In re Marriage of Deffner

• Decision Date: 28 September 2006
• Docket Number: No. G035719.,G035719.
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE of Flora Linda and Werner George DEFFNER. Flora Linda Deffner, Respondent, v. Werner George Deffner, Appellant.

49 Cal.Rptr.3d 424

143 Cal.App.4th 662

In re MARRIAGE of Flora Linda and Werner George DEFFNER.

Flora Linda Deffner, Respondent, v. Werner George Deffner, Appellant.

No. G035719.

Court of Appeal, Fourth District, Division 3.

September 28, 2006.

[49 Cal.Rptr.3d 425]

Minyard & Morris and Ronald B. Funk, Newport Beach, for Appellant.

Gary S. Gorczyca, Garden Grove, for Respondent.

OPINION

SILLS, P.J.

I. INTRODUCTION

The facts here, as found by the trial court, are extreme: In an ostensibly uncontested dissolution, the husband's attorney literally palmed himself off to the trial court as the wife's attorney, submitting papers in which he was listed as the wife's attorney when he was really representing the husband.

In affirming the trial court's decision to set aside the judgment, we will take our cue from Le Francois v. Goel (2005) 35 Cal.4th 1094, 29 Cal.Rptr.3d 249, 112 P.3d 636. In that case, involving whether certain statutes could validly limit the authority of a court, acting on its own motion, to correct its own erroneous prior interim order, the court solved the problem by means of the canon that statutes will be interpreted, if possible, not to violate the constitution. (Id. at p. 1105, 29 Cal. Rptr.3d 249, 112 P.3d 636.) In Le Francois, certain statutes could be read (indeed, had been read by a number of panels on the Court of Appeal) to infringe on the judiciary's "`core power to decide controversies between parties.'" (Id. at p. 1104, 29 Cal.Rptr.3d 249, 112 P.3d 636, quoting Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 184, 121 Cal.Rptr.2d 405.) But by distinguishing a party's right to seek relief from the statutes from the trial court's residual inherent power to correct interim orders on its own, the Le Francois court was able to reconcile the statutes with the inherent powers of the judiciary.

Likewise here we will uphold the trial court's order setting aside a judgment procured through fraud directly against the court by holding that that the applicable statute does not impinge on the trial court's residual inherent power to protect itself from fraud, a power impliedly recognized by the Legislature in section 128, subdivision (a)(8) of the Code of Civil Procedure [every court has power to control its "process and orders" to make them "conform to law and justice"]. As we explain below, while Family Code section 2122 inhibits the right of parties to have family law judgments set aside after certain time limits have expired, by its terms it does not prohibit a court from setting aside a family law judgment procured directly through a fraud on it. Indeed, the order in this case was right because the court surely had the power to protect itself from the one kind of fraud that no legal system can tolerate: the identity theft that occurs when one party's attorney impersonates the other party's attorney.

II. HISTORY

A. The 2002 Uncontested Judgment and Marital Settlement Agreement

This family law case began with a petition for dissolution filed in early February 2002, prepared by an attorney we shall call "Attorney V," who was, at least ostensibly, representing the wife, Flora Linda Deffner.¹ The petition stated that while separate and community property had not yet been "determined," all such assets would be disposed of in a "Marital Settlement Agreement."

Three weeks later, in late February, husband Werner filed his own petition, as distinct from a "response." Werner was ostensibly in pro per. A month later, in March 2002, Werner filed (again in pro per) a response to the wife's petition. He filed an amended response three days later. Unlike the petition, the response and the amended response alluded to all community and separate property being disposed of by Marital Settlement Agreement.

In August 2002 Attorney V prepared an Appearance, Stipulation and Waivers form, basically stating that the matter could go uncontested, and also making the stipulation conditional on the court approving the marital settlement agreement. The form had Flora Linda signing as petitioner, Attorney V signing as attorney for petitioner, and Werner signing as both respondent and attorney for respondent.

About two months later, in October 2002, Werner submitted his income and expense declaration and Flora Linda submitted hers; Werner's was in pro per; Flora Linda's was again prepared on her behalf by Attorney V. Flora Linda signed the document herself. Along with the declaration Attorney V prepared a schedule of assets and debts on the wife's behalf.

