Filed 4/24/20 Marriage of Kwon and Park CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of YOUNG AH KWON and BYUNG SEON PARK.

YOUNG AH KWON,

Respondent,

v.

BYUNG SEON PARK,

Appellant.

G057226

(Super. Ct. No. 17D005184)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, André De La Cruz, Judge. Affirmed.

John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Office of Sunmin Lee and Sunmin Lee for Appellant.

Law Office of Leslie Ellen Shear and Leslie Ellen Shear for Respondent.

* * *

INTRODUCTION

Young Ah Kwon filed a petition to dissolve her marriage to Byung Seon Park, and caused the summons and petition to be served on Park. Park did not respond to the summons and petition and, 11 months later, Kwon requested entry of Park’s default. Park’s later motion to quash service of the summons was denied because it had been filed after the default was entered, and the trial court refused Park’s request to treat the motion to quash as a motion for relief from default. The trial court also denied Park’s motion for relief from default because Park had failed to establish excusable neglect for failing to respond to the summons and petition. A default judgment was entered, from which Park appealed.

We conclude the trial court did not err in refusing to treat the motion to quash as a motion for relief from default. We further conclude the court did not err in denying the motion for relief from default because the court had determined that Park had dug himself into a “credibility hole” from which he could not get out.

Park also challenges the judgment, in whole and in part, as void. None of his challenges to the judgment was raised in the trial court, and none presents an issue of law based on undisputed facts that we could consider for the first time on appeal.

We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Kwon and Park married in 1996 and separated in June 2017. At the time they separated, one of their two children was a minor.

Kwon filed a petition for dissolution of the marriage in June 2017. Two days later, a registered process server personally served Park with the summons and the petition at the parties’ house in Irvine. Park did not respond to the petition.

On June 6, 2018, Kwon filed a request to enter default, which was effective immediately by operation of law. A community/quasi community property declaration, a separate property declaration, and an income and expense declaration were all attached to the request. The clerk of the court served the default package on Park by mail on July 12.

After the request to enter default had been filed, but before it had been served on Park by the clerk, Park filed a motion to quash service of the summons and petition, and to stay or dismiss the action based on forum non conveniens. After extensive briefing and a hearing, the court denied the motion:

“The Court finds [Kwon]’s argument to be more persuasive. The motion to quash is out of the Court. The default has been entered effective on the day that it was requested. The Court has been persuaded by the citations provided by [Kwon]’s supplemental briefing.

“The fact of the matter is default had been entered prior to the motion to quash; therefore, any subsequent request that the Court is to address should first attempt to set aside the default.”

The court rejected Park’s counsel’s verbal request to treat the motion to quash as a motion to set aside the default. In a formal written order, the court found: “Based on the declarations submitted, the Court finds [Park]’s allegation that he was not personally served to be incredible and without any merit.”

Park then filed a motion for relief from default, as well as an amended motion. Following briefing and a hearing, the court denied the motion:

“The Court: The problem here is—this stands out to me: The issue with service and your client denying that he was adequately served by a declaration that I received from the process server saying ‘The person I served was of such and such age, looked like such and such person,’ and then the response was, ‘No, that was not me,’ and I find that to be lacking credulity.

“[Park’s attorney]: May I?

“The Court: No. And so your client already digs himself a credibility hole to begin with.

“[Park’s attorney]: Okay.

“The Court: Now we’re here saying that it is now a different mistake. Now I may have been served but now I was mistaken as to what assets I thought were going to be disposed of or not.

“And so at this point, I’m going to deny the motion to set aside and this case is over. If you want to fix something in the judgment, then that is by way of a different mechanism, not by throwing out the entire judgment to begin with. [¶] . . . [¶] [Code of Civil Procedure section] 473.5 provided relief when service of summons has not resulted in actual notice to a party. This has already been previously determined it is not the case here.

