Marriage of White CA4/2 ( 2015 )

Filed 1/15/15 Marriage of White CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
In re the Marriage of CHRISTINE L. and
KING WILLIAM WHITE.
CHRISTINE L. WHITE,
E059861
Appellant,
(Super.Ct.No. SWD1201180)
v.
OPINION
KING WILLIAM WHITE,
Respondent.
APPEAL from the Superior Court of Riverside County. Bradley O. Snell
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Christine L. White, in pro. per., for Appellant.
No appearance for Respondent.
I
INTRODUCTION
Appellant Christine L. White, who is representing herself, appeals from a marital
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dissolution order filed on October 15, 2013, terminating Christine and King William
White’s marital status only.1 She asserts the judgment erroneously ordered marital status
terminated on November 30, 2012. In addition, Christine argues the trial court failed to
take into account evidence of King’s acts of perjury and fraud, his failure to provide the
court with required information and documents, and his failure to appear at mandatory
court hearings. King has not filed a brief or appeared in this appeal.
For the reasons set forth below, we affirm the October 15, 2013 judgment
terminating marital status only.
II
FACTS AND PROCEDURAL BACKGROUND
In May 2012, King filed a petition for dissolution of marriage. His petition states
he was married to Christine in 1984, and separated on May 5, 2012. Christine and King
were married over 27 years at the time of separation and have one child, born in August
1995. King attached to the dissolution petition a schedule of assets and debts (form FL-
142), which stated King did not have any assets or debts. According to the proof of
service filed with the court, King personally served Christine with the dissolution petition
on May 29, 2012.
In June 2012, King filed a request to enter default on the dissolution petition.
King also filed a declaration for default. On July 10, 2012, the trial court entered a
default judgment, filed on July 12, 2012, stating the court acquired jurisdiction on May
1 We use the parties’ first names to avoid confusion, not out of disrespect.
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29, 2012, and ordered dissolution of marriage. The court ordered marital status would
end on November 30, 2012 (six months after Christine was served with the dissolution
petition). The default proceeding was heard by declaration under Family Code section
2336.2 Jurisdiction was reserved for determination of child and spousal support. The
judgment states there were no property issues before the court. The court terminated
jurisdiction over property issues.
In October 2012, Christine filed a request for an order to set aside default (motion)
and a response to the dissolution petition. She attached an income and expense
declaration (form FL-150). Christine stated in her motion that she had debts totaling
“$143,356.00[,] without student loans[,] $5,356.00.” Christine attached a supporting
declaration stating she was not provided with any information regarding the date, time, or
department of the hearing resulting in dissolution of her marriage. She also was not
given an opportunity to respond to the dissolution petition. In addition, King failed to
provide a statement of his income and expenses (form FL-150). Christine stated that she
and King had acquired debt, some of which was in King’s name alone. Christine
acknowledged they were both responsible for the debt. She noted King is disabled but
can work part-time and receives disability benefits. He is a licensed minister and can also
earn income drawing and painting.
Christine further stated in her supporting declaration that she and King stopped
engaging in marital relations and responsibilities in April 2012, when King moved out of
2 Unless otherwise noted, all statutory references are to the Family Code.
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their bedroom, to another part of the house. They attended marriage counseling in an
attempt to save their marriage. Christine believed that, with counseling and forgiveness,
they could overcome their differences and restore their marriage. Christine requested the
default set aside on the grounds she was not provided with notice of the hearing or the
hearing documents, she did not sign any documents in court regarding this matter, and
King did not provide a statement of his income and expenses. Christine added that both
she and King had insurmountable debts and student loans, accumulated during their 28-
year marriage.
