cannot be entered. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863.) However, the case may proceed as an uncontested matter without default “where respondent, having entered an appearance, fails to appear for trial after the giving of proper notice of trial.” (Cal. Practice Guide: Family Law (The Rutter Group 2018) ch. 12-A, § 12:10.) “Before the court may hear fact issues and enter judgment in a nondefaulting party’s absence—i.e., pursuant to an uncontested hearing (where a party has appeared previously of record but has not appeared for the hearing)—‘proof shall first be made to the satisfaction of the court’ that the absent party has had 15 days’ notice of the trial.” (Id. at § 12:16, citing Code Civ. Proc., § 594, subd. (a).)

Here, the record shows that the notice of hearing was filed on August 8 and mailed on August 19. Paul contends the notice was received by the prison mailroom on August 24. The augmented record submitted by Paul demonstrates that he had actual notice of the hearing by August 27. Given that the hearing was held on September 13, as noticed, the jurisdictional notice requirements were met.

Paul’s argument that he was deprived of meaningful access as a result of the court’s failure to continue the hearing is unpersuasive. He argues that due to his incarceration and the prison being on “lockdown” he was unable to timely access the “law library or legal materials” which caused him “not to be able to access the 9/13/2017 hearing.” As noted, the record does not indicate that Paul’s motion was received or considered by the court before entry of judgment. The moving papers included in Paul’s augmented record are not file stamped and do not appear in the register of actions. Nonetheless, it is clear from Paul’s declaration attached to his motion that there was no good cause for a continuance and that the failure to grant a continuance did not deprive Paul of meaningful access to the court.

In his declaration, Paul explained that due to the prison lockdown he was unable to access the law library to obtain the forms necessary to submit his response to Sharon’s motion until September 3. He acknowledges, however, that his request for telephonic appearance was mailed on September 4 and his response to Sharon’s motion was drafted and mailed on September 5. Paul offers no justification for a continuance beyond his initial inability to obtain the necessary forms. Accordingly, his declaration does not state good cause for a continuance.

Contrary to Paul’s argument, the record reflects no judicial bias. Paul faults the court for repeatedly referencing his incarceration at the June 7 hearing, but the court’s comments were properly offered by way of explanation for the denial of his request for spousal support and return of his property.

Finally, substantial evidence supports the court’s finding that there was no community property to divide. While Paul claims there was approximately $42,000 in community assets at the time of his incarceration, the trial court was entitled to credit Sharon’s statements that any community property in her possession at the time of Paul’s arrest had no value.

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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Siggins, P.J.

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Jenkins, J.

A152884