Filed 5/18/20 Marriage of Fuggs CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of SHAWN and CANDICE FUGGS.

SHAWN FUGGS,

Appellant,

v.

CANDICE FUGGS,

Respondent.

2d Civ. B298126

(Super. Ct. No. 1458164)

(Santa Barbara County)

Shawn Fuggs appeals an order setting aside a 2014 default judgment of marital dissolution and ordering appellant to pay spousal support to his ex-wife Candice Fuggs. Appellant contends that the trial court lacked jurisdiction to vacate the judgment because the six-month (Code Civ. Proc., § 473, subd. (b)) and one-year (Fam. Code, § 2122, subds. (a)-(b)) statutes of limitations for fraud and perjury have run. We affirm.

Appellant and Candice were married 14 years two months, have two children, and separated on October 16, 2013. Appellant filed a petition for marital dissolution on November 15, 2013, declaring no martial assets or debts. The petition prayed that the trial court terminate jurisdiction to award spousal support. Appellant entered a default on April 22, 2014 and filed an income and expense declaration a month later stating that his monthly income was $6,530. A default judgment of dissolution was entered September 8, 2014 and provided for “base child support.”

On August 28, 2017, Candice filed a motion to set aside the default judgment, requesting that the trial court order child and spousal support, and divide the community property including appellant’s pension. The supporting declaration stated that “I never received any formal divorce papers” and that appellant paid $1,950 a month support, plus rent and an extra $200 per pay period after they separated. Appellant threatened not to pay rent in May 2017 when Candice refused to let appellant remove a silk screening machine from the garage. Candice consulted an attorney and discovered that appellant had not disclosed community assets or his pension in the dissolution petition. Appellant was a police officer, earning $12,000 a month. Although the default judgment stated that spousal support was “terminated,” appellant was paying $1,950 a month support and declaring it on his tax returns. Candice’s motion noted that the 2014 request for entry of default did not include an income and expense declaration and Candice was not served with a declaration of disclosure or the request for entry of default.

In opposition to the motion, appellant stated “I personally handed Candice the divorce paperwork,” that he paid support and rent for four years, and that Candice agreed to divide the property “outside of the court.” Appellant stated that he would divide his pension pursuant to the “‘time rule’” and pay child support. “Spousal support was terminated by the Court but I agree to pay Candice a reasonable amount of spousal support.”

At the hearing on the motion, appellant changed theories and argued that the trial court had no jurisdiction to set aside the default judgment with respect to spousal support because more than one year had elapsed since the alleged fraud and perjury. (§ 2122, subds. (a)-(b).) The trial court, on October 6, 2017, ordered appellant to prepare a Qualified Domestic Relations Order (QDRO) dividing the pension, pay child and spousal support retroactive to May 2017, and pay Candice’s rent until further order of the court subject to the condition that the rent payments would be offset against spousal support once determined. Appellant did not appeal the order and filed the stipulated QDRO order on January 25, 2019.

Following a hearing on spousal support, the trial court modified the 2014 default judgment and awarded Candice $900 a month support commencing February 1, 2019 and terminating on May 31, 2024. The judgment stated “this order is a modification of a prior order and as such by agreement of the parties is taxable to the recipient and deductible by the payor.” The judgment awarded appellant a 2002 Ford 250, accrued vacation pay as of the date of separation, and all personal property in his possession including the silk screen equipment, scuba gear and fishing equipment, and one-half the community property interest in appellant’s pension. Candice was awarded $7,500 attorney fees.

Discussion

Appellant argues that the trial court had no jurisdiction to set aside the 2014 default judgment because more than a year elapsed from the alleged fraud or perjury. (§ 2122, subds. (a)-(b).) In the alternative, he argues that the six-month statute of limitations to set aside the default judgment (Code Civ. Proc., § 473, subd. (b)) has elapsed based on Candice’s inexcusable negligence. The trial court correctly rejected these arguments.

First, appellant agreed to vacate the default judgment when he stipulated to child support, temporary support, and the QDRO order to divide his pension. Appellant did not appeal the October 6, 2017 order.

Two years later on April 4, 2019, the trial court ordered a step-down of spousal support that modified the October 2017 order to pay rent in lieu of support. The April 4, 2019 order provides that the parties agree the support is taxable to Candice and deductible by appellant and the parties will have their tax returns prepared by the same tax preparer.

Appellant is estopped from arguing that the trial court lacked jurisdiction to set aside or modify the 2014 default judgment after he entered into stipulated orders in 2017 for temporary support and division of the pension plan. If there was error, appellant acquiesced to it (Civ. Code, § 3516) and may not pick and choose the beneficial parts of the judgment he wants to keep, i.e., the tax deduction provision for support, the award of the Ford 250, accrued vacation pay, the silk screen equipment, and the scuba gear and fishing equipment. (Civ. Code, § 3521 [“He who takes the benefit must bear the burden”]; § 2128, subd. (c) [family law court may act as a court of equity].)

Assuming that the trial court had jurisdiction to order child support and divide property, but not order spousal support, the statute of limitations argument fails. Section 3691, subdivision (a) preempts traditional set-aside law and governs relief from a support order after the six-month time for Code of Civil Procedure section 473, subdivision (b) relief expires. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2019) ¶ 16:164-16:164.1, p. 16-50.) Section 3691 “makes no distinction in the type of ‘actual fraud’ it covers.” (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910 (Zimmerman).) Equitable tolling, does however, extend the statute of limitations “‘to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice. . . .’” (Id. at p. 911.)

That is the case here. Candice did not discover the fraud until May 2017, when appellant threatened to stop paying rent. Candice spoke to an attorney, went to the courthouse, and discovered the default judgment. The motion to modify/set aside the default judgment was filed on August 28, 2017, well within the six-month (Code Civ. Proc. § 473; § 3691, subds. (a)-(c)) and one-year (§ 2122, subds. (a)-(b)) statutes of limitations periods. The equitable tolling doctrine permits “‘“a balancing of the injustice to the [appellant] occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the . . . limitations statute.” [Citation.]’ [Citations.]” (Zimmerman, supra, 183 Cal.App.4th at p. 911.)

Candice was earning $2,000 a month (1/6th appellant’s income), was the children’s primary caregiver, received support and rent from appellant for four years, and was presumptively entitled to support based on a long term marriage. (§ 4336, subd. (b); In re Marriage of Morrison (1978) 20 Cal.3d 437, 453.) “Except on written agreement of the parties to the contrary or a court order terminating spousal support, the [trial] court retains jurisdiction indefinitely in a proceeding for dissolution of marriage . . . where the marriage is of long duration.” (§ 4336, subd. (a).) The trial court ordered a four-year step down of spousal support and gave a Gavron warning (In re Marriage of Gavron (1988) 203 Cal.App.3d 705) that Candice must make a reasonable good faith effort to be self-supporting. Appellant makes no showing that the trial court lacked jurisdiction or abused its discretion in making the orders.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
Timothy J. Staffel, Judge

Superior Court County of Santa Barbara

______________________________

M. Jude Egan, attorney for Appellant.

No appearance for Respondent.