In re Marriage of King

• Decision Date: 25 April 2000
• Docket Number: No. A082687.,A082687.
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Sandra Eben-King and Thomas L. KING. Sandra Eben-King, Appellant, v. Thomas L. King, Respondent.

95 Cal.Rptr.2d 113

80 Cal.App.4th 92

In re the MARRIAGE OF Sandra Eben-King and Thomas L. KING.

Sandra Eben-King, Appellant, v. Thomas L. King, Respondent.

No. A082687.

Court of Appeal, First District, Division 3.

April 25, 2000.

Rehearing Denied May 22, 2000.

Review Denied August 9, 2000.

Kay McKenzie, San Jose, for Appellant.

Greene & Mayer, C. Clay Greene, San Rafael; and Russell & Russell, Lance A. Russell, San Francisco, for Respondent.

McGUINESS, P.J.

In this appeal we address what is apparently an issue of first impression: do the provisions of Family Code section 2120 et seq. for setting aside a dissolution judgment on grounds of mistake, fraud or duress have any effect on the time for filing a notice of appeal from the underlying dissolution judgment? Despite the fact appellant Sandra Eben-King never filed a timely notice of appeal from the stipulated judgment of dissolution entered upon the motion of her former spouse, respondent Thomas L. King, she now purports to appeal both from an order denying her motion to set aside filed pursuant to Code of Civil Procedure section 473,¹ and from the underlying stipulated judgment of dissolution itself. In doing so, she places principal reliance on the Family Code provisions extending the time within which a spouse may seek equitable relief from a dissolution judgment. We conclude that most of the contentions appellant now raises for the first time on this appeal are jurisdictionally barred by her failure either (a) to raise those issues in her section 473 motion to set aside, or (b) to file a timely notice of appeal from the underlying stipulated judgment of dissolution after its entry upon respondent's motion. Because appellant's remaining contentions are without merit, we affirm the trial court's order denying her motion to set aside the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on June 25, 1989. Appellant and respondent were both insurance brokers. For most of the marriage, they were partners in operating their own insurance business. There were no children born to the marriage.

In June 1991, they purchased a home at 10 Toyon Court in Sausalito. Initially, the parties applied for a joint loan to purchase the residence. Due to respondent's prior bankruptcy and credit history, however, the parties failed to qualify for a joint loan. As part of the original purchase, therefore respondent quitclaimed his community interest in the residence to appellant as her sole and separate property. By handwritten memorandum dated January 8, 1993, appellant subsequently transmuted the residence to the community.²

After just over six years of marriage, the parties separated on July 15, 1995.³ Appellant remained in the family residence. On August 10, 1995, appellant petitioned for dissolution. The petition was filed on appellant's behalf by her attorney, Stephen B. Ruben. Respondent filed a responsive request for dissolution on December 20, 1995. Sometime thereafter, appellant began representing herself in propria persona.

On November 1, 1996, respondent's attorney sent a letter to appellant discussing exchange of documents, competing claims, and possible avenues for settlement. Among other things, respondent's attorney claimed the residential property at 10 Toyon in Sausalito "is clearly community property ... amenable to a sale or a buyout"; stated his understanding that both parties "had some business receivables ... on business activity completed during the marital period, but for which commissions may not have been paid until after the date of separation"; requested "a full accounting of all income received" after separation "resulting from business written during the marital period"; and stated he would provide appellant "with a similar accounting" from respondent.

On December 19, 1996, appellant filed a request in propria persona for an award of spousal support of $2,000 per month and $5,000 in attorney fees. In her supporting declaration, she described herself as an insurance broker who had "made an excellent living in the past," but who was "experiencing difficulty in resuming the same income level" due to disability and severe depression arising from a diagnosis of breast cancer and subsequent treatment, and whose financial situation was unexpectedly "quite desperate." According to appellant's income and expense declaration, her net monthly disposable income was $2,648.92, and her total monthly expenses were $5,957. Appellant's estimate of respondent's gross monthly income was $12,000. In opposition, on January 15, 1997, respondent filed an income and expense declaration claiming his net monthly disposable income for the previous 12 months was "-$191.50," and his total monthly expenses were $3,781. Appellant's motion for spousal support and attorney fees was heard on January 23, 1997. At the hearing, respondent told the court he was unemployed. The trial court denied appellant's requests.

