Marriage of Baiza

Filed 5/3/06 Marriage of Baiza CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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, Patricia Garcia, Judge. Affirmed.

Maria B. Baiza (Maria) appeals from an order granting Max Baiza's (Max) Code of Civil Procedure^[1] section 473 motion for relief from a judgment. Maria contends Max was not entitled to relief because he obtained the judgment and the trial court abused its

discretion in granting relief. We affirm the order.

FACTS AND PROCEDURAL BACKGROUND

Max and Maria married in 1968 and separated in 1995. In November 2003, Max filed a petition for dissolution of marriage. In the fall of 2004, Max and Maria met with a family court facilitator and signed a marital settlement agreement. Among other things, Maria was awarded the parties' residence and a half interest in Max's military pension. Maria stipulated the matter could be tried as an uncontested matter. A judgment, incorporating the marital settlement agreement, was entered in September 2004. Neither party was represented by counsel.

In December 2004, Max filed a petition to set aside the judgment on the basis he had made mistakes of law. In his declaration, he stated he agreed to give the community residence to Maria because he "mistakenly believed that the wife always gets the house." He sought to be awarded his community share in the residence. He also stated that he agreed to give Maria one-half of his military retirement pay because he "mistakenly believed that she was entitled to one-half" even though seven years of his military pension had been earned before the marriage. He sought to be awarded the portion of his military pension that was his separate property.

The trial court set aside the judgment, noting Max's petition had been filed within the six-month limitations period of section 473 and he had made two mistakes of law: (1) about his entitlement to an equalization payment for the community residence and (2) in the calculation of the community's interest in his military retirement. The court also stated it was not setting aside the judgment merely based on a finding the judgment was inequitable.

DISCUSSION

Section 473, subdivision (b) allows relief from a judgment based on the grounds of mistake, inadvertence, surprise or excusable neglect. The mistake may be one of either law or fact. (8 Witkin, Cal. Procedure (4th ed. 1997), Attack on Judgment in Trial Court, §§ 160, 161, pp. 662-664.) A party seeking relief must show the mistake was "excusable" and the motion was timely. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Relief under section 473 for a mistake of law is not justified if a party shows only ignorance of the law coupled with negligence. (8 Witkin, supra, § 161, p. 663.) "[T]he 'issue of which mistake in law constitutes excusable neglect presents a question of fact. The determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.' " (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319; 8 Witkin, supra, § 161, at p. 663.)

Although section 473 "appears to be applicable to a party 'against' whom a judgment is taken, it has been held in California that a party who prevails and obtains a judgment in his [or her] favor may move to set aside the judgment upon a sufficient showing of mistake, surprise or excusable neglect." (Troxell v. Troxell (1965) 237 Cal.App.2d 147, 151; Zamora v. Calyborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255; In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 465 ["[a]n order or decree incorporating a settlement agreement may be set aside under section 473"]; 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 158, pp. 660-661.) Thus, under settled law, contrary to Maria's contention, Max had standing to set aside the judgment under section 473.

" ' "[D]uring the period when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court." ' " (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314-315.) " '[A]ny doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.' " (Rappleyea v. Campbell, supra, 8 Cal.4th 975, 980.)

A trial court has broad discretion to grant relief and its determination will be reversed only for an abuse of discretion. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) "Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] ' " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " ' " (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.)

Maria contends the court abused its discretion because it ignored "the restrictive [e]ffects of Family Code [section] 2123." (Some capitalization omitted.)

Family Code section 2123 provides a judgment "may not be set aside simply because the court finds that it was inequitable when made." Contrary to Maria's contention, the trial court here did not set aside the verdict on the basis it was inequitable. The trial court, in its statement of decision, specifically recognized Family Code section 2123 does not allow a judgment to "be set aside simply because the Court finds that the Judgment is inequitable," stated it was not "relying on that section as a basis for its decision," and stated it was granting relief to Max based on mistakes of law as to the division of his military pension and the community residence.

Nonetheless, Maria contends the court's ruling was based only on finding the judgment inequitable. She argues Max's mistakes of law were not reasonable and were negligent.

Here, neither Max nor Maria was represented by counsel. They filled out a form marital settlement agreement with the aid of a family court facilitator. The form consisted of various items to be checked and filled in by the parties, including sections for community property to be awarded to the husband, community property to be awarded to the wife and pension/retirement benefits. The form did not contain any legal advisements. Nor did it contain any sections for calculating any separate interest in community property or for calculating a reimbursement to the other spouse for a share of a community property asset. Maria submitted no evidence showing the family court facilitator asked Max whether any of his retirement benefits had been earned prior to the marriage or advised him to his right to reimbursement of his community share of the residence. Nor did Maria submit any evidence showing Max intended to give her his separate property or to waive his right to his share of the community residence.

Under these circumstances, we do not find the court's decision exceeded the bounds of reason or constituted an abuse of discretion.

DISPOSITION

The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All statutory references are to the Code of Civil Procedure unless otherwise indicated.