In early November, Attorney V prepared a declaration for uncontested dissolution, signed by Flora Linda. At the same time, Werner filed, in pro per, a declaration regarding service of declaration of disclosure, saying that his preliminary disclosure was served on Flora Linda "by personal service" and Flora Linda signed an equivalent one, but with Attorney V as preparer. At the same time, Attorney V filed a Judgment for dissolution, pursuant to a Family Code section 2336 declaration, with an attached marital settlement agreement.

On its face, the marital settlement agreement was lopsided, to say the least. Despite a thirty-year marriage, it waived all spousal support. And Werner received more than three-quarters of the community assets. The document itself recognized that Flora Linda would ordinarily have been expected to be awarded spousal support and explicitly spelled out Flora Linda's waiver: "Wife also understands that she ordinarily would be entitled to a monthly support payment in the amount of $1,800.00, payable for a term that is equal to at least one-half of the length of the marriage." It also recognized that Flora Linda was told that the agreement was lopsided: "[Attorney V] has advised both parties as to their respective rights in the property of the estate. [Attorney V] has especially advised Wife of her rights to a greater and more equitable share of the community property of the estate and the total value of the estate. Wife understands that she is entitled to a greater share than the share that she wants."

As to the actual retention of Attorney V, the agreement straddled the issue, suggesting that Attorney V was paid to represent both parties, but he was "primarily" representing Flora Linda: "Both parties have agreed to pay [Attorney V] the total sum of $5,000.00 to handle their dissolution and Marital Settlement Agreement on an uncontested basis, although the parties have agreed that said attorney shall primarily be representing Wife's interests in this matter."

Both Werner and Flora Linda signed the document on August 1, 2002, and Attorney V signed as "Attorney for Wife." The judgment and attached marital settlement agreement were signed by Judge Tam Nomoto Schumann on November 4, 2002.

B. The 2004 Set Aside Motion

More than 21 months went by. Then, in September 2004, came a substitution of attorneys, in which Flora Linda's present counsel was substituted for Attorney V. (Attorney V signed as Flora Linda's previous lawyer.) The next month, October 2004, Flora Linda's new attorney filed a motion to set aside the judgment and marital settlement of November 2002.

The core of the motion was Flora Linda's 11-paragraph declaration. As to the allegation of a ruse put over on Judge Schumann, here are the exact words from the declaration: "My former husband hired attorney [V] to handle our uncontested divorce. My husband paid Mr. [V] a $5,000 retainer fee although the Income and Expense Declaration prepared by Mr. [V] suggested I paid this fee. Since my husband received such a disproportionate share of our assets I was advised that Mr. [V] would appear as my attorney on the paperwork so as to minimize the court's concern, if any, over the unfairness of the judgment." (Italics added.)

The only other language touching on the theme of duplicity in the legal representation was this: "I believe Mr. [V's] interests were conflicted in representing both the Respondent and me in this action. Although he claims to have `primarily' represented me, the Judgment clearly favors my ex-husband who was awarded approximately 82% of our community estate." Then came language elaborating on the substantive lopsidedness of the agreement.

The declaration was silent as to why Flora Linda appeared to go along with the ruse except for her lack of sophistication: "I am unsophisticated in legal matters and mater [sic] of business. Throughout our marriage I was a homemaker and the Respondent handled all business and financial concerns of the family. Until reviewing the paperwork sent to me after the Judgment was filed, I had no idea we had accumulated assets worth approximately $1,000,000."

The balance of the declaration quoted portions of the marital settlement agreement, made reference to the signing of declarations regarding preliminary declarations of disclosure, made an allegation about an irregularity in a declaration of disclosure,² and admitted that Flora Linda "receive[d] a large packet of papers from [Attorney V] on or about November 2002."

Flora Linda's attorney finally argued that her set aside motion was timely, based solely on the irregularity involving the declaration of disclosure.

Werner's declaration opposing the set aside directly controverted the idea that Attorney V was in reality his attorney and not his wife's. "Petitioner's contention that Mr. [V] was my attorney is simply untrue. She decided on Mr. [V]. She paid him the retainer. She had every opportunity to discuss the terms of the dissolution with him at any time." And: "The comment in her moving papers, that it was decided that Mr. [V] would be `her attorney' so that the judge would not question the property settlement, never happened. There was never any discussion between Petitioner and me about whom Mr. [V] represented. She was the party that wanted the dissolution and I assumed that she took care of the details. I was never party to a discussion about `minimizing the court's...