Opinion
F074790
06-19-2018
JANENE WILKINS, Respondent, v. KEENAN WILKINS, Appellant.
Keenan Wilkins, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 686620)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Jack M. Jacobson, Judge. Keenan Wilkins, in pro. per., for Appellant. No appearance for Respondent.
Before Hill, P.J., Levy, J. and Peña, J.
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Husband appeals from the order denying his motion to set aside the judgment in this dissolution proceeding. He contends the judgment should have been set aside because the trial court failed to comply with certain statutory requirements and the judgment is void on its face. We conclude husband has not demonstrated any abuse of discretion in the denial of the motion, or any jurisdictional error on the face of the record. Consequently, the trial court did not err in denying the motion, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Husband moved to set aside the judgment on the ground it was void on its face. He contended the judgment was void because wife failed to serve and file mandatory financial disclosure forms pursuant to Family Code sections 2104, 2105, and 2106. As a result, he contended the trial court was without jurisdiction to enter the judgment. In support of the motion, husband also asserted the judgment should be set aside because it was entered based on fraud, the trial court "stripped" him of his parental rights without explanation, and the trial court permitted him to appear at trial only by declaration.
All further statutory references are to the Family Code unless otherwise indicated.
Husband is, and was at the time of trial, a self-represented prison inmate.
The trial court denied the motion. It found husband had not provided competent, admissible evidence supporting the claim that wife had not served the required disclosures; the trial court had found at trial that there was no property to be divided, so there was good cause to waive such disclosures; and husband knew or should have known of the failure to disclose and any fraud issues prior to trial, so the motion as to those issues was time barred. As to the claims regarding parental rights and participation at trial, the trial court concluded those issues were raised and decided in the prior appeal from the judgment. Husband appeals from the denial of the motion to set aside the judgment.
We grant husband's renewed request to augment the record, filed June 8, 2017. In the interests of justice, in our review of the evidence in support of husband's motion to set aside the judgment, we have included the evidence in the augmented record. This consisted of a motion for reconsideration of the denial of the motion to set aside the judgment, and supporting documents. Husband represented he sent the motion for reconsideration and supporting documents to the trial court for filing, but the trial court rejected them because the motion did not use the required form.
In his opening brief, husband requested that we take judicial notice of the record filed in his prior appeal from the judgment in this matter (Wilkins v. Wilkins (July 11, 2016, F069230) [nonpub. opn.]). Husband did not comply with the requirements for a motion for judicial notice (Cal. Rules of Court, rule 8.252), and we therefore deny that request. Because the trial court, in its ruling, relied upon our decision in the prior appeal, however, we will take judicial notice of that decision. (Evid. Code, § 459, subd. (a).)
DISCUSSION
I. Appealability of Order
An appeal may be taken from an order issued after an appealable judgment, including the denial of a motion to set aside the judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.) Additionally, when a party brings a motion to set aside the judgment on the ground the judgment is void, the order on the motion may be appealed even if the underlying judgment was also appealable. This is because an order giving effect to a void judgment is itself void and appealable. (Residents for Adequate Water v. Redwood Valley County Water Dist. (1995) 34 Cal.App.4th 1801, 1805.)
II. Standard of Review
We review an order denying a motion to set aside a dissolution judgment for abuse of discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." ' . . . The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion." (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) The reviewing court cannot substitute its judgment for the judgment of the trial court. (Marriage of Varner, at p. 138.) The burden is on the appellant to establish an abuse of discretion. (Marriage of Rosevear, at p. 682.)
III. Failure to Serve Disclosure Statements
Husband contends the trial court should have set aside the judgment because the parties failed to serve on each other financial disclosure forms as required by statute. In order to provide full and accurate disclosure of the parties' assets and liabilities, each party to a proceeding for dissolution of marriage is required to serve on the other party a preliminary declaration of disclosure under section 2104, and a final declaration of disclosure under section 2105, unless specified exceptions apply. (§ 2103.) If one party fails to serve a declaration of disclosure when required, and if the other party has served the declaration of disclosure on the noncomplying party, the complying party may, within a reasonable time, request that the noncomplying party prepare the declaration of disclosure. (§ 2107, subd. (a).) If the noncomplying party fails to comply with that request, the complying party may take specified actions, including filing a motion to compel a response. (Id., subd. (b).)
