Filed 10/16/17 Friend v. Johnson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Calaveras)
----
| KAITLYN FRIEND,
Plaintiff and Respondent,
v.
WESTLEY JOHNSON,
Defendant and Appellant.
| C083160
(Super. Ct. No. 13FL39437) |
Westley Johnson appeals, in propria persona, from a court order denying his motion to set aside a prior order for spousal support.[1] We affirm.
The record on appeal does not include a reporter’s transcript of the hearing in this matter. This is referred to as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.)
FACTUAL AND PROCEDURAL BACKGROUND
The limited record we have establishes that, in October 2013, the trial court granted Friend’s motion for spousal support and ordered Johnson to pay Friend $700 each month in spousal support. On December 18, 2013, Johnson filed a motion to modify that order. In support of his motion, Johnson argued, among other things, that Friend lied in her motion, saying she “has been unemployed since July 2011.” Johnson claimed Friend had two jobs “that started in June of 2013 and August of 2013. Both jobs she currently still works.”
In July 2014, Friend filed an income and expense declaration with the court indicating that in March 2014 she started working 20 hours per week at Dodasa Ranch as a housekeeper. “Spousal support was then reduced to $230 per month.”
On November 26, 2014, Johnson filed a declaration in the trial court, to which he attached numerous exhibits. Included in those exhibits was a copy of a check from Dodasa Ranch, Inc., to “Kait Johnson” for $72, dated November 5, 2012. Also included in those exhibits was a memorandum from Johnson’s commanding officer, for the Department of the Army, indicating that Johnson was not “required” to pay spousal support under United States Army Regulation 608‑99 because:
“(a) [Friend] lived with [her] parents for the entire marriage and was not required to pay any bills.
“(b) [Friend] was employed the entire time during their marriage.
“(c) [Johnson] has been married to [Friend] for less than 5 years therefore is not obligated to pay spousal support.”
In December 2014, Johnson filed another request to modify spousal support. That motion was deemed moot because Friend had remarried. “The court nevertheless ordered retroactive spousal support in the sum of $543 per month for the period of July through December 2014.”
Johnson moved to modify support a third time on March 16, 2015. He asked the court for “a fair and impartial trial to provide my evidence, documents and to show the court that issuing spousal support is not needed for [Friend].” Three days later, he filed a motion to change venue, claiming Friend and her family had prejudiced the court against him.
On May 7, 2015, the trial court denied Johnson’s motion for change of venue, finding Calaveras County was the county of residence for the parties’ minor child. The court also denied Johnson’s motion to modify spousal support: “Court advises parties any spousal support motion will be denied as moot, as a final judgment terminating spousal support as of 12/31/14 has been entered.”
On December 22, 2015, Johnson caused to be filed in the trial court a declaration regarding evidence for determination of arrears, and exhibits appended thereto. Included in those exhibits were transcripts from Diablo Valley College, which Johnson claimed demonstrate Friend dropped out of school in 2008, three years before their daughter was born. Thus, he noted, she could not have dropped out of school to care for their child as she claimed in her motion to receive support. He also argued that Friend’s standard of living had not changed since their separation because before, during, and after their marriage, she lived with her parents. And, thus, she had no need for spousal support.
On July 6, 2016, Johnson filed a motion to set aside the October 10, 2013 support order, on the basis of fraud. Johnson filed a declaration in support of his motion. In his declaration Johnson stated that when he previously asked the court why Friend was being awarded spousal support, the court said, “she was granted spousal support solely for her testimony which was dropping out of school for domestic duties.” According to Johnson, he “went to court many times and asked the court to change the order and that [Friend] had committed fraud in her statement . . . and each time was denied for no evidence.”
Now, according to Johnson, he had the evidence that she dropped out of school three years before their child was born. Moreover, Johnson claimed, “it was proven in court [that Friend] had no bills, lived with her parents before[,] during[,] and after the marriage free of charge and [he] proved that she was working and not using [his] employment for a source of income but her own.” Johnson said he provided the court with “[Friend’s] pay stubs and [W-2 form] that [he] found . . . from different employers.”
The trial court denied Johnson’s motion on September 7, 2016, ruling, in part: “[Johnson] has failed to meet his burden of proof. In December 2013, he made the claim that [Friend] should not receive spousal support because she was working two jobs, that same claim he is making today. He was required to bring the instant motion within six months after he discovered, or should have discovered, [Friend’s] alleged wrongful conduct. His claim must have been brought no later than June, 2014.
“[Johnson’s] motion to set aside the support order is denied. Should he attempt to re-litigate this res judicata issue again, sanctions will be imposed against [Johnson] pursuant to Family Code section 271.”
Johnson filed a timely notice of appeal.
DISCUSSION
Generally, a party has six months from the entry of a final order or judgment to seek relief from the court on fraud or perjury grounds. (Code Civ. Proc., § 473.) After six months, such applications are time-barred. (Ibid.) However, applications for relief from support orders or judgments receive more lenient treatment. In such cases, courts have limited discretion to set aside an order or judgment based on fraud, perjury, or lack of reasonable notice after the six-month statutory period has passed. (Fam. Code, §§ 3690-3692.) Relevant here, a former spouse subject to a tainted support order or judgment has six months from the time he or she discovers or reasonably should have discovered the fraud or perjury to ask the court to set aside the order. (Fam. Code, § 3691.)
As noted in the trial court’s decision, Johnson has been making the same claim of fraud since December 2013. His motion to set aside the support must, therefore, have been filed by June 2014. Johnson does not, as he claims, get a longer time period to file such a motion under title 50 United States Code section 3936 (formerly 50 U.S.C. Appen. § 526) (hereafter section 3936).
Section 3936 provides, in relevant part, that “[t]he period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, . . . by or against the servicemember . . . .” (§ 3936(a), italics added.) By its plain language, section 3936 applies only to statutes of limitation relative to bringing an action by or against a servicemember; it does not apply to motions brought within an action already pending. (See Zarlinksy v. Laudenslager (1961) 402 Pa. 290, 296 [167 A.2d 317].)
Code of Civil Procedure section 351 provides that “f, when the cause of action accrues against a person, he is out of the state, the action may be [i]commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.” (Italics added.) Thus, it too is a statute applicable only to the start of an action, and tolls the time to commence an action. It does not toll the time to bring motions during the pendency of a proceeding.
In sum, we conclude the trial court correctly ruled that Johnson’s motion was time-barred pursuant to Family Code section 3691.
DISPOSITION
The orders of the trial court are affirmed. No costs are awarded on this appeal. (Cal. Rules of Court, rule 8.278(1), (5).)
BUTZ , J.
We concur:
HULL , Acting P. J.
MURRAY , J.
[1] Kaitlyn Friend (formerly Kaitlyn Johnson) filed no respondent’s brief in this appeal. We do not treat her failure to do so as a default or an admission that the trial court erred (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Cal. Rules of Court, rule 8.220(a)(2)), but instead examine the record for prejudicial error on the basis of Johnson’s opening brief.
