Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GD 038749 Mary Lou Katz, Commissioner.
Law Offices of Edelberg & Espina, Sherwin C. Edelberg and Claire N. Espina for Appellant.
Law Offices of Moses O. Onyejekwe and Moses O. Onyejekwe for Respondent.
MANELLA, J.
Appellant Okechi Enyinna-Nwachuku, formerly married to respondent Ishmael O. Nwachuku, appeals the trial court’s denial of her motion to set aside the stipulation that resolved the parties’ property division and the judgment that followed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Okechi and Ishmael had been married for nearly 39 years when Ishmael petitioned for dissolution in January 2006. The petition stated that the couple had been separated since January 1, 2002. The couple had three adult children. In August 2006, a judgment of dissolution was entered, reserving jurisdiction over all other issues.
As the parties share a surname, they will be referred to by their first names.
In July 2009, Okechi filed a request for trial setting, stating that the issues remaining were division of property, reimbursement for payment of community debts, and attorney fees and costs. In August 2009, Okechi filed a mandatory settlement conference brief, in which she requested spousal support and suggested that the couple’s two residential properties -- a home in Temple City in which Okechi was residing and a home in Nigeria in which Ishmael and his new wife were residing -- be sold and the proceeds divided evenly. Alternatively, Okechi expressed a willingness to take the Temple City home, which was encumbered with debt, and, in return, allow Ishmael to take the Nigerian home.
In September 2009, the parties signed and filed a “Stipulation to Further Judgment on Reserved Issues” (Stipulation). The Stipulation was prepared on a form with the blanks filled in by hand by Okechi’s counsel. It included the following terms and provisions: (1) the parties were to keep all personal property then in their possession, except personal effects such as birth certificates, social security cards and family photographs; (2) all community debts incurred as of the date of the separation were to be divided equally between the parties; (3) each party was to pay debts incurred in his or her own name on or after the date of the separation; and (4) each party was awarded one-half of the state teachers’ retirement system account held by Okechi. The Stipulation also dealt with the two items of residential property: (1) “The Temple City property shall be sold and the proceeds shall be divided equally between the parties. Both parties are to cooperate in the sale of [the] property”; (2) “The Nigerian property home which was built together by the parties located at Iferife Ntighauzo Village[, ] Obingwa LGAABIA State[, ] Nigeria, shall be given in full to the three children of [the parties], Hope, Uchechi, [and] Iyeoma Nwachuku. These three shall have full [and] complete right title and all interest in the Nigerian property of their parents.” Both Okechi and Ishmael signed the final page of the Stipulation under a paragraph which stated in capital letters: “I HAVE READ AND I AGREE TO EACH PAGE OF THIS DOCUMENT.” On the previous page of the Stipulation both parties signed a waiver of the disclosure required by Family Code section 2105 (final declaration of current income, expenses, assets and liabilities) contained in the body of the Stipulation.
The separation date was said to be January 1, 2004.
Approximately one month after the Stipulation was signed and filed, on October 27, 2009, Okechi substituted in new counsel. On November 10, she filed a motion to set aside the Stipulation. Okechi stated in her declaration in support of the motion that under Nigerian law, Ishmael could not be excluded from the family home and the home could not be transferred to the children. In addition, after Ishmael’s death, the property could be transferred only to the oldest male child (Hope). She indicated her prior attorney had said that Ishmael would pay rent to the children, which was “impractical and unenforceable” and, in any event, not set forth in the Stipulation. Okechi further stated: “At the time of the signing of the Stipulation[, ] I was not given the opportunity to read and understand the Stipulation and the implications of what I was agreeing to, ” that the Stipulation was not “clearly explained to me to enable me to make an informed decision on what I was stipulating to, ” that “I felt a tremendous pressure to sign the agreement contrary to what I really wanted to agree to, ” and that “I did not get a copy of the Stipulation until one or two weeks after [it] was signed.” Finally, she stated that the date of separation specified in the Stipulation was incorrect, and that the couple had separated on June 23, 2001, although she was willing to abide by the date stated in the petition -- January 1, 2002.
Also filed in support of the motion were declarations from two Nigerians, Alwell Nwankwoala, a scientist living in New York who had lived in Abia State, Nigeria for thirty years, and Onyenkwere O. Okwandu, a “traditional ruler and custodian of Ngwa Culture” living in Nigeria. Both stated that the first-born son is the automatic heir to the father’s property, that females could not inherit, and that children could not obtain their father’s property during his lifetime.
