Filed 9/20/19 Marriage of Fiala CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of AMY and FRANK FIALA.

AMY FIALA,

Appellant,

v.

FRANK FIALA,

Respondent.

A153631

(Alameda County

Super. Ct. No. HF14742191)

Appellant Amy Fiala contends the trial court erred in denying her motion to vacate a judgment entered on her marital dissolution settlement with her former husband, Frank Fiala. Amy contends she did not understand that by agreeing to the settlement she was waiving her right to trial; that she signed the settlement agreement without adequate knowledge of Frank’s income and the value of community assets; and that she signed the agreement under duress. To the limited extent Amy preserved these issues for appeal, the denial of her motion was well within the court’s discretion. We affirm.

BACKGROUND

The Settlement Agreement and Entry of Judgment

Amy and Frank separated in 2014 after a long marriage. They attended a judicially supervised settlement conference on July 31, 2015. Frank and Amy met several times before the conference to review financial information, including estimates of property values and a possible equalizing payment to Amy.

Amy executed a substitution of attorney shortly before July 31 and attended the settlement conference unrepresented. The court directed the parties to work on an agreed resolution outside the courtroom. This succeeded. Both parties executed a one-page handwritten “Agreement for Judgement [sic]” that reserved child support and resolved child custody, spousal support, and property division. Immediately above the signature line the agreement stated, “Agreement to be reduced to formal writing. This will be a legally enforceable memoradum [sic] of our agreement and may be enforced per CCP 664.5.”

The parties’ concordance was short-lived. Shortly after the settlement conference, Amy retained new counsel, and on August 20, 2015, she moved for temporary orders regarding child custody, visitation, spousal and child support, and attorneys’ fees. In turn, Frank moved to enforce the settlement agreement under Code of Civil Procedure section 664.6.

Amy did not attend the December 1, 2015 hearing on the motions. Her new attorney argued that Amy “didn’t understand the handwritten note was enforceable,” “didn’t feel she had a choice but to sign the agreement,” “felt threatened and coerced by the court and [Frank],” “didn’t know she had the option to continue the [settlement conference] and retain an attorney,” “had not signed an appearance stipulation and waiver,” “had not waived Final Declarations of Disclosure, there was no voir dire,” “was not aware the agreement regarding spousal support was non-modifiable and non-expandable,” counsel “didn’t know if it was explained to [Amy] that the agreement was enforceable under the Code of Civil Procedure,” and counsel and Amy had questions about loans made to or by Frank’s roofing business. Counsel also asked to continue the hearing to find out why her client was not present in court.

The court declined to continue the hearing because Amy had ample notice. It found the settlement agreement enforceable, accordingly denied Amy’s request for temporary orders, and terminated the parties’ marital status effective December 31, 2015. Frank’s counsel was ordered to prepare a judgment of dissolution in accordance with the terms of the July 31, 2015 settlement agreement. The conforming judgment was entered on February 9, 2016.

Amy Moves to Vacate the Judgment

There were no further court proceedings for a year. On February 9, 2017, Amy, again represented by new counsel, filed a motion to set aside the February 2016 judgment pursuant to Family Code section 2120 et seq. She asserted she signed the settlement agreement under duress; that Frank never completed, and she did not waive, a final declaration of disclosure; and that sometime after judgment was entered, she found a page from a 2011 tax return and an undated, unexecuted credit application that showed Frank had deliberately misrepresented his monthly income and the value of his roofing business. Amy asked the court to set aside the judgment and award her 100 percent of the value of the roofing business plus her attorneys’ fees and costs. Frank responded that Amy’s motion to vacate was an untimely attempt to relitigate the issues addressed at the December 1, 2015 hearing and was factually baseless.

The Hearing

The court held an evidentiary hearing on July 18 and August 10, 2017. Amy testified that in 2015 Frank and his brother and business partner Al Fiala agreed that Al would partially pay down a business debt that he, Amy and Frank had personally guaranteed and relinquish his interest in the business to Frank. As a result, the business creditor released its lien on Al’s house, Frank personally assumed the remaining debt, and he agreed to hold Al harmless from liability for it. Amy was aware of the negotiations and signed documents indicating she knew about the deal.

Amy and Frank met to discuss settlement on or around July 29, 2015, and probably in mid-June as well. On July 30, 2015, the day before the settlement conference, Amy met with Frank at his attorney’s office. By then, Amy’s lawyer had either quit or been fired.

Shortly after the July 31 settlement conference, Amy came to feel the agreement was unfair. She testified she felt pressured to sign it “with lack of, you know, not having an attorney.” The pressure was from “the Court, my ex-spouse. It was just in general, I guess.” As she testified, “I looked at [a financial spreadsheet provided to her on July 30 and attached to the settlement agreement] that was printed up with the division of property, and I could see clearly that I get a lot of zeros and he doesn’t, and I still have no proof of certain items. And I felt that those should have been not taken away out of my end of the deal.” On August 3, 2015, Amy informed Frank she wanted to double the equalizing payment so Frank would pay her $54,500 per year for 10 years rather than five years as they had agreed in the settlement.