Unless the parties mutually waive service of the final declaration of disclosure, or the trial court makes a finding of good cause, "no judgment shall be entered with respect to the parties' property rights without each party . . . having executed and served a copy of the final declaration of disclosure and current income and expense declaration." (§ 2106.) With certain exceptions, "if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error." (§ 2107, subd. (d).)
"In proceedings for dissolution of marriage, . . . the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating . . . division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter." (§ 2121, subd. (a).) A party may move to set aside the property judgment based on failure to comply with the disclosure requirements. (§ 2122, subd. (f).) Before granting a motion to set aside the judgment, however, "the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief." (§ 2121, subd. (b).)
In support of his motion to set aside the judgment, husband presented no evidence demonstrating that wife failed to serve the preliminary or final declaration of disclosure. Even if he had done so, however, he did not present any evidence showing that the failure to serve the declaration materially affected the original outcome (i.e., the judgment determining the property division) or that husband would have materially benefited from the trial court granting the motion and setting aside the judgment. (§ 2121, subd. (b).)
"[T]he failure on the part of two divorcing spouses to exchange final declarations of disclosure [citation] does not constitute a 'get-a-new-trial-free' card, giving either one of them the automatic right to a new trial or reversal on appeal when there is no showing of a miscarriage of justice." (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 522 (Steiner).) The court in Steiner determined that, in spite of the language in section 2107, subdivision (d), that no judgment shall be entered without service of the declarations of disclosure and "[t]he failure to comply with the disclosure requirements does not constitute harmless error," "[t]he California Constitution trumps any conflicting provision of the Family Code." (Steiner, at p. 527.) Prior cases, decided before the addition of the "harmless error" language to section 2107, subdivision (d), relied on the constitutional provision that a judgment may not be set aside for procedural error unless the error resulted in a miscarriage of justice (Cal. Const., art VI, § 13) to conclude that the party seeking relief must show that some prejudice resulted from the failure to comply with the disclosure requirements in order to prevail on a motion to set aside the judgment. (Steiner, at p. 526, citing In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 336 (McLaughlin) and In re Marriage of Jones (1998) 60 Cal.App.4th 685, 694 (Jones).)
"To the degree, then, that section 2107, subdivision (d) is read for the proposition that a judgment must be set aside . . . solely because of a failure to exchange final declarations of disclosure, it is not consistent with our state's Constitution." (Steiner, supra, 117 Cal.App.4th at p. 527.) The Steiner court also found that proposition was directly inconsistent with section 2105, subdivision (c), which provides that " '[i]n making an order setting aside a judgment for failure to comply with this section, the court may limit the set aside to those portions of the judgment materially affected by the nondisclosure.' " (Steiner, at p. 527.) "The idea of material effect by reason of nondisclosure cannot be squared with the proposition that a judgment not materially affected at all by nondisclosure must be set aside." (Ibid.)
Interpreting section 2107, subdivision (d), as requiring a judgment to be set aside due to nondisclosure, even in the absence of prejudice, is also directly inconsistent with section 2121, subdivision (b). Section 2121, subdivision (b), states that, before granting relief on a motion to set aside the judgment, "the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief." Under this subdivision, in order to obtain relief, the moving party must demonstrate he or she was disadvantaged (i.e., prejudiced) by the lack of disclosure and would benefit from vacating the judgment and requiring disclosure. Thus, the trial court was authorized to set aside the judgment only if the evidence showed it was reasonably probable a result more favorable to husband would have been reached in the absence of the nondisclosure. (Jones, supra, 60 Cal.App.4th at p. 694; McLaughlin, supra, 82 Cal.App.4th at pp. 336-337.)
