Filed 10/4/17 Chaus v. Jochims CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Appellant Claudia D. Chaus appeals from an order denying her motion for relief from judgment pursuant to Family Code section 2122, subdivisions (a), (b), and (f). (Statutory references are to the Family Code unless otherwise set forth.) Chaus contends the trial court erred in refusing to grant her motion to set aside the stipulated judgment. We affirm the trial court’s order.

Facts and Proceedings

Chaus and respondent Jon W. Jochims were married in December 1997. According to Chaus’s brief on appeal, they also “worked jointly as a real estate mortgage team throughout the course of the marriage.” They separated in October 2007, but continued to work together. They received a status only judgment in 2009.

In March 2014, Chaus and Jochims went to trial to resolve the remaining issues arising from the dissolution of their marriage. At that trial, one of the contested issues was whether the $105,790.85 for which Jochims received a 1099 tax form in 2008, was income that he earned through their work as a mortgage team or income Chaus earned under his name. Jochims’s knowledge of that income was thus a contested issue and one that apparently did not get resolved before they reached a stipulated judgment.

In March 2015, Chaus moved the trial court for relief from that June 2014 stipulated judgment. She claimed the judgment should be set aside based on fraud, perjury, and failure to comply. (§ 2122, subds. (a), (b), and (f).)

In support of her claim, Chaus argued her attorney did not act in her best interest at the 2014 trial. She said he “refused to inform [her] of specific family codes that applied to [her] case.” According to Chaus, her trial counsel also used “intimidation and bullying tactics” to get her to sign the stipulated judgment.

She also argued that Jochims lied about his income in a declaration filed in August 2010. Specifically, in August 2010, in a motion to compel joinder, identifying Silicon Valley Capital Funding (SVCF) as a third party claimant, Jochims stated under penalty of perjury that he was “surprised to receive a 1099 via PDF in an email for the 2008 tax year in the amount of $105,790.85.” He further stated that he “never authorized [Chaus] or [SVCF] to sign loan documents in my name. Any income earned in 2008 was between [Chaus] and [SVCF].”

Chaus offered evidence, which she argued was proof that in 2008 Jochims “was fully aware the income was being generated in his name.” As a result of his perjury, she argued, she should be granted relief from the stipulated judgment.

She also argued that Jochims was not complying with the stipulated judgment.

At the initial hearing on Chaus’s motion, the trial court expressed its concern that through her motion they were “just rearguing old facts.” The court also wondered out loud whether Chaus was even entitled to an evidentiary hearing on duress. Jochims’s counsel responded: “[T]he only duress she’s claiming is that from her counsel. That’s a malpractice issue.”

Chaus made repeated efforts to discuss the documentary evidence she had submitted with her motion; the trial court advised her that “[t]hose are all things” it could not “really consider today.” The court went on to express its reticence to rule on the motion without reviewing “all the files.” Accordingly, the court continued the hearing.

The parties returned to court on June 9, 2015. The trial court told Chaus it would hear her argument but would not receive new evidence. The court heard argument from Chaus’s and Jochims’s counsel, then issued its ruling. The court explained that before it could grant Chaus’s motion, the court must first find that Chaus “would materially benefit from the granting of a [sic] relief.” In order to make that finding, the trial court read “the trial briefs” from 2014 and “reviewed as much of the trial testimony as [it] could.”

The trial court said that according to Chaus’s 2014 trial brief, her “best case scenario” at trial resulted in Chaus getting an equalizing payment and “assum[ing] all the liability [of] the 2008 income tax.” She also was asking for a great deal of money to which she may not be entitled. According to Jochims’s trial brief, as the court summarized it, his best case scenario at trial resulted in Chaus owing Jochims “literally . . . hundreds of thousands of dollars.” The court also noted that the stipulated agreement was reached in the middle of trial, when numerous issues had yet to be tried, issues that impacted the bottom line.

The court thus ruled: “All I am saying is that I’m not taking sides here. All I am saying is that based on the evidence that’s [sic] produced at trial, and based upon your respective positions that were articulated by respective counsel prior to the trial, I could not find, and I specifically do not find, that if the relief were granted that you would materially benefit. In fact, from what I can see here is, there is a substantial likelihood that it would have been far worse than the settlement that you reached.

“Now, I know neither of you have any money. I understand that. And so it was my understanding that the impetus for the settlement was, look, you don’t want to spend the rest of your time collecting against him or him collecting against you. Let’s cut it off now and move forward productively.”