In January 2016 Amy’s attorney notified Frank that Amy was not willing to waive final declarations of disclosure and had “questions regarding the actual value of the business due to questions regarding the loan and the partial payoff thereof[.]” Amy did not feel her questions were ever answered. She signed the February 9, 2016 judgment only because her attorney told her she had to. In April 2016 she discovered the roofing company’s 2011 tax return among papers she had obtained in August 2013.

Amy acknowledged that in the months preceding the settlement conference she and Frank met at least twice to discuss settlement and revised a spreadsheet designed to address their financial and property settlement several times. Frank gave Amy a schedule of assets and debts with his preliminary declaration of disclosure. Amy did not remember asking him for a final declaration of disclosure before the settlement conference.

Frank testified about taking over his brother’s interest in the roofing business. The transaction lowered the company’s value from negative $221,694 to negative $332,541. Frank understood that this would benefit him in the final marital settlement. He did not provide Amy with documentation of the transaction, but she knew about it “and the amount of money that [Al] had paid and that it would change and reflect on the spread sheet with the credit line change.”

Frank’s July 2015 preliminary declaration of disclosure provided Amy with a schedule of assets and debts that included the roofing company’s balance sheet, profit and loss statement, revenue and cash flow statement, accounts receivable, accounts payable, and a handwritten summary. His income and expense declaration reflected his July 2015 monthly gross income as $6,400, but a monthly average income of $14,260. The discrepancy was due to an $88,000 bonus Frank received around that time, which he included in calculating his average monthly income for the year. Frank did not report the bonus to Amy separately because he thought including the additional income in his monthly average was sufficient. He did not prepare a final declaration of disclosure because the parties’ attorneys had agreed they were unnecessary.

In written closing arguments, Amy asserted four bases to overturn the judgment: (1) failure to disclose, in that Frank never provided a final declaration of disclosure with updated information about his company’s finances, his bonus and salary; (2) mistake of fact, in that Frank failed to accurately disclose the value of the roofing company; (3) mistake of law, in that the handwritten settlement agreement erroneously referred to Code of Civil Procedure section 664.5 instead of section 664.6; and (4) duress, in that Frank’s attorney had represented both spouses during their marriage but did not inform Amy of any potential conflict of interest when he, Amy and Frank negotiated the settlement agreement. Frank’s closing brief reiterated that Amy’s motion was time-barred and unsupported by any evidence.

The Ruling

On December 11, 2017, the court denied Amy’s motion in a written order. It explained: “[O]n December 1, 2015, Judge Tucher ordered the handwritten agreement enforceable pursuant to CCP § 664.6. Although the handwritten agreement contained what the court will consider a typographical error, repeated by Judge Tucher at the December 1, 2015 hearing[,] the motion before the Court was for enforcement of the agreement under CCP § 664.6. Additionally, Judge Tucher made a finding that even though the agreement was not put on the record it was an enforceable written agreement to resolve a dissolution.

“[Amy’s] testimony regading [sic] duress and discovery of documents, she apparently had in her possession since at least April of 2016, was inconsistent and the court did not find her testimony credible. The evidence provided to the court supports [Frank’s] contention that the parties negotiatied [sic] the agreement based on information currently available and shortly after the mandatory settlement conference [Amy] wanted to renegotiate the terms of the agreement.

“While the court had concerns about the truthfulness of the testimony provided by both parties, the Court did not receive sufficient evidence to establish by a preponderance of the evidence that [Frank] failed to accurately disclose the value of Frank Fiala Roofing, Inc. or that [Amy] signed the handwritten settlement agreement under duress.

“The Court finds [Amy] knew or should have known about the failure to exchange Final Declarations of Disclosure at the December 1, 2015 hearing when her attorney argued the hearing should be continued due to the failure to file Final Declarations of Disclosure.”

The court denied Amy’s requests to set aside the settlement agreement and judgment, for 100 percent of Frank Fiala Roofing, Inc., and for attorneys’ fees. Amy filed a timely notice of appeal.

DISCUSSION

Preliminarily, we reject Frank’s contention that the order denying Amy’s motion to vacate the judgment is unappealable. The Supreme Court reached the opposite conclusion in Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 134 [an order granting or denying a motion to vacate a judgment is appealable as “ ‘an order made after a[n appealable] judgment’ ”]. We proceed to address Amy’s challenges to the December 11, 2017 order.

Section 2122 contains the exclusive grounds and time limits to set aside a marital dissolution judgment. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684 (Rosevear).) “Under this section, any action or motion to set aside such a judgment must be based on actual fraud, perjury, duress, mental incapacity, or mistake. Although the party seeking to set aside a dissolution judgment must also establish that the presence of at least one of these five grounds for relief ‘materially affected the original outcome’ and that he or she ‘would materially benefit from the granting of the relief’ (§ 2121, subd. (b)), the fact the judgment may have been inequitable to the moving party cannot by itself serve as a basis for setting aside that judgment. As stated by section 2123: ‘Notwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate. [Fn. omitted.]’ ” (Ibid.)

