Filed 2/23/24 Marriage of Gutierrez CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of DOLORES B327354
and FRANCISCO GUTIERREZ.
(Los Angeles County
DOLORES GUTIERREZ, Super. Ct. No. BD659487)
Appellant,
v.
FRANCISCO GUTIERREZ
PALAFOX,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Armando Duron, Commissioner. Affirmed.
Patricia Rodriguez Law Group, Patricia Rodriguez and
Jazmyne Alverson for Appellant.
Francisco Gutierrez Palafox, in pro. per., for Respondent.
_______________________
MEMORANDUM OPINION1
Dolores Gutierrez claims that her now former husband
Francisco Gutierrez Palafox testified untruthfully about certain
financial matters at their dissolution trial, which resulted in her
not receiving additional spousal support and her portion of a
community trucking business called FGP.2 After judgment was
entered, Dolores filed a request for order (RFO) seeking to set
aside the judgment because of Francisco’s alleged extrinsic fraud
at trial. The court denied the RFO, and Dolores now appeals
from that denial. The limited record before us shows no error,
and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The appellate record in this matter consists only of the trial
court’s docket entries, the pleadings from Dolores’s RFO to set
aside the judgment, and the order denying that RFO.3 Neither
1 We resolve this case by memorandum opinion because it
is determined by controlling statutes which are not challenged for
unconstitutionality and does not present any substantial question
of interpretation or application. (Cal. Stds. Jud. Amin., § 8.1(1).)
2 As is common in family law matters, we refer to the
parties by their first names for ease of reference. No disrespect is
intended. The parties dispute the precise legal name of the
trucking business. They agree it begins with FGP, and we thus
use those initials to refer to it.
3 Francisco filed a request to augment the record to include
tax returns for FGP that he asserts corroborate his claims about
the business. We deny the request, as nothing suggests these
documents were presented to the trial court. (Cal. Rules of
Court, rule 8.155.) While Code of Civil Procedure section 909
authorizes us to make findings of fact on appeal, we exercise such
2
party designated reporter’s transcripts from any proceeding; we
thus have no transcript of the dissolution trial, the post-judgment
RFO hearing, or anything else. Nor does the record contain the
declarations of disclosure, which Dolores purports to cite.
We glean from this meager record the following. Dolores
filed for dissolution on May 19, 2017; the marriage had no minor
children. Trial was held on May 12, 2022 and June 2, 2022. At
trial, Dolores was represented; Francisco was not. The parties’
appellate briefing disputes what occurred at trial. As these
assertions are not supported by record citations or a reporter’s
transcript, we disregard them. At the trial’s conclusion, the court
took the matter under submission and issued a written ruling
with its findings on June 3, 2022.
The primary trial issue was characterization of the marital
residence. Dolores argued the home was her separate property
because Francisco purportedly gave it to her post-separation to
avoid being on the hook for delinquent mortgage debt he had
promised but failed to pay in lieu of support. The court found
Dolores’s testimony was not credible because, among other
reasons, the alleged mortgage debt did not exist at the time of the
claimed transmutation. Further, once the house was supposedly
deeded to Dolores, she filed an RFO for spousal support soon
thereafter even though she claimed the transfer of the home to
her was consideration for Francisco’s non-payment of support.
The court set aside the grant deed purporting to transfer the
home to Dolores and found the house was a community asset.
authority sparingly and only in exceptional circumstances. (Diaz
v. Professional Community Management, Inc. (2017) 16
Cal.App.5th 1190, 1213.) Neither party articulates that such
exceptional circumstances exist here, and we find none.
3
The court ordered the home sold with the net proceeds divided
equally between the parties.
Given the parties’ relative financial situations and the
applicable Family Code4 sections, the court awarded Dolores
$12,611 in need-based attorney fees under section 2030 to be paid
from Francisco’s portion of the home sale proceeds. Pursuant to
section 4320, the court ordered Francisco to pay Dolores $488 a
month in permanent spousal support. The court noted that
Dolores failed to provide recent paystubs as ordered before trial
verifying her claimed income. Francisco provided a completed
and current income and expense declaration including recent
paystubs, which showed his income had decreased after a
temporary spousal support award of $488 a month was made in
October 2018. However, in part because Francisco agreed to
continue paying $488 a month in support, the court found that
amount appropriate as the permanent spousal support award.