The court went on to rule that Chaus’s perjury claim lacked merit because section 2122, subdivision (b) addresses only “perjury with respect to anything in the income and expense declaration for preliminary or final declaration of disclosure,” and that was not the perjury about which she was complaining.

The court ruled that Chaus’s claim under section 2122, subdivision (f) also lacked merit because she was complaining about Jochims’s failure to comply with the stipulated judgment; section 2122, subdivision (f) on the other hand, addresses a party’s failure to comply with disclosure requirements.

Regarding Chaus’s claim of fraud, the trial court ruled Jochims’s veracity relative to his income was an issue she “abandoned” when she entered into the stipulated agreement. There was, therefore, no ruling at trial on whether Jochims knew of the income being generated at SVCF under his name. In sum, the court ruled: “So I don’t find, regardless of the [section] 2122 threshold, that under [section] 2121[, subdivision] (b) threshold, that [section] 2122 [subdivisions] (a), (e), or (f) have been met with respect to your motion. So I am going to deny your motion to set aside.”

Discussion

We review the order denying the motion to set aside for abuse of discretion. (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346.)

A motion to set aside a marital dissolution judgment under section 2122 may be based only on actual fraud, perjury, duress, mental incapacity, mistake, or the failure to comply with the disclosure requirements. (§ 2122.) In the trial court Chaus asserted the stipulated judgment should be set aside on the grounds of fraud (§ 2122, subd. (a)), duress (§ 2122, subd. (c)), perjury (§ 2122, subd. (b)), and failure to comply (§ 2122, subd. (f)). She raises the same assertions on appeal.

The trial court may grant relief on a motion to set aside under section 2122 only if “the moving party would materially benefit from the granting of the relief.” (§ 2121, subd. (b).)

Here, the trial court found that even if the relief Chaus sought were granted, she would not materially benefit from the outcome. In reaching its decision, the trial court reviewed documents that are not part of the record on appeal, including the 2014 trial briefs and testimony from the 2014 trial. On appeal, we must presume the trial court’s judgment is correct. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

On this record, we must therefore presume the trial court was correct in concluding that based on the arguments made and evidence produced in the 2014 trial, even under Chaus’s best case scenario, she would not have reached a better outcome than she reached with the stipulated judgment. That, in fact, there is a “substantial likelihood” the result for Chaus would have been “far worse” than the result she obtained with the stipulated judgment.

In addition, the trial court correctly noted that perjury under section 2122, subdivision (b) is only a basis for setting aside judgment if that perjury is related to “anything in the income and expense declaration for preliminary or final declaration of disclosure.” Both in the trial court and on appeal, Chaus argues that Jochims perjured himself relative to a motion that he filed in August 2010, not those documents identified in section 2122, subdivision (b). The court thus did not err in denying Chaus’s motion on the basis of perjury.

The trial court also correctly noted that section 2122, subdivision (f) addresses a party’s failure to comply with the disclosure requirements of chapter 9 in the Family Code. Chaus made no such claim in the trial court, nor does she make such a claim on appeal. The court thus did not err in denying Chaus’s motion on the basis of failure to comply.

What she does claim on appeal relative to Jochims’s failure to comply, is that she should be granted relief from judgment under Code of Civil Procedure, section 128, subdivision (a)(1), due to Jochims’s failure to comply with the stipulated judgment. She did not raise that claim in the trial court; she cannot raise it for the first time on appeal. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [arguments not asserted below are waived and will not be considered for the first time on appeal].)

Chaus’s claims of fraud and duress fair no better. With regard to fraud, Chaus claims on appeal that the trial court failed to rule on this issue. Her claim is not supported by the record. The trial court denied her entire motion, and all the bases she claimed in support thereof, on the ground that she would not materially benefit from relief.

Chaus’s claim that her trial counsel defrauded her by failing to provide her with “any information” is forfeited because she failed to cite any authority to support her claim that her attorney’s failure to provide her with information can support a finding of “fraud” as a basis for relief from judgment under section 2122. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Regarding her claim of duress, on appeal, Chaus says only that her attorney’s fraud “caused” her duress. This is not actually a claim of legal error and she makes no argument otherwise.

In sum, we find the trial court acted within its discretion in denying Chaus’s motion for relief from a stipulated judgment.

Disposition

The trial court’s order is affirmed. The parties will bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

HULL , Acting P. J.

We concur:

ROBIE , J.

BUTZ , J.