In November 2012, Christine filed another request for an order setting aside
default. Christine stated in her attached declaration that she was requesting the court to
set aside default on the grounds King failed to inform the court of their credit card debt;
her “check” was being garnished, making it difficult to pay rent and bills; they owed the
Department of Public Social Services (DPSS) and Riverside Housing Authority money
for back-rent; the dissolution would affect health coverage, which Christine needed for
anticipated medical treatment; and King had filed a fraudulent proof of service of the
dissolution petition, since not all of the dissolution papers were served on her. Christine
acknowledged she was served but stated, “[n]ot all papers p[er]taining to the divorce
were served [on] me. I received the form to write my income.” The trial court set the
matter for a noticed hearing on January 23, 2013.
The trial court consolidated Christine’s two requests to set aside default, with both
to be heard on January 23, 2013. At the hearing on January 23, 2013, the trial court
granted Christine’s requests to set aside the default and judgment, but with marital status
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to remain terminated and all conditions previously ordered not in conflict to remain in
full force and effect. Christine was permitted to file an answer to King’s dissolution
petition within 30 days.
In March 2013, Christine filed a response and request for dissolution of marriage.
She stated in her response that she and King no longer had any minor children. Christine
attached a schedule of assets and debts (FL-142), a preliminary declaration of disclosure
(FL-140), an income and expense declaration (FL-150), and statements of all material
facts and information regarding valuation of community property assets and obligations.
In April 2013, Christine filed a motion to strike the dissolution petition, restrain
King from disposing of property, and preclude King from using a 2001 Oldsmobile.
Christine also requested to be permitted to proceed by default judgment and be named
petitioner, because King did not inform the court of their credit card and loan debt or his
use of the Oldsmobile. He also did not appear at the previous hearing, and refused to
sign the judgment documents dividing their property equally.
In June 2013, the trial court heard Christine’s motion to strike King’s dissolution
petition. King was not present at the hearing. The court found King had not participated
in the case. The court struck King’s petition for dissolution and ordered Christine’s
response deemed the petition for dissolution, replacing King’s petition, with Christine
named the petitioner. The court informed Christine she could proceed by way of default.
The court further ordered that all conditions previously ordered, that were not in conflict,
would remain in full force and effect.
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On October 8, 2013, the trial court conducted a prove-up hearing regarding marital
status and signed a judgment of dissolution status only. On October 15, 2013, the court
filed the judgment of dissolution status, stating the court acquired jurisdiction on May 29,
2012, the matter was contested at a hearing on January 23, 2013, and judgment of
dissolution was entered with marital status ordered terminated as of November 30, 2012.
The court also set the matter for a mandatory settlement conference in December 2013
and ordered King to file an income and expense declaration by December 2, 2013.
Christine filed a notice of appeal of the October 8, 2013 order, which this court
deemed a notice of appeal of the October 15, 2013 judgment, which was entered on
October 8, 2013, but filed on October 15, 2013.
III
NOTICE OF HEARING
Christine contends she did not receive notice of the hearing on King’s dissolution
petition. Therefore the order entering default against her and terminating her marriage
must be set aside. This objection lacks merit. Although the default judgment on July 12,
2012, states the matter was “heard,” the judgment further states the hearing was a
nonappearance hearing by declaration. There was no noticed hearing on the dissolution
petition because Christine was in default for not filing a timely response to the dissolution
petition. The trial court therefore decided the matter under section 2336 during a
nonappearance hearing, based on King’s default declaration.
Furthermore, Christine eventually appeared in the proceedings, succeeded in
persuading the trial court to vacate the default judgment, and requested in her answer to
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King’s dissolution petition that the court terminate marital status and name her the
petitioner. The court granted Christine’s requests and the dissolution proceedings
continued, with the trial court conducting a prove-up hearing on marital status on October
8, 2013, which Christine and her daughter attended. After conducting the hearing, the
court signed a judgment terminating marital status only. Christine has not established
reversible error based on a lack of notice.
IV
EFFECTIVE DATE OF MARRITAL DISSOLUTION
Christine contends the trial court erred in ordering in the July 12, 2012 and
October 15, 2013 judgments that the effective date of marital dissolution was November
30, 2012. We disagree.