“As previously discussed last time we were here, [Park]’s motion to quash was denied as [Park] was already in default . . . . This subsequent motion does nothing to [supplement] the grounds of [provided by the Code of Civil Procedure for] set aside. [Park]’s only contention is based on the public policy favoring trial on the merits and arguments that [Kwon] failed to properly serve and request to enter default.

“We have already addressed these arguments and [they] are insufficient to support a set aside of the relief requested; therefore, the motion to set aside entry [of] default is denied.”

The trial court entered the default dissolution judgment, and Park timely filed a notice of appeal.

DISCUSSION

Park’s arguments on appeal fall into two broad categories: (1) the trial court erred in denying Park relief from entry of default, admittedly a discretionary matter for the trial court; and (2) some or all of the judgment is void and must be vacated.

I.

THE TRIAL COURT DID NOT ERR BY REFUSING TO TREAT THE MOTION TO QUASH SERVICE AS A MOTION FOR RELIEF FROM DEFAULT.

Whether to construe a motion seeking one type of relief as a motion for a different type of relief is a matter for the trial court’s discretion. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) One of the matters the trial court must consider is whether the motion adequately sets forth the grounds and bases for the different motion and meets its procedural requirements. (Id. at p. 195.)

The motion to quash had two bases: (1) Korea was a more appropriate forum for the marital dissolution proceeding than California, and (2) service of the summons and petition was never effected on Park. The appropriateness of the forum is not a ground for relief from default. (Code Civ. Proc., § 473, subd. (b).) The trial court found that Park’s statements regarding the lack of personal service were not credible. Therefore, the trial court did not abuse its discretion by refusing to treat the motion to quash service as a motion for relief from default.

II.

THE TRIAL COURT DID NOT ERR BY DENYING THE MOTION FOR RELIEF FROM DEFAULT.

We review an order denying a motion to set aside a default for abuse of discretion. But we scrutinize such an order more carefully than an order granting a motion to set aside default. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981; Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-135.)

We begin with the accepted policy that matters should be heard on their merits. (Pearson v. Continental Airlines (1970) 11 Cal.App.3d 613, 619.) “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) “Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court’s exercise of discretion. [Citation.] Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Id. at p. 235, italics added.)

Park argues that, based on the facts of the case, he made a mistake of fact or had a reasonable excuse for not responding to the petition before defaulting. (Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523-524 [assumption that only one of two defendants had been served was a mistake of fact]; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1141-1142 [“categorical statements about what can be found to constitute excusable neglect—and what cannot—are highly suspect”].)

In his declaration filed in support of the motion for relief from default, Park stated that the summons, petition, and supporting documents were served on his son, but never on him. In the declaration attached to the amended motion, Park stated that neither he nor Kwon had lived in the United States since June 2017 (immediately after the dissolution petition was filed); both Park and Kwon were actively litigating divorce proceedings in Korea; and Kwon did not mail a copy of the request for entry of default to him, as required by section 587. Finally, in a reply declaration, Park stated for the first time that “[o]ne of the main reasons” he had not responded to the California dissolution matter was that the petition listed only three properties located in California. However, when the request for default and default judgment sought division of many more properties located around the world, Park, claiming surprise, saw the need to respond, and sought relief from default.

Was Park’s failure to respond to the summons and petition due to inexcusable neglect, and therefore did the trial court improperly deny Park’s request for relief from default? We note initially that the trial court expressed concerns with Park’s credibility at the hearing on the motion for relief from default, based on Park’s earlier statements regarding the alleged lack of personal service of the summons and petition.

As quoted, ante, the trial court explained that Park had “d[ug] himself a credibility hole” as a result of his ever-changing excuses for failing to respond to the summons and petition. The trial court, not this appellate court, judges the credibility of declarations. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) Obviously, the trial court decided that Park’s “follow the bouncing ball” technique of changing his explanation for why he had not responded to the summons and petition every time he submitted a declaration made all of his explanations incredible.