With regard to FGP, the court’s ruling states: “The parties
owned a community property [transportation] business known as
FGP . . . . At one time, the business operated three large trucks
with two employees driving two of the trucks, [Francisco] driving
the third. [Dolores] took care of the office. [Francisco] testified
that the business failed as a result of the COVI[D]-19 pandemic
and he now works as a mechanic. The trucks too were sold off.
The parties disputed by whom but neither provided this court
with more than va[g]ue allegations and unsubstantiated claims.
No claim of a breach of fiduciary duty with respect to this
4 All unspecified statutory references are to the Family
Code.
4
business was made during trial. Therefore, there are no assets of
FGP for this court to divide at this time.”
The docket shows judgment was entered on November 18,
2022. Before judgment was entered, on October 5, 2022, Dolores
filed an RFO to set aside the court’s decision after trial and/or the
judgment if it was entered before the RFO was heard. The RFO
claimed Dolores learned for the first time at trial that Francisco
was claiming FGP had shuttered and its assets no longer existed,
and thus she had “not [been] in a position to present any evidence
regarding the ongoing viability of the business.” Dolores asserted
her subsequent investigation showed Francisco’s trial testimony
about FGP and his current employment was false and attached
documents purporting to corroborate her claims. According to
Dolores, these documents showed FGP had not folded and sold its
assets. Instead, Francisco continued to own and operate the
business under a different name—Only One Trans, Inc. (Only
One)—which was the same company Francisco listed as his
employer on his most recent income and expense declaration, and
the company listed on the paystubs attached to that declaration.
Dolores requested the court set aside the court’s decisions
regarding spousal support and FGP pursuant to sections 2121
and 3691, or alternatively adjudicate FGP as an omitted asset
under section 1101. She also requested attorney’s fees under
section 271 and/or section 1101.
Franciso filed an opposition on November 9, 2022. It
included a sworn declaration from Francisco stating his
testimony at trial was truthful, that several of the trucks and
trailers at issue “were sold by [Dolores] herself, proceeds of which
[Dolores] kept to herself,” and explaining in his view how the
documents attached to Dolores’s RFO did not support her claims.
5
Francisco submitted evidence that FGP was no longer operating
under any name and was suspended by the Secretary of State
from doing business. He stated that he incorporated Only One
post-separation but that its ownership and operation was later
transferred, and that Only One currently employed him as a
mechanic. Francisco averred he truthfully reported his
employment and income at trial, and that he did not have any
self-employment income as Dolores claimed. Francisco further
noted that Dolores had substituted counsel following the trial,
and claimed her RFO was “an attempt for reconsideration of the
prior ruling” after trial. Francisco requested Dolores pay his fees
for opposing her RFO under sections 2030 and/or 271, because he
lacked the financial ability to pay such fees, and because
Dolores’s motion lacked merit and was an attempt to
unnecessarily prolong an already protracted dissolution.
Dolores filed a reply on November 16, 2022. Her reply
continued to deny that she had any involvement in selling FGP’s
assets, and otherwise disputed what Francisco had to say.
The trial court denied the RFO at a hearing on
November 23, 2022. As noted above, the record contains no
reporter’s transcript or minute order for this hearing. We thus
cannot determine whether any further evidence was adduced by
either party at the hearing beyond what was set forth in the RFO
pleadings.
The record does include a findings and order after hearing
filed on January 17, 2023, stating the court denied the various
requests raised by both parties; that order does not elaborate the
reasons for the denial.
6
DISCUSSION
A. Appellate Jurisdiction and Standard of Review
We have jurisdiction over Dolores’s appeal, as it is from an
order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) We
reject Francisco’s claim that the appeal is untimely. Dolores
appeals an order entered January 17, 2023, and timely filed her
notice of appeal on February 21, 2023. (Cal. Rules of Court, rule
8.104.)
