Marriage of Cruz and Montano CA6 ( 2021 )

Filed 4/7/21 Marriage of Cruz and Montano CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
In re the Marriage of CAROL CRUZ and H045398
ARSENIO RICHARD MONTANO. (Santa Clara County
Super. Ct. No. 2008-1-FL-145239)
CAROL CRUZ,
Appellant,
v.
ARSENIO RICHARD MONTANO,
Respondent.
Appellant Carol Cruz signed a stipulated order to resolve the dissolution of her
marriage to respondent Arsenio Richard Montano. Among other things, the parties
agreed that in return for Montano assuming all community debt, Cruz would give up her
community interest in Montano’s labor union retirement accounts. Cruz later sought to
void that order, alleging Montano had withheld information about the union retirement
accounts. The trial court denied Cruz’s motion after a hearing and entered judgment
based on the stipulated order. Cruz appealed from that judgment in a different case, but
abandoned that appeal. Cruz later unsuccessfully moved to set aside the judgment in the
trial court. Cruz appeals from the order denying her motion to set aside the judgment, but
her appellate briefing improperly attempts to attack the judgment directly and makes no
argument about that postjudgment order. For the reasons stated here, we will affirm the
order denying Cruz’s motion to set aside the judgment.
I. TRIAL COURT PROCEEDINGS
According to Cruz’s opening brief, Cruz and Montano married in 1991. Cruz
petitioned for dissolution in 2008. Cruz (then represented by counsel) sent Montano a
proposed stipulated judgment in 2015. The proposal, signed by Cruz, lists four types of
community retirement assets Montano possessed that a neutral expert would be hired to
separate between the parties: a military pension; a “401(a) Plan”; an “LU 393 Pension,
Part A”; and an “LU 393 Pension, Part B.” That stipulated judgment was never signed by
Montano.
A form stipulation and order (“settlement agreement”) was signed by the parties
and the trial court in February 2017. (Cruz was no longer represented by counsel when
she signed the agreement.) The parties agreed that Montano’s military pension would be
shared equally. Montano agreed to assume “all community property debt,” and in return
Montano would be “awarded his Retirement/Pension/401(k) accounts with UA Local 393
as his sole and separate property, without offset, and shall utilize funds in this account to
pay off community property debts and liabilities.”
The parties appeared at a hearing in September 2017 to discuss what the trial court
described as Cruz’s “motion to void the settlement agreement.” Cruz (still
unrepresented) contended that when she signed the settlement agreement she was not
aware that the UA Local 393 union pension had two components (both a traditional
defined benefit pension and a defined contribution pension). Montano’s counsel argued
that Cruz had notice of all union pension components, citing the proposed stipulated
judgment Cruz sent to Montano in 2015 that referenced both components. The trial court
denied Cruz’s motion to void the settlement agreement, finding “enough evidence before
this Court that over the course of this litigation it was disclosed to you and your counsel”
that Montano’s union pension included both components. The court signed the judgment
2
on the day of the hearing, and the settlement agreement was included as an attachment.
1
Notice of entry of judgment was entered and served on the parties in September 2017.
Cruz appealed from the September 2017 judgment (case No. H045137 in this
court), but abandoned that appeal. She also apparently moved to set aside the judgment
in the trial court. The record on appeal here includes a December 2017 trial court minute
order denying that motion, but Cruz did not include the motion itself in the record on
appeal. Cruz’s notice of appeal for this case (No. H045398) purports to appeal a
judgment after a jury trial, but the date stated for the appealed order is the date the trial
court denied her motion to set aside the judgment in December 2017.
II. DISCUSSION
According to the notice of appeal, the order at issue in this appeal is the
December 2017 order denying Cruz’s motion to set aside the judgment. A party may
move to set aside a judgment in two limited situations: (1) where the trial court used an
incorrect or erroneous legal basis for the decision that was not consistent with or not
supported by the facts; or (2) where the judgment was not consistent with or not
supported by the special verdict (if there is a jury trial). (Code Civ. Proc., § 663.) An
order denying a motion to set aside a judgment is appealable as an order after judgment.
(Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 134–135.) The instant appeal is therefore
timely as to arguments relating to the post-judgment order.
Cruz’s appellate arguments all relate to the September 2017 hearing where the trial
court entered judgment after denying her motion to void the settlement agreement. Those
arguments are not properly before us because Cruz abandoned her appeal from the
judgment (case No. H045137). And Cruz has not provided us with an adequate record to
1
The notice of entry of judgment was not made part of the record on appeal. We
obtained a copy of the filed document from the trial court. On the court’s own motion,
the record is deemed augmented with the notice of entry of judgment dated September 7,
2017. The clerk of this court is ordered to file the notice of entry as part of the record in
this proceeding.
3
review the trial court’s decision that is the subject of this appeal––the December 2017
order denying Cruz’s motion to set aside the judgment. Cruz did not include her motion
or the reporter’s transcript of the hearing on that motion. She also makes no argument
related to the December 2017 order in her appellate brief.
The appealing party has the “burden of showing reversible error by an adequate
record” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574), and must support its arguments
with citation to relevant authority. (People ex rel. 20th Century Ins. Co. v. Building
Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284.) We pointed out those
deficiencies to the parties and invited supplemental briefing about whether we should
affirm the denial of the motion to set aside the judgment based on Cruz not providing an
adequate record and not making any argument here challenging that order. Neither party
filed a supplemental brief. Because Cruz neither provided an adequate record nor made
any argument related to the order appealed from, the order denying her motion to set
2
aside the judgment must be affirmed.
III. DISPOSITION
The December 2017 order denying Cruz’s motion to set aside the judgment is
affirmed. Respondent is entitled to costs on appeal.
2
Cruz’s motion to augment the record, filed June 20, 2019, is denied.
4
____________________________________
Grover, J.
WE CONCUR:
____________________________
Bamattre-Manoukian, Acting P. J.
____________________________
Danner, J.
H045398 - Cruz v. Montano