Park’s argument he should have been relieved from default because Kwon failed to serve the request for default on Park before filing it, as required by section 587 is without merit because it does not establish excusable neglect by Park. Section 587 provides, in relevant part: “An application by a plaintiff for entry of default . . . shall include an affidavit stating that a copy of the application has been mailed . . . to the defendant at his or her last known address and the date on which the copy was mailed. . . . [¶] No default . . . shall be entered, unless the affidavit is filed. The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment.” (Ibid., italics added.)

There is no dispute that Kwon did not serve the request for default pursuant to section 587. But Kwon satisfied the specific requirements for filing and serving a request for default under the rules applicable to family law cases; therefore, any failure to comply with section 587 is irrelevant. Kwon’s request for default was properly filed using the standard form for requesting entry of default in family law matters, Judicial Council Form FL 165. This form requires the party requesting default to provide “[a] copy of this Request to Enter Default, including any attachments and an envelope with sufficient postage . . . to the court clerk, with the envelope addressed [to] the respondent’s attorney or, if none, the respondent’s last known address[.]” (Italics in original.) This procedure is authorized by Family Code section 2335.5, which provides, in relevant part: “In a proceeding for dissolution of marriage or legal separation of the parties, where the judgment is to be entered by default, the petitioner shall provide the court clerk with a stamped envelope bearing sufficient postage addressed to the spouse who has defaulted, with the address of the court clerk as the return address, and the court clerk shall mail a copy of the request to enter default to that spouse in the envelope provided.” (Ibid.) It is undisputed that Kwon provided the necessary documents to the court clerk, and that the court clerk mailed those documents to Park on July 12, 2018. Because Kwon complied with the family court’s procedures regarding service and filing of a request for default, any failure to comply with section 587 does not support Park’s claim of excusable neglect.

Park also argues that because Kwon would suffer no prejudice, the bar to relief from default is exceptionally low. Kwon identified as potential prejudice that the delay in securing the California judgment was in turn delaying the Korean judgment, which the Korean court had indicated would address any issues left unresolved by the California judgment. Further, Kwon declared that in the Korean proceeding, Park was seeking almost 100 percent of the parties’ assets, and that if she were found to be the “guilty” party in the divorce, the Korean court might deny her any property. The potential for the Korean court to decide the dissolution matter and divide the parties’ property is a serious threat of prejudice to Kwon.

Even with the extra scrutiny required, we conclude the trial court properly exercised its discretion in denying the motion for relief from default.

III.

PARK’S ARGUMENT THAT THE JUDGMENT IS VOID FOR LACK OF DOMICILE CANNOT BE CONSIDERED FOR THE FIRST TIME ON APPEAL.

Park argues that the entire judgment is void because neither he nor Kwon was domiciled in California at the time the petition for dissolution was filed. A California court has in rem jurisdiction to adjudicate a marital dissolution if either spouse is domiciled in the state. (In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250.) For these purposes, domicile requires both physical presence in the state and the intent to remain in the state indefinitely. (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13-14.)

“Whether the residency requirement has been met is a question of fact and the burden of establishing residence is on the party asserting it.” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 153.) However, the issue of whether domicile has been established may be waived. (Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 725.)

Park has raised this issue for the first time on appeal. “Failure to raise specific challenges in the trial court forfeits the claim on appeal. ‘“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]’” [Citation.] “Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack . . . .”’” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

“This rule does not apply, however, if the new argument raises a pure issue of law on undisputed facts. [Citations.] On appeal, a party may raise a new issue of law based on undisputed facts [citation] and may even ‘change the legal theory he relied upon at trial, so long as the new theory presents a question of law to be applied to undisputed facts in the record.’” (C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1492.) Park’s contention that the parties were not domiciled in California was necessarily fact-specific, and cannot be considered on appeal as a legal issue based on undisputed facts.

IV.

PARK’S ARGUMENT THAT THE CHILD SUPPORT ELEMENT OF THE JUDGMENT IS VOID CANNOT BE CONSIDERED FOR THE FIRST TIME ON APPEAL.

