In re Marriage of Kim, No. G040115 (Cal. App. 4/14/2010)

• Decision Date: 14 April 2010
• Docket Number: No. G040115.,G040115.
• Parties: In re Marriage of OK CHA and DAVID SAINGSOO KIM. OK CHA KIM, Appellant, v. DAVID SAINGSOO KIM, Respondent.
• Court: California Court of Appeals Court of Appeals

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In re Marriage of OK CHA and DAVID SAINGSOO KIM OK CHA KIM, Appellant, v. DAVID SAINGSOO KIM, Respondent.

No. G040115.

Court of Appeals of California, Fourth District, Division Three.

Filed April 14, 2010.

Appeal from a postjudgment order of the Superior Court of Orange County, No. 99D003680, Mark S. Millard, Judge. Affirmed.

Thomas George Key; Michael R. Harlin for Appellant.

Buus, Kim, Kuo & Tran, William L. Buus and Alexander J. Chang; Ardent Law Group, Hubert H. Kuo, Alexander J. Chang and Stephen D. Johnson for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

MOORE, J.

This case has a sadly storied past. Ok Cha Kim (wife) and David Saingsoo Kim (husband) have been in litigation over their marital dissolution at least since 1993. Several lawsuits later, we arrive at the present day. In the proceedings underlying this appeal, wife filed a motion to remove a temporary judge who she alleged had not ruled on the reserved issues pending before him for more than six years. Before wife's motion was heard, the temporary judge filed a judgment on reserved issues. The court subsequently granted wife's motion to remove the temporary judge, and wife then filed a motion to set aside the judgment. The court denied wife's motion to set aside the judgment. Wife appeals.

Wife raises innumerable reasons why the judgment should have been set aside. In sum, she feels the entire 16-year period the parties have been in litigation has been tainted by husband's nondisclosures, and that more than six of those years were fouled by the temporary referee's bias, prejudice, incompetence and inexcusable delay. She goes so far as to say that the proceedings have resulted in a sham and even a fraud. In advancing her position, wife has repeatedly mischaracterized the record or failed to support her assertions with citations to the record. She has further provided an inadequate record and cited certain invalid legal authorities.

While we cannot say that the judgment is a model of clarity and perfection, the trial took place 13 years after the parties separated and by that time it was difficult to piece together every item of information bearing upon property valuations and encumbrances. The temporary judge did acknowledge husband's propensity for nondisclosure, and chose to award sanctions in the form of attorney fees in connection with discovery tactics. He also found that husband was lacking in credibility. At the same time, he also found that wife was lacking in credibility. All this notwithstanding, wife did not succeed in demonstrating that the judgment was a sham, that the judgment should have been set aside due to husband's nondisclosures, or that the temporary judge had lost jurisdiction to enter judgment. Consequently, we affirm.

I FACTS

Husband and wife were married on December 24, 1983. According to their stipulation, they separated on September 15, 1993. They have one child, born in 1985.

On September 15, 1993, husband obtained a Nevada divorce decree containing a finding that there were no community property assets for division. The decree states that husband appeared in court with counsel and that wife appeared in propria persona. However, wife represents that she never appeared in court and that the decree was taken against her fraudulently.

Uncertain whether the Nevada divorce decree was void for lack of jurisdiction, wife filed a petition for dissolution of marriage in California in 1994. The California dissolution proceedings were dismissed, given the preexisting Nevada divorce decree. Wife filed a second dissolution action in 1996, which was also dismissed. Wife then filed a civil suit pertaining to property division, but dismissed it before trial.

In 1998, the Nevada divorce decree was set aside. Wife represents that she appeared in the Nevada proceedings for the first time in December 1998, in connection with the set aside proceedings. The set aside order contained findings that the court lacked jurisdiction over the parties, that husband was not credible, and that, contrary to husband's representations, the parties did have community assets including a business and a home.

Wife filed yet another petition for dissolution, in California, in 1999, and those proceedings are the subject of this appeal. In April 2001, the parties stipulated to the appointment of a temporary judge. Trial before the temporary judge took place on numerous dates beginning in January 2006, and the matter was submitted after argument in July 2006. Judgment as to status only was entered in 2006.