The mandatory bench/bar settlement conference was initially set for April 14, 1997. On March 25, 1997, the parties filed their respective bench/bar settlement conference statements. Appellant's statement listed the family residence and its furnishings as her major separate property assets, and the property taxes on the residence among her debts. Appellant also disputed respondent's assertion that he was unemployed. Respondent's bench/bar conference statement again claimed the residence as community property, based on the purchase documentation, appellant's written memorandum of January 8, 1993, stating the residence was community property, and other evidence respondent had "participated fully in the purchase of the property." Among other things, respondent also claimed as community property a $90,000 commission paid to appellant for business transacted during the marital period.

Based on appellant's health problems, the bench/bar conference was continued, and the matter set for trial on July 10, 1997. On June 11, 1997, appellant again retained Attorney Ruben to represent her, and sought a continuance. In opposition, respondent's attorney pointed out appellant had already had almost two years to conduct discovery; the matter had been at issue for seven months; and appellant had made no efforts to settle the dissolution despite respondent's offers to do so. Respondent's attorney stated he was "more than willing to meet with [appellant's] counsel, go over all of my documents on these issues, [and] make any reasonable factually based resolution" without the "need to do discovery." According to respondent's attorney: "The discovery they want are the documents that are in my file, which I will make available to them at any reasonable time and place without the necessity of formal discovery. I have made this offer as much as three weeks ago, but have yet to hear from counsel."⁴ On June 23, 1997, the trial court granted appellant's attorney a 30-day continuance of the trial date and set the matter for a bench/bar settlement conference to take place on August 11,1997.

By supplemental bench/bar conference statement filed on August 7, 1997, appellant's attorney, Ruben, claimed the family residence as appellant's separate property, but recognized that appellant "realizes that the community may have right to reimbursement and/or a pro tanto interest in the home" for community payments made to reduce the principal balance of the mortgage. On appellant's behalf, Ruben contended appellant's January 8, 1993, memorandum "was written under duress and undue influence caused by Respondent who stood over [her] and insisted she write the statement" at a time when appellant was "heavily medicated and in an extremely weakened state of mind...." In addition, Ruben requested reimbursement for any insurance policy renewals or "other deferred or later received income" on insurance business transacted during the marital period, claiming that respondent "failed to produce documents establishing the amounts of this income in response to [appellant's] request for production of documents, and continues to refuse to produce such documentation to date."

The bench/bar settlement conference took place on August 11, 1997, before two judges pro tempore, Sarah Wills Friesendorf and Sandra Acevedo, both of the family law bar. The parties have disputed the fairness of the bench/bar conference. Appellant asserts it was "a travesty," in which her attorney (Ruben) was unprepared and unwilling to negotiate an agreement fair to her interests; she was forcibly excluded from portions of the discussions for a period of "at least two hours" while respondent and the parties' attorneys made all the decisions without consulting her; she had no "input" in the contents of the settlement agreement; and she acquiesced in the settlement only after "both of the attorneys repeatedly informed her that she could not afford to go to trial because it would cost $20,000 for her to try the case."

Respondent disputes appellant's version of the facts. Based primarily on the subsequent deposition testimony of Attorney Ruben, respondent contends Ruben spent at least six to eight hours meeting with appellant and preparing before the bench/bar conference on August 11, 1997; because of her hostile and insulting behavior toward respondent and his attorney, appellant was asked to leave the settlement conference for a period of approximately 20 minutes; appellant left the room voluntarily and without protest; during this 20-minute period, no decisions or agreements were made on any of the issues in dispute; except for this 20-minute period, Attorney Ruben was with appellant most of the day starting from 8:00 a.m.; no one ever threatened appellant or raised their voice at her during the settlement negotiations; Ruben discussed all of the issues privately with appellant, and received "input" from her "on every single issue" raised, discussed, or agreed upon during the bench/bar conference and the resulting...