Christine correctly notes that there is a six-month marital dissolution waiting
period. Section 2339, subdivision (a) provides: “Subject to subdivision (b) and to
Sections 2340 to 2344,3 inclusive, no judgment of dissolution is final for the purpose of
terminating the marriage relationship of the parties until six months have expired from
the date of service of a copy of summons and petition or the date of appearance of the
respondent, whichever occurs first. [¶] (b) The court may extend the six-month period
described in subdivision (a) for good cause shown.” Section 2340 provides: “A
judgment of dissolution of marriage shall specify the date on which the judgment
becomes finally effective for the purpose of terminating the marriage relationship of the
3 Section 2344 is inapplicable. It pertains to death of either party after entry of
the judgment.
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parties.”
In the instant case, King personally served Christine with the dissolution petition
on May 29, 2012. Because Christine did not file a timely response to the petition, the
trial court granted in July 2012, King’s request for entry of default and appropriately
ordered marital dissolution “finally effective for the purpose of terminating the marriage
relationship of the parties” on November 30, 2012. (§ 2340.) The effective date is at
least six months after King’s service of the dissolution petition on May 29, 2012, and
therefore is in accordance with section 2339.
Although the trial court later set aside the July 12, 2012 default judgment, the trial
court ordered that Christine and King’s marital status was to remain terminated and all
conditions previously ordered not in conflict to remain in full force and effect. Therefore
the trial court order terminating marital status remained in full force and effect. The
order was ultimately incorporated in the marital status judgment on October 15, 2013.
Christine argues that when the court entered the July 12, 2012 judgment, the order
terminating marital status was premature under sections 2339 and 2340 because the six-
month delay period had not run. Sections 2339 and 2340 do not preclude the trial court
from entering an order before the six-month period has run. These sections only require
the court order to state the effective date of the marital dissolution order, and that
effective date must be in accordance with the six-month limitation. Here, the November
30, 2012 effective date is in accord with the section 2339 six-month waiting period and
was not premature at the time of entry of the marital status judgment on October 15,
2013.
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V
KING’S FAILURE TO PROVIDE REQUIRED
INFORMATION AND DOCUMENTS
Christine argues the marital dissolution judgment must be vacated because King
failed to disclose required information and did not properly fill out and file a proper
dissolution petition, schedule of assets and debts, income and expense declaration,
settlement document, and judgment paperwork. Christine asserts that the dissolution
proceedings therefore should have been dismissed. But Christine has not established she
was kept in ignorance due to any conduct on the part of King, such that she was
prevented from meaningfully participating in the proceedings resulting in termination of
marital status. (§ 2122, subd. (a).) The record demonstrates the trial court was aware of
all of the facts, including King’s nondisclosure and misstatement of facts, when ruling on
Christine’s motion to set aside default and during subsequent proceedings. Although
Christine objects to the court terminating her marital status, she has not met her burden of
proving any error requiring reversal of the order.
This court is required to “presume the judgment is correct, indulge every
intendment and presumption in favor of its correctness, and start with the presumption
that the record contains evidence sufficient to support the judgment.” (Steele v. Youthful
Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) “A fundamental rule of
appellate review is that ‘“[a] judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support [the judgment] on matters as to
which the record is silent, and error must be affirmatively shown.”’ [Citations.]”
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(Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841.) To overcome this
presumption, Christine must provide an adequate record that demonstrates error. (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Here, the record does not support Christine’s
contentions challenging the judgment terminating marital status.
Christine argues she informed the trial court that King failed to disclose material
information and provided false information but the trial court disregarded her
contentions. Christine relies in part on statements made during hearings and facts,
without citing to the record as required by California Rules of Court, rule 8.204(a)(1)(C)),
and no evidence in the record supports such facts or statements. This court cannot
consider such facts and statements, which are not supported by the record on appeal. An
appellant is required to provide proper citations to the record, by citing to “either the
clerk’s or reporter’s transcript.” (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1258, fn.