The temporary judge issued a preliminary statement of decision in 2006. The parties filed various motions thereafter, including an order to show cause filed by wife in January 2007, a 33-page request for clarification of the preliminary statement of decision, filed by wife in February 2007, and a court-ordered accounting filed by husband in February 2007. A hearing on these matters was held before the temporary judge on April 18, 2007.

In August 2007, no ruling having been issued, wife filed a motion to remove the temporary judge, alleging that he had not ruled on the reserved issues pending before him for more than six years. Nine days later, and before wife's motion had been heard, the temporary judge filed a judgment on reserved issues, pertaining to property division and spousal support. He filed a statement of decision and three related rulings shortly thereafter.

The court, in its October 11, 2007 minute order, construed wife's motion as a motion to withdraw the stipulation to have the matter heard by a temporary judge. It granted her motion as so construed. However, the minute order also stated: "2. This court is not hereby adjudicating the effect of this disqualification upon the rulings rendered by the temporary judge after this motion was filed since that issue has not been properly noticed. That would require a separate motion. [¶] 3. The effective date of this ruling is October 10, 2007. With rare exceptions, law and motion rulings are effective the date of the ruling and are not given retroactivity."

In December 2007, wife filed a motion to set aside the judgment. The court denied the motion. At the hearing on her motion, the court stated that wife's removal motion had been granted because of delay and that delay does not make a judgment void. Also, the court interpreted the removal order to be prospective only, that is—the temporary judge was precluded from taking any action thereafter. On another point, the court noted that a judgment may not be set aside unless the court finds that the set aside would materially affect the judgment. However, there was nothing in the record to support such a finding. Wife filed a notice of appeal from the order denying her set aside motion.

II DISCUSSION

A. Introduction:

(1) Judgment —

As noted in the judgment, an August 28, 2000 order provided: "`For the purpose of determining the nature and value of any community property the date of evaluation shall be the date of separation of September 15, 1993.'" Consequently, at the 2006 trial, the court took evidence on the nature and value of the property in 1993.

In addition to resolving the property characterization and valuation issues, the court needed to determine whether, as husband argued, the parties had entered into an oral property division agreement, which they had effectuated, and whether that division amounted to a substantially equal division of the property as of 1993. Although the court questioned the credibility both husband and wife, it was impressed with the credibility of independent witnesses. Relying on the testimony of those witnesses, and on documentary evidence of the transactions of husband and wife, the court concluded that husband and wife had entered into and carried out a property division agreement. It also concluded that the property division was unequal, necessitating an equalization payment to wife.

Consistent with the parties' property division agreement, the judgment awarded to wife, as her separate property, real property on Camden Place in Fullerton valued at $63,000 (fair market value of $240,000 minus $177,670 encumbrance), real property on West Alvarez Street in Orange valued at $70,000 (fair market value of $414,000 minus $305,000 encumbrance), a beauty shop valued at zero value and a Volvo automobile also valued at zero. The judgment awarded to husband, as his separate property, real property on Younger Drive in Buena Park valued at zero (negative value), real property on Orangethorpe in Fullerton valued at $140,000 (fair market value of $540,000 minus $400,000 SBA note), real property on Holland Road in Sun City valued at zero (negative value), and Kim's Iron Works, valued at $40,000. It also awarded a $23,500 equalization payment to wife, payable by husband.

In addition, the judgment ordered husband to provide an accounting with respect to three other assets and the court reserved jurisdiction to make such further orders as necessary in connection with those matters. The judgment also resolved certain other issues. Finally, it awarded wife spousal support in the amount of $743 per month commencing November 1, 2006 and ending April 30, 2008. The judgment was supported by an eight-page, single-spaced statement of decision.

(2) Arguments —

Wife argues: (1) the judgment should have been set aside as a sham adjudication; (2) the judgment was void for lack of jurisdiction, having been filed by the temporary judge after wife had filed her motion to remove him; and (3) the judgment should have been set aside because of noncompliance with fiduciary disclosure requirements. We look at these arguments in turn.

(3) Standard of review —

The parties agree that the appellate court, in reviewing an order denying a motion to set aside a family law judgment, applies an abuse of discretion standard. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118; In re Marriage of...