The party seeking to set aside the judgment must make an evidentiary showing of prejudice resulting from the failure to comply with the disclosure requirements. (Jones, supra, 60 Cal.App.4th at pp. 694-695.) Husband has not directed us to any evidence in the record that would support a finding that the failure to serve disclosure declarations materially affected the original outcome or a finding that husband would materially benefit from setting aside the judgment; we have found none. (§ 2121, subd. (b).) In its order denying the motion to set aside the judgment, the trial court stated that it "found at trial that there were no items of property or obligations appropriate for division." Husband submitted no contrary evidence in support of his motion. He presented no evidence showing there were marital assets to be divided or there was a reasonable probability that, if disclosure had been made, there would have been a property division more favorable to him. Consequently, husband did not carry his burden of demonstrating that the failure of the parties to comply with the requirements of serving financial disclosure statements was prejudicial to him. In the absence of such evidence, the trial court did not abuse its discretion by denying husband's motion to set aside the judgment.
IV. Fraud
Another ground on which a judgment adjudicating the division of property in a dissolution proceeding may be set aside is fraud. Under section 2122, subdivision (a), a party may move to set aside the judgment for "[a]ctual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding." Husband cites fraud as one basis on which the judgment should have been set aside. In his brief, he asserts "[i]t can only be assumed" that wife falsely represented at trial that there were no assets to divide. In support of his motion to set aside the judgment, husband presented no evidence of fraud. He presented no evidence that wife made any misrepresentations to him concerning the marital assets, or that he relied on them to his detriment. He presented no evidence that her representations "in some . . . manner . . . prevented [him] from fully participating in the proceeding." (§ 2122, subd. (a).)
Husband failed to establish the prerequisites to setting aside the judgment on the ground of fraud. In the absence of such evidence, the trial court did not abuse its discretion by denying husband's motion to set aside the judgment.
V. Sufficiency of the Trial
Husband also contends the trial court should have set aside the judgment because (1) the trial court improperly required him to appear at trial by declaration and (2) he was not given an adequate hearing on custody and visitation issues. Neither is among the statutory grounds for setting aside the judgment set forth in section 2122. We address below husband's contention that the judgment is void on its face because of these asserted errors.
VI. Void Judgment
Husband contends the judgment must be set aside because it is void on its face. " 'It is the settled law of California that a judgment or order which is void on its face, because its infirmity is determinable from an inspection of the judgment roll or the record, may be set aside on motion at any time after its entry by the court which rendered the judgment or made the order.' " (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.) For the judgment to be void, however, the infirmity apparent on the face of the record must be one of jurisdictional dimension.
"A litigant may collaterally attack a final judgment for lack of personal or subject matter jurisdiction, or for granting relief that the court had no power to grant, but may not collaterally attack a final judgment for nonjurisdictional errors. [Citations.] ' "If a judgment, no matter how erroneous, is within the jurisdiction of the court, it can only be reviewed and corrected by one of the established methods of direct attack." ' " (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854.) Thus, the key questions are whether the alleged error appears on the face of the record and, if so, whether it would render the judgment void because it was beyond the jurisdiction of the court, or whether it was merely erroneous, but within the jurisdiction of the court. (Ibid.)
" 'A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction "relates to the inherent authority of the court involved to deal with the case or matter before it." [Citation.] Lack of jurisdiction in this "fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.] [¶] In a broader sense, lack of jurisdiction also exists when a court grants "relief which [it] has no power to grant." ' " (In re Andres G. (1998) 64 Cal.App.4th 476, 482.) In this broader sense, a court acts in excess of its jurisdiction when, " ' "though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." ' " (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1087-1088.) When a statute designates the exclusive method or procedure by which the court is authorized to act, and the court acts contrary to the authority so conferred, the court has exceeded its jurisdiction. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661; Texas Co. v. Bank of America National Trust & Sav. Assn. (1935) 5 Cal.2d 35, 39-40.)
The court in Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330 distinguished between statutory requirements that are merely mandatory and those that are jurisdictional. "[A] party's failure to comply with a mandatory requirement 'does not necessarily mean a court loses fundamental jurisdiction resulting in "an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." ' " (Id. at p. 341.) "[J]urisdictional rules are mandatory, but mandatory rules are not necessarily jurisdictional." (Id. at p. 342.) "For example, a statute of limitations may be 'mandatory in the sense that the court may not excuse a late complaint on grounds of mistake, neglect, or the like,' but 'it is not "jurisdictional." ' (Id. at p. 341.) An untimely complaint may require dismissal, and a failure to dismiss it on the defendant's motion is error reversible on appeal; a judgment entered on such a complaint, however, may not be collaterally attacked on that ground. (Ibid.) "Noncompliance with a mandatory rule can result in invalidation of the action so long as the noncompliance is properly raised; a party can forfeit its challenge to the noncompliance by failing to object. Noncompliance with a jurisdictional rule cannot be excused or forfeited; a party may assert such noncompliance for the first time on appeal or in a collateral attack as a ground for invalidating the action." (Id. at p. 342.)