12 [noting brief did not comply with Cal. Rules of Court, rule 8.204(a)(1)(C) in that it
failed to contain “proper citations to the appellate record”].) In deciding Christine’s
appeal, this court is limited to determining whether Christine’s contentions are supported
by the clerk’s transcript alone, since there is no reporter’s transcript.
Christine contends the trial court failed to conduct a hearing concerning child
support and custody issues. She also complains King did not provide an income and
expense declaration, and failed to disclose that, up until August 31, 2012, he received
$445 in monthly social security income for Christine and King’s daughter, who turned 18
in August 2012. Christine asserts she should have received the social security income,
because their daughter was living with Christine, and King should have also paid for a
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portion of their daughter’s expenses. But the July 12, 2012 default judgment was vacated
and the October 15, 2013 judgment was limited to termination of marital status, with
jurisdiction reserved as to child custody/visitation, child and spousal support, and
property division issues.4 Furthermore, the child related issues were moot since Christine
and King’s daughter was no longer a minor at the time of the October 15, 2013 judgment.
Even though King did not disclose material facts in his dissolution petition and
made misrepresentations as to his income, assets and debts, the trial court properly
addressed such wrongdoing by setting aside the July 12, 2012 default judgment. As to
the October 15, 2013 judgment terminating marital status, King’s misrepresentations,
concealment of facts, and failure to file an income and expense declaration were not
relevant to the termination of marital status.
The filing of an income and expense declaration is required in a marital
dissolution proceeding when it is “appropriate” and “relevant.” The failure to file final
income and expense statements and other disclosure documents required by family law
provisions cannot lead to reversal unless the appellant establishes prejudice. (In re
Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524, 527-528; Burkle v.
Burkle (2006) 144 Cal.App.4th 387, 403 [recognizing that filing an income and expense
declaration is “not a jurisdictional requirement” and that “although a rule of court phrased
in mandatory language is generally binding on the courts, departure from the rule is not
4 Christine states in her appellant’s opening brief that the court set a
settlement/trial date of May 6, 2014, presumably at which time the remaining issues
would be decided.
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reversible error unless prejudice is shown”].) Here, the income and expense declaration
was not relevant to termination of marital status. Therefore, King’s failure to file an
income and expense declaration does not constitute prejudicial error.
Likewise, Christine’s contention that she was deprived of her right to due process
on the issue of termination of marital status lacks merit. Procedural due process requires
that a party have notice and an opportunity to be heard. (Anderson v. Superior Court
(1989) 213 Cal.App.3d 1321, 1329 [“the United States Supreme Court [has] held that due
process require[s] timely and adequate notice and an effective opportunity to be heard”].)
Here, Christine has not cited any evidence in the record establishing that she was
deprived of a meaningful opportunity to contest termination of marital status. The record
shows she received notice and a fair hearing before the court entered the October 15,
2013 judgment terminating marital status.
Christine argues King’s proof of service of his dissolution petition was fraudulent
and she raised this objection in the trial court. There is no evidence in the record proving
this allegation. Therefore this court must presume the trial court found otherwise based
on the evidence before it. Furthermore, any deficiency in the proof of service is moot
because Christine appeared in the proceedings, the court struck King’s dissolution
petition, and, at Christine’s request, the court deemed Christine the petitioner and her
response, the petition. Christine argues the trial court erroneously “excluded” her petition
for dissolution. The record does not show any evidence of this, assuming Christine is
arguing the trial court did not properly consider her dissolution petition or dismissed it.
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Christine has not carried her burden on appeal. She has not demonstrated that she
is entitled to relief on the grounds of fraud or perjury. Christine also has not
demonstrated that, after the trial court vacated the July 12, 2012 default judgment, she
was prevented from fully participating in the proceedings resulting in termination of
marital status. There is therefore no legal basis for setting aside the October 15, 2013
judgment terminating marital status.
VI
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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