We review the trial court’s ruling for abuse of discretion. (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346; Rosevear, supra, 65 Cal.App.4th at pp. 682–683.) “ ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citations.] The burden is on the complaining party to establish abuse of discretion. [Citations.] The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (Rosevear, at p. 682.)

Amy appears to rely on section 2122, subdivision (e), which permits the court to set aside a stipulated judgment based on mistake of law or fact: “The grounds and time for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: [¶] . . . [¶] (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.” Amy asserts the court should have vacated the judgment under subdivision (e) because Frank misrepresented and/or failed to adequately disclose his bonus and the value of his roofing company; she was unaware that by executing the settlement agreement she was waiving her right to trial; and she signed the agreement under duress.

We turn first to Amy’s claim that she agreed to settle without knowing she was foregoing her right to trial by doing so. We need not dwell on its implausibility because it was not raised in the motion to vacate. “ ‘It is axiomatic that arguments not raised in the trial court are forfeited on appeal.’ ” (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670.) In any event, it is meritless. The settlement agreement states directly above the signature line that it is “a legally enforceable memoradum [sic] of our agreement and may be enforced per CCP 664.5.” It is inconceivable that Amy could agree to a judicially enforceable settlement without comprehending there would be no trial on the issues it resolved. She tries to escape this conclusion by observing that Code of Civil Procedure section 664.6, not section 664.5, addresses the enforcement of stipulated judgments, but there is no conceivable reason to believe the error would have caused her to believe she was entering into anything other than a binding settlement of the couple’s disputes.

Amy contends the court should have vacated the judgment because Frank failed to disclose either his $88,000 bonus or that “the Firm’s Assets [purportedly] Included More Than Three Quarters of a Million Dollars of Goodwill” before she executed the settlement agreement. (Boldface omitted.) Here too, we disagree. Amy forfeited the claim by failing to assert it in support of her motion to vacate the judgment. Her failing is not remedied by her current request that this court make factual findings in the first instance on the basis of government labor statistics not introduced in the trial court and brought before us in the guise of a request for judicial notice. “An ‘ “essential distinction” ’ between trial courts and appellate courts is that ‘ “it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .” ’ [Citation.] Appellate courts do not make factual findings; we review ‘ “the correctness of a judgment [or order] as of the time of its rendition.” ’ ” (People v. Contreras (2015) 237 Cal.App.4th 868, 892; see also Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090.) Amy asserts she raised these points at the hearing on Frank’s motion to enforce the settlement in 2015, but whether or not she did so is irrelevant. The issue is whether Amy also asserted them two years later in support of her motion to vacate the judgment. She did not, so they are not cognizable on this appeal.

Amy’s argument that she signed the settlement agreement under duress was preserved for appeal but fails on the merits. In this context, duress “ ‘ “includes whatever destroys one’s free agency and constrains [her] to do what is against [her] will . . . .” ’ ” (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84 (Baltins).) It “ ‘ “may be exercised by threats, importunity or any species of mental coercion [citation] . . . .” ’ [Citation.] It is shown where a party ‘intentionally used threats or pressure to induce action or nonaction to the other party’s detriment. . . .’ [Citations.] The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing. [Fn. omitted.]” (Ibid.) Here, Amy merely argues she was unrepresented at the settlement conference, felt pressured to settle by the court, and had a preexisting trusting relationship with Frank’s attorney. This is plainly insufficient to state a claim as described in Baltins. Even if it were not, the court reasonably found Amy’s testimony regarding duress lacked credibility and the evidence of any duress was insufficient.

Amy’s reliance on In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1519 for the principle that “ ‘[i]f one spouse secures an advantage from [an interspousal] transaction, a statutory presumption arises . . . that the advantaged spouse exercised undue influence and the transaction will be set aside’ ” does not help her. First, Amy asserted duress, not undue influence, in support of her motion to vacate. Second, there was no evidence, much less a finding, that Frank secured an advantage from an interspousal transfer. Third, undue influence is not one of the statutory grounds to set aside a judgment under section 2122.

Amy asserts for the first time in her reply brief that the court’s ruling was an abuse of discretion because the parties failed to either exchange final declarations of disclosure or waive the disclosure requirements in their settlement agreement or the ensuing order and judgment. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794.) Amy has not given any reason for her failure to raise this issue in her opening brief, so we decline to reach it.

In sum, there is no basis to disturb the trial court’s order. In light of this conclusion, we will not address Frank’s argument that Amy waived her right to appeal by accepting the benefits of the judgment.

DISPOSITION

The order is affirmed. Frank is entitled to costs on appeal.

 

_________________________

Siggins, P. J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Wick, J.*

A153631/In re Marriage of Fiala

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