Dolores asserts our review should be de novo, claiming her
arguments are based on a question of law. But she identifies no
pure question of law for us to review. Dolores instead argues that
her RFO’s factual showing required the court to find Francisco
committed extrinsic fraud and to set aside the judgment. In
reviewing the evidence supporting a motion to set aside a family
law judgment based on allegations of fraud, “we extend all
legitimate and reasonable inferences to uphold the judgment.
The disposition of such a motion rests largely in the discretion of
the trial court, and its decision will not be disturbed on appeal
unless there has been a clear abuse of discretion.” (In re
Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.) The same
standard applies to our review of a trial court’s decision
regarding an omitted asset claim under section 1101. (In re
Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.)
“We review factual findings of the family court for
substantial evidence, examining the evidence in the light most
favorable to the prevailing party. [Citation.] ‘ “ ‘In reviewing the
evidence on . . . appeal all conflicts must be resolved in favor of
the [prevailing party], and all legitimate and reasonable
inferences indulged in [order] to uphold the [finding] if possible.’ ”
[Citation.]’ [Citation.]” (In re Marriage of Rossi, supra, 90
7
Cal.App.4th at p. 40.) This presumption of correctness means an
appellant’s “ ‘[f]ailure to provide an adequate record on an issue
requires that the issue be resolved against [the appellant].’ ”
(Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
B. The Trial Court Did Not Abuse its Discretion in
Denying the Request to Set Aside the Judgment
Dolores alleges that Francisco testified untruthfully in his
declaration of disclosure and at trial, but we cannot fairly assess
these claims because the appellate record does not include the
declaration of disclosure or a transcript of Francisco’s trial
testimony.
What we do know is that, with regard to spousal support,
Dolores asserts the documents attached to her RFO show
Francisco had undisclosed self-employment income beyond the
wages he reported on the income and expense declaration used at
trial and thus a greater ability to pay more in support than he
claimed.5 Francisco’s declaration in opposition to the RFO
maintained that he truthfully reported his employment and
income at the trial, and he did not have any self-employment
income as Dolores claimed.
As for FGP, our understanding of what occurred at trial is
confined to the court’s findings stating that the parties disputed
which one of them sold the trucks FGP operated, and that both
5 Francisco’s appellate brief argues the documents attached
to Dolores’s RFO are inadmissible hearsay and otherwise
unreliable. Nothing in the record indicates these objections were
made before the trial court, and we therefore consider Francisco’s
evidentiary objections forfeited. (Guastello v. AIG Specialty Ins.
Co. (2021) 61 Cal.App.5th 97, 105.)
8
Dolores and Francisco provided only “va[g]ue allegations and
unsubstantiated claims” about the business. Dolores asserted the
documents attached to her RFO showed Francisco continued to
operate FGP under a different name. In response, Francisco
submitted evidence that FGP was no longer operating under any
name, was suspended by the Secretary of State from doing
business, and again claiming that before FGP went out of
business Dolores sold some of its trucks and trailers and kept the
proceeds for herself. He also denied current ownership or
management of Only One.
As the party moving to set aside the judgment, Dolores had
the burden of proof. (E.g., In re Marriage of Brewer & Federici
(2001) 93 Cal.App.4th 1334, 1345 [applying § 2121].) When “ ‘the
trier of fact has expressly or implicitly concluded that the party
with the burden of proof did not carry the burden and that party
appeals, it is misleading to characterize the failure-of-proof issue
as whether substantial evidence supports the judgment. . . . [¶]
Thus, where the issue on appeal turns on a failure of proof . . . ,
the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.” [Citation.]’ [Citation.]” (Dreyer’s Grand Ice Cream, Inc.
v. County of Kern (2013) 218 Cal.App.4th 828, 838.)
Dolores’s evidence attached to her RFO was not
uncontradicted and unimpeached, as Francisco submitted
evidence in opposition that both contradicted and impeached her
claims. Nor was Dolores’s RFO evidence so compelling as to
9
leave no room but to agree with her characterizations. The
limited record before us suggests potential concerns with the
credibility of both parties. In assessing the RFO, the trial court
found Francisco’s explanation the more credible one, as it denied
the request to set aside the judgment. Unlike us, the trial court
was privy to the parties’ trial testimony and to their demeanor
when testifying at trial and at the RFO hearing after being
sworn. Based on its knowledge of the parties’ testimony and
what occurred before the trial court, the court resolved the
conflicting evidence submitted in connection with the RFO
adverse to Dolores, and that is “not [an] issue[ ] we rework on
appeal. Appellate courts ‘do not reweigh evidence or reassess the
credibility of witnesses. [Citation.]’ [Citation.] Put another way,
‘[t]he Court of Appeal is not a second trier of fact . . . .’
[Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th
1509, 1531.)
We further observe that, even if we overlook Francisco’s
sworn denial to the contrary, the record does not inalterably
support Dolores’s claim of surprise regarding Francisco’s trial
testimony about FGP and her alleged inability to respond to it
during trial. Dolores asserts that Francisco committed extrinsic
fraud.6 “Extrinsic fraud occurs where a party is deprived of the
6 Dolores bases this extrinsic fraud claim on sections 2122
and 3691. Section 2122 permits setting aside a judgment
adjudicating support and property division on the ground of
“[a]ctual fraud where the defrauded party was kept in ignorance
or in some other manner was fraudulently prevented from fully
participating in the proceedings.” (§ 2122, subd. (a).) Section
3691 permits setting aside a support order on the ground of
actual fraud “[w]here the defrauded party was kept in ignorance
or in some other manner, other than through the party’s own lack
10
opportunity to present her claim or defense to the court, or in
some manner fraudulently prevented from fully participating in
the proceeding.” (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824,
832, citing In re Marriage of Varner (1997) 55 Cal.App.4th 128,
140.) “ ‘Fraud is intrinsic and not a valid ground for setting aside
a judgment when the party has been given notice of the action
and has had an opportunity to present [her] case and to protect
h[er]self from any mistake or fraud of [her] adversary, but has
unreasonably neglected to do so. [Citation.] Such a claim of
fraud goes to the merits of the prior proceeding which the moving
party should have guarded against at the time. Where the
defrauded party failed to take advantage of liberal discovery
policies to fully investigate his or her claim, any fraud is intrinsic
fraud. [Citation.]’ [Citation.]” (In re Marriage of Varner, supra,
at p. 140.)
The court’s trial findings do not indicate Dolores was
caught short by a new and unexpected claim from Francisco that
FGP’s assets were sold. Instead, the court’s findings appear to
indicate that both parties agreed at trial FGP’s assets were sold,
and the dispute was instead over who sold them and whether it
was Dolores or Francisco that ended up with the sale proceeds. It
was after trial and the unfavorable finding to her that Dolores
changed tack and claimed FGP’s assets were not sold but still
existed at Only One.
Dolores had adequate time before and during trial to gather
evidence regarding FGP. Trial occurred nearly five years after
Dolores petitioned for dissolution. The court found Dolores
of care or attention, was fraudulently prevented from fully
participating in the proceeding.” (§ 3691, subd. (a).)
11
worked at the business, so she knew FGP was a topic to be
addressed at trial when dividing community property and debt.
The trial itself occurred over two days spread nearly three weeks
apart. We cannot tell from the record what day Francisco’s
testimony about FGP occurred, but Dolores’s reply brief claims it
was on the first day of trial (May 12, 2022). If so, Dolores had
ample opportunity to investigate and prepare rebuttal evidence
before trial resumed on June 2, 2022.7 And if that was for some
reason not enough time, there is no indication in the appellate
record that Dolores (who was represented) requested a
continuance to marshal any necessary additional evidence
concerning FGP. In short, Dolores had an opportunity to fully
investigate her claims regarding FGP and provides no
satisfactory explanation for failing to present the evidence
attached to her RFO at trial.
While we agree with Dolores that Francisco owed fiduciary
duties of disclosure to her, the court found the evidence before it
did not show Francisco violated those duties or committed
extrinsic fraud. Our review of the record does not show that
determination was an abuse of discretion.
7 Dolores’s post-judgment RFO was based on publicly
available records pulled from government websites, and not on
anything unavailable to her at the time of trial.
12
DISPOSITION
The trial court’s order is affirmed. Francisco is awarded his
costs on appeal.
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
13