Park argues that the portion of the default judgment which awarded child support to Kwon must be vacated because it is void for lack of notice. This argument, too, is raised for the first time on appeal and does not involve merely the application of law to undisputed facts. (C9 Ventures v. SVC-West, L.P., supra, 202 Cal.App.4th at p. 1492; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th at p. 564.)

V.

PARK’S ARGUMENT THAT THE DIVISION OF COMMUNITY PROPERTY IN THE JUDGMENT IS VOID IS NOT PROPERLY BEFORE THIS COURT.

Park argues that the division of community property in the default judgment is void because the judgment purports to divide property that was not listed in the petition. Park raised the same issue in a motion to vacate or set aside the judgment. After Park filed the notice of appeal, the trial court ordered the motion to vacate “off calendar.” This issue has never been decided by the trial court, and cannot be considered by this appellate court in the first instance.

The general rule is that when the responding party defaults, the family law court only has the jurisdiction to divide the assets actually identified in the petition. (Burtnett v. King (1949) 33 Cal.2d 805, 807 [trial court erred by awarding community property to the wife in default judgment where the pleadings never asked the court to determine the ownership of that property]; Biscaro v. Stern (2010) 181 Cal.App.4th 702, 711 [trial court erred by awarding condominium to the wife as her separate property in default judgment because the condominium was not identified as marital property in the wife’s petition]; In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 879-880 [identifying assets and liability in property declaration attached to the wife’s petition was sufficient to provide due process notice to the husband; trial court properly valued and divided property after the husband defaulted].)

The trial court in In re Marriage of Eustice (2015) 242 Cal.App.4th 1291 appeared not to follow this rule by including assets not mentioned in the wife’s petition when it entered default judgment. The procedural history of that case explains why the case is different. The wife’s petition requested that the parties’ property rights be determined, and that she did not know the full extent of the parties’ assets and debts. (Id. at p. 1296.) The husband filed a response which included a declaration of community and quasi-community property, and asked the court to determine the parties’ property rights. (Id. at pp. 1296-1297.) Due to the husband’s failure to comply with his production and accounting obligations, his response to the petition was stricken, and his default entered. (Id. at pp. 1298-1300.) A default judgment included the division of the properties that had been identified in the husband’s (stricken) response but not in the wife’s petition. (Id. at pp. 1301-1302.) The appellate court rejected the husband’s due process challenge to the default judgment because his “[r]esponse to the dissolution Petition and preliminary declaration demonstrated that he was on notice of the relief [the wife] was seeking and the property subject to disposition.” (Id. at p. 1307.)

Of particular relevance to our case is the following: “A petitioner’s list of assets and debts in a property declaration, preliminary declaration, and disclosure declaration fulfill the same notice function in a marital dissolution as do a statement of damages and punitive damages notice, provided the declarations are served on the respondent before entry of default.” (In re Marriage of Eustice, supra, 242 Cal.App.4th at p. 1304.) Here, the declarations regarding separate and community property that formed the basis for the trial court’s division of property were attached to the request for default and served by the court clerk after default was entered. When a full record is established in the trial court, there may or may not be a violation of due process.

Kwon’s respondent’s brief on appeal addresses this issue and explains why this appellate court should not be considering the issue in the first instance: “If Park had challenged the terms of the proposed judgment, Kwon could have presented evidence and briefing about how the principles of In re Marriage of Eustice[, supra,] 242 Cal.App.4th 1291 . . . appl[y] here. For example, Kwon could have demonstrated what notice Park actually received regarding the property claims before his default was entered—that he was not surprised by the proposed judgment. Park has not included those items in the appellate record, making this an inappropriate forum for him to first raise the issue.”

We agree that this court should not decide this issue in the first instance. We express no opinion on the issue, and nothing herein shall preclude Park or Kwon from litigating this issue pursuant to the previously filed motion to vacate or set aside the judgment, or otherwise.

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.