As discussed below, husband has not demonstrated that any of his asserted grounds for vacating the judgment rendered the judgment void on its face.
A. Failure to serve declarations of disclosure
Compliance with the requirements of serving declarations of disclosure is not jurisdictional. (See McLaughlin, supra, 82 Cal.App.4th 336 [compliance with § 2104 is not jurisdictional].) Section 2104, subdivision (a), provides: "Except by court order for good cause, as provided in Section 2107, or when service of the preliminary declaration of disclosure is not required pursuant to Section 2110," each party shall serve a preliminary declaration of disclosure. Section 2105 permits the parties to stipulate to waiver of the requirement of serving a final declaration of disclosure under specified circumstances. (§ 2105, subd. (d).) Section 2106 provides that: "Except as provided in subdivision (d) of Section 2105, Section 2110, or absent good cause as provided in Section 2107, no judgment shall be entered with respect to the parties' property rights without" service of the final declarations of disclosure.
Thus, while the requirement of serving declarations of disclosure is expressed in mandatory terms, the statutes themselves contain exceptions and provisions for excusing compliance. The parties' failure to serve the declarations does not deprive the court of all power to enter judgment in the proceeding. Further, the court is expressly authorized to set aside a judgment on the ground of failure to comply with the disclosure requirements only if it finds that the failure to comply materially affected the outcome and that the moving party would materially benefit from the granting of the relief. (§§ 2121, subd. (b), 2122, subd. (f).) This requirement that the moving party be prejudiced by the error in order to have the judgment set aside is inconsistent with jurisdictional error. Prejudice is not required in order to set aside a judgment void due to jurisdictional error. (Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353-1354.)
Consequently, husband's challenge to the judgment on the ground it is void on its face because the parties failed to serve the declarations of disclosure is without merit.
B. Fraud
Husband has not demonstrated any fraud rendering the judgment void on its face. He has not identified anything in the record that demonstrates fraud. Rather, he simply assumes in his argument that wife committed fraud during the trial. The trial proceedings are not part of the record. Any such error is not apparent on the face of the record.
C. Appearance at trial
Husband asserts that the motion to set aside the judgment should have been granted because the trial court erred by requiring him to appear at trial by declaration. Husband makes no argument in his brief that this alleged error rendered the judgment void for lack of fundamental jurisdiction. He does not claim lack of subject matter or personal jurisdiction. He also does not argue the trial court exceeded its jurisdiction by granting relief it had no power to grant, or by acting contrary to any statute in which the Legislature designated the exclusive method or procedure by which the trial court could act.
As indicated in our opinion in the prior appeal, husband represented to the trial court that he was in prison and did not have access to a telephone. The trial court permitted him to submit his evidence by declaration and documents, or to appear by telephone, if permitted by prison officials. --------
The judgment appealed from is presumed correct. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. . . . It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Ibid.) When an appellant fails to support his point with reasoned argument and citation to authority, we may disregard it. (Ibid.) We note that, " '[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.' " (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
Moreover, as noted by the trial court in its order on the motion to set aside the judgment, husband raised this issue in his prior appeal and we found no error. Husband has not demonstrated any jurisdictional error that renders the judgment void on its face.
D. Custody and visitation order
Husband also contends his motion to set aside the judgment was improperly denied because he was entitled to a hearing on the issues of child custody and visitation, but he was only permitted to appear at trial by written declaration. He has presented no reasoned argument, with citation to legal authorities, demonstrating that this portion of the judgment was void for lack of subject matter or personal jurisdiction, or was entered in excess of the trial court's jurisdiction. Additionally, this issue was also raised and resolved in the previous appeal. Husband has not established the judgment is void on its face.
DISPOSITION
The judgment is affirmed.