Marriage of Perez

Filed 8/6/07 Marriage of Perez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, William J. Howatt, Jr., Judge. Affirmed.

Lydia Perez appeals from an order setting aside a default judgment entered against Basilio Perez that dissolved their marriage and divided their community assets and debts. She contends the trial court erred when it set aside the default judgment without engaging in the fact-finding analysis of Family Code sections 2121 and 2125. (All undesignated statutory references are to the Family Code.) We conclude that the record supports relief under Code of Civil Procedure section 473 and affirm the order on that ground.

FACTUAL AND PROCEDURAL BACKGROUND

Lydia and Basilio were married in 1984 and separated about 15 years later, after having one child who is now an adult. On November 7, 2005, Lydia petitioned for dissolution of the marriage and the court issued an order to show cause, with the hearing set for December 12, 2005. Basilio appeared at the hearing without counsel and the court minutes indicate that the trial court directed him to file "responsive pleadings" and continued the hearing to February 1, 2006. (All subsequent dates are in 2006 unless otherwise indicated.) On May 9, Lydia's counsel mailed Basilio a request to enter default and the court entered the default the following day. On May 26, the court entered a default judgment against Basilio that, among other things, ordered him to vacate the family residence and allowed Lydia to sell the residence or pay Basilio for his interest in the residence. On July 26, Basilio moved to set aside the default judgment under Code of Civil Procedure section 473, subdivision (b) based on excusable neglect, mistake of law and mental confusion. He also sought relief under Family Code section 2120 et seq., claiming mistake of fact and law and that Lydia failed to comply with necessary disclosure requirements.

Basilio's supporting declaration indicated that he has a ninth grade education and a learning disability that impacted his ability to understand the intricacies of his divorce and the divorce documents. He claimed that his employer read the documents to him and told him that he needed to appear in court on December 12, 2005 and that he went to court that day and understood that he needed to return on February 1; he did so, but there was no hearing. On May 20, Basilio received the request to enter his default and six days later he received the default judgment, after which he consulted with an attorney. Basilio's employer also filed a declaration indicating that Basilio "needs assistance understanding things that an average person would quickly and correctly understand" and that he read important documents to Basilio and told him that he needed to appear in court on December 12, 2005.

Basilio claimed that Lydia's disclosure declarations failed to list four vehicles that she owned, community property rental income and other monetary assets. He also complained that the judgment did not allow him the opportunity to purchase the family residence and incorrectly stated that the couple had already divided the community property and furnishings. After considering briefing by Lydia and Basilio and hearing oral argument, the trial court set aside the default judgment, except as to the divorced status of the couple. The trial court's written order did not state the reason for its decision; however, during oral argument the trial court indicated its belief that Lydia had filed an insufficient preliminary disclosure declaration. Lydia appeals.

DISCUSSION

"Traditionally, set aside motions in family law court have been governed by [Code of Civil Procedure] section 473 when brought within six months after the entry of judgment, and by the common law of extrinsic fraud when brought afterwards. [Citations.]" (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32.) In 1992, the Legislature enacted new provisions governing the setting aside of dissolution judgments as part of the Civil Code and these provisions were later made part of the Family Code. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 136.) Sections 2120 through 2129, which are included in the chapter entitled "Relief From Judgment," authorize a court to "relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property . . . ." ( 2121, subd. (a).) "Section 2122 specifies the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment" (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684), after the six-month deadline under Code of Civil Procedure section 473 has passed. ( 2121, subd. (a).) Accordingly, a litigant may seek relief from a family law judgment within six months after the entry of the judgment under either Code of Civil Procedure section 473 or the foregoing provisions of the Family Code. (In re Marriage of Heggie, supra, 99 Cal.App.4th at p. 32.)

Lydia argues that the trial erred in granting Basilio's motion to set aside the default judgment under the Family Code because (1) the omissions in her property declaration were not material and (2) the trial court was required to make findings of fact that the "grounds for relief materially affected the original outcome" before it could grant relief. ( 2121, subd. (b).) She also contends the trial court could only set aside those portions of the judgment that were materially affected by her failure to fully disclose her assets and that the trial court erred in setting aside the entire judgment. ( 2125.) Basilio did not file a respondent's brief; therefore, we decide the appeal on the record and Lydia's opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)

It is well settled that an appellate court reviews the ruling of the trial court, not its rationale, and may affirm a trial court ruling on any proper basis presented by the record, whether or not relied upon by the trial court. (ASP Properties Group. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1268, citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) Furthermore, an order is presumed correct and the appellant must affirmatively show error. (Cal. Const., art. VI,  13; Code Civ. Proc.,  475; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) Accordingly, on appeal Lydia has the burden of proving relief from the default judgment was not available to Basilio under either the Code of Civil Procedure or the Family Code. She has failed to meet her burden.

Here, Basilio timely sought relief from the default judgment under Code of Civil Procedure section 473 and also under section 2122. Although the trial court mentioned Lydia's insufficient disclosure declaration during oral argument, we review the ruling and not the trial court's reasoning. As discussed below, the record supports setting aside the default judgment under Code of Civil Procedure section 473; accordingly, we base our analysis on this statute and will not address Basilio's alternative request for relief under the Family Code.

Code of Civil Procedure section 473, subdivision (b), provides that the trial court may relieve a party from a judgment "taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." "Excusable neglect" may be the result of a disability and the court may infer the existence of mental confusion or illness from the whole record before it. (In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 465-466; Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208 [court could reasonably conclude that unrepresented defendant suffering from a stroke was not capable of understanding the significance of legal expressions such as "service of summons and complaint" and "entry of default"].)

A trial court has discretion to grant a motion under this statute (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399) and all doubts are resolved in favor of the moving party except in clear cases of insufficiency. (Beckley v. Reclamation Board (1957) 48 Cal.2d 710, 718.) This statute is liberally applied where a party promptly seeks relief and the opposing party will not be prejudiced. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on another point as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64.)

In support of his motion, Basilio claimed he had problems understanding the court on December 12, 2005 and that he appeared in court as directed on February 1, but there was no hearing. He also presented evidence that his education is limited, he has a learning disability and his employer read documents to him. Although Lydia filed points and authorities challenging Basilio's assertion of a learning disability and comprehension difficulties, her responsive declaration does not address these claims. Based on the evidence presented, the trial court could have reasonably concluded that Basilio failed to file an answer because he was not represented by counsel, did not understand the court's direction to file "responsive pleadings" at the December 12, 2005 hearing, received no direction when he appeared in court on February 1 and received no courtesy notification that Lydia would be seeking a default or a default judgment. (Dingwall v. Vangas, Inc. (1963) 218 Cal.App.2d 108, 114 [Court of Appeal judicially noticed the "courtesy-custom among attorneys" to not request defaults without a prior warning].)

Significantly, Basilio did not receive the request to enter default notification until ten days after the court had already entered the default and the court entered the judgment only six days thereafter. Although the record does not reflect when Basilio received actual notice of the default judgment, he acted diligently in obtaining counsel and seeking relief within two months of the judgment and Lydia has not shown prejudice. When the evidence is considered as a whole and in a light most favorable to the trial court's order, we have no difficulty finding that substantial evidence supports the court's exercise of discretion based upon "excusable neglect." (Code Civ. Proc.,  473, subd. (b).)

DISPOSITION

The order is affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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