In re Marriage of Kieturakis, A101719.

CourtCalifornia Court of Appeals
Citation41 Cal.Rptr.3d 119,138 Cal.App.4th 56
Decision Date29 March 2006
Docket NumberNo. A101719.,No. A104661.,A101719.,A104661.
PartiesIn re the MARRIAGE of Anna and Maciej Jan KIETURAKIS. Anna Kieturakis, Appellant, v. Maciej Jan Kieturakis, Appellant.
41 Cal.Rptr.3d 119
138 Cal.App.4th 56
In re the MARRIAGE of Anna and Maciej Jan KIETURAKIS.
Anna Kieturakis, Appellant,
Maciej Jan Kieturakis, Appellant.
No. A101719.
No. A104661.
Court of Appeal, First District, Division 4.
March 29, 2006.
Certified for Partial Publication.*

[41 Cal.Rptr.3d 120]

Vivian L. Kral, Law Offices of Vivian L. Kral, for Appellant Anna Kieturakis.

Bernard N. Wolf, Law Offices of Bernard N. Wolf, San Francisco, for Appellant Maciej Jan Kieturakis.

REARDON, Acting P.J.

138 Cal.App.4th 60

Anna Kieturakis appeals from the order denying her motion to set aside the parties' marital settlement agreement and the judgment incorporating that agreement. Maciej Jan Kieturakis appeals from the subsequent order granting Anna's request for increased support, and Anna

138 Cal.App.4th 61

appeals from the support order insofar as it denied her attorney fees. The court reserved jurisdiction to modify its decision on the support issues in the event we conclude that the marital settlement agreement and judgment should have been set aside. Maciej acknowledges that the fee issue may need to be revisited if the support ruling is overturned. The appeals have been consolidated for briefing and decision.

The most significant issues, addressed in the published portion of the opinion, are presented in the appeal from the order declining to set aside the settlement and judgment. The marital settlement agreement was reached in a mediation, and Anna sought to undo the property division

41 Cal.Rptr.3d 121

on grounds of fraud, duress, and lack of disclosure. Anna refused to waive the mediation privilege to allow disclosure of what transpired in the mediation, and thereby sought to prevent Maciej from defending himself against her allegations — charges on which the trial court found, based on the presumption of undue influence attaching to unequal marital transactions, Maciej bore the burden of proof. The trial court avoided that unacceptable result by admitting evidence from the mediation over Anna's objection, including evidence from the mediator over the mediator's objection. The mediation evidence, in large measure, defeated Anna's case. She contends on appeal that the evidence was wrongly admitted.

We hold, for a number of reasons, that Maciej should not have been made to bear the burden of proof on Anna's motion. In this regard, the presumption of undue influence in marital transactions must yield to the policies favoring mediation and finality of judgments. In view of this conclusion and in the particular circumstances of this case, any error in admitting evidence from the mediation was harmless.

In the unpublished portion of the opinion, we reject the parties' arguments against the support and fee rulings. Accordingly, we affirm the orders.


A. Statutory Background

(1) The Mediation Privilege

Admission of evidence of what has transpired in a mediation is restricted by Evidence Code section 1115 et seq.1 Section 1119, subdivision (c) provides that all communications, negotiations, or settlement discussions among participants in the course of a mediation or a mediation

138 Cal.App.4th 62

consultation are to remain confidential. A "mediation consultation" means "a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator." (§ 1115, subd. (c).) Section 1119, subdivisions (a) and (b) direct that, except as otherwise permitted in these statutes, no "evidence of anything said or any admission made," or "writing ... that is prepared," for "the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery," and disclosure of such evidence or writings "shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

These prohibitions do not apply if all those conducting or participating in the mediation expressly agree to waive them (§ 1122, subd. (a)(1)), and limited exceptions to the prohibitions are afforded for, among other things, signed settlement agreements reached in mediation that are binding by their terms (§ 1123). In addition, to "prevent[] parties from using a mediation as a pretext to shield materials from disclosure" (27 Cal. Law Revision Com. Rep. (1997) p. 601), section 1120, subdivision (a) provides that "[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation."

Unless all parties to the mediation expressly agree otherwise, no "report, assessment, evaluation, recommendation, or finding of any kind by the mediator" concerning

41 Cal.Rptr.3d 122

the mediation can be submitted to, or considered by, a court (§ 1121), and section 703.5 provides, with certain exceptions, that mediators are not "competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with" the mediation.

Section 1128 makes any reference to a mediation in any later civil proceeding "grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief."2

138 Cal.App.4th 63

(2) Grounds for Setting Aside the Judgment

Family Code section 2122, as it formerly read, provided the following grounds for setting aside a judgment: "(a) Actual fraud where the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud. [¶] (b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury. [¶] (c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment. [¶] (d) Mental incapacity. An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment. [¶] (e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment."3

B. Evidence

The parties began their relationship in high school in Poland, were married in 1984, and had one child, Maximilian, born in 1991. Maciej is a surgeon and an inventor of surgical devices. While residing in Poland, Anna obtained the equivalent of a master's degree in English, was active in the Solidarity movement, and served as an administrative assistant to Lech Walesa. In the United States, Anna had been a waitress, travel agent, Polish language lecturer at Stanford, and partner in a business that translated books into Polish and published them in Poland.

Anna petitioned to dissolve the marriage in October 1998. The parties filed income and expense declarations on July 15, 1999, showing monthly income of $14,325 and expenses of $18,410 for Maciej, and monthly

41 Cal.Rptr.3d 123

income of zero and expenses of $10,912 for Anna. A judgment of dissolution was filed on July 23, 1999, which incorporated a marital settlement agreement (MSA) executed by the parties on June 23, 1999, that was reached through mediation with mediator Anne Lober.

138 Cal.App.4th 64

The MSA provided that Maciej would pay Anna $8,500 per month in family support, and that spousal support would terminate on June 1, 2007. The amount of support was made modifiable "upon good cause appearing," "upon a change of circumstances, and as provided by law." In the property division under the MSA, Maciej received among other things all interest in "the intellectual property described as [the] `balloon dissector, a surgical device.'" The parties acknowledged in the MSA that the law "impose[s] a fiduciary duty on married persons regarding the accurate and complete disclosure of all assets, liabilities, and investment opportunities that were acquired, contracted or arose or may have arisen during the course of the marriage." The parties each affirmed service to the other of a declaration of disclosure and an income and expense declaration. The parties averred that they were "fully aware of the contents, legal effect and consequences of [the MSA] and its provisions," and that the agreement had been "entered into voluntarily, free from duress, fraud, undue influence, coercion or misrepresentation of any kind."

Nearly two years later, on June 26, 2001, Anna filed an order to show cause to set aside the judgment and MSA, and to modify the support she was receiving. She filed an income and expense declaration on that date listing no income and monthly expenses of $9,326.

Anna's supporting declaration stated that she had "acted under tremendous pressure" from Maciej and been intimidated by him into signing the MSA. She said that Maciej had "reacted with uncontrolled anger and threats" when he learned that she had retained an attorney, Harry Hanson, to represent her in the divorce. When she met with Hanson she could not answer most of his questions about the family's assets, and she had "only a vague idea ... that [Maciej] derived income...

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