In her supporting memoranda, Okechi stated that the Stipulation should be set aside under Code of Civil Procedure section 473, subdivision (b), and Family Code section 2122, subdivision (e) on the ground of mistake. She contended: “It was a mistake by [me] to have agreed to... unenforceable terms.” Okechi argued, in the alternative, that the Stipulation should be set aside on the ground that Ishmael failed to describe the Nigerian property in his asset disclosure.
Ishmael opposed the motion. He argued that Okechi, as a fellow Nigerian, should be “presumed to know Nigerian customs and tradition by virtue of her na[t]ive heritage.” He further contended that Okechi’s declaration consisted of conclusory statements with no supporting facts, “[f]or example, [Okechi] contends that she entered into the [S]tipulation because she was pressured to agree[] to its terms, but does not give any facts explaining how she was pressured.” He explained that the parties agreed to award the Nigerian home to their children and to divide the equity in the Temple City home in order to avoid untangling other financial issues involving his use of separate property to pay community debts and use of community funds to benefit Okechi’s family. Ishmael objected to the Nwankwoala declaration on the ground that he was not knowledgeable about the customs and traditions of the village in which the Nigerian home was located and on the ground of hearsay.
Ishmael also filed a separate motion to enforce the Stipulation.
With respect to Okechi’s claim that only their eldest son could inherit the Nigerian home, Ishmael’s declaration stated: “Whether all our children get to inherit or not, the bottom line is at least one of our children is entitled to and is the rightful heir to the family residence in Nigeria.... [¶]... [M]y son... stands to inherit our family home in Nigeria by tradition and also by the agreement of [Okechi] and I.” He further stated that the Nigerian home had no economic value and could not be sold because “[i]n the village, land is owned communally descending from ancestors to [the] present day generation. There is no formal recordation of lands in the village and there are no sale[s] of residence[s] in the village.”
With her reply, Okechi submitted an appraisal, obtained by Ishmael, which valued the Nigerian home at approximately $350,000, and an earlier appraisal valuing it higher.
The trial court denied the motion. At the hearing, the court found it “utterly inexcusable” for Okechi to seek to have the Stipulation set aside on the ground that she signed it without reading it. The court found Okechi’s contention in this regard “not credible” and further found that even if it were, it would not be sufficient to set aside the Stipulation. The court further found the “fine points of Nigerian tribal law” not “particularly pertinent, ” and that the declarations from the Nigerian experts lacked “indicia of trustworthiness.” The court concluded that Okechi’s motion to set aside was the result of “seller’s remorse.” The order set forth the following findings in support of the court’s ruling: (1) Okechi was represented by counsel at the settlement conference; (2) Okechi and her counsel prepared the Stipulation; (3) the evidence submitted by Okechi in support of her motion was “not credible, ” in that “[Okechi’s] declaration[s] were unbelievable”; (4) “the declarations submitted by the third parties... constituted inadmissible hearsay evidence”; and (5) the evidence did not constitute “sufficient ground for the court to exercise its discretion to grant the motion to set aside.” On May 7, 2010, a judgment on reserved issues was issued, incorporating the Stipulation. Okechi appealed.
Because appellate counsel stated that the appeal was from a judgment pursuant to a stipulation, this court issued an order to show cause why the appeal should not be dismissed. Okechi responded that the appeal challenged the denial of her Code of Civil Procedure section 473 motion. Ishmael subsequently moved to dismiss the appeal on the ground that the parties had waived appeal in the Stipulation. By order dated July 14, 2010, we ruled that the appeal was proper “insofar as it may challenge the trial court’s denial of [Okechi’s] motion under Code of Civil Procedure section 473, subdivision (b), to set aside the [Stipulation], ” and that the appeal was limited to challenging the judgment “on the ground that the trial court erred in denying [Okechi’s] motion under Code of Civil Procedure section 473, subdivision (b), to set aside the [Stipulation].”
DISCUSSION
A. Mistake or Duress
Code of Civil Procedure section 473, subdivision (b) provides that a court may, “upon any terms as may be just, relieve a party... from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Family Law section 2122, subdivision (e) provides: “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:... (e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.” As explained in In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32, section 473 of the Code of Civil Procedure and section 2122 of the Family Code “now coexist, operating as alternative bases for relief, depending on when the application is filed. Within the six-month time limit under section 473, a litigant may seek relief from a family law judgment under either the statute’s mandatory provisions (where the litigant’s attorney is willing to swear to his own fault) or its discretionary provisions (where the court ‘may’ relieve a party of the consequences of his or her own mistake, inadvertence, surprise, or excusable neglect). Alternatively, the litigant may seek relief under any of the specific grounds specified in Family Code section 2122. However, after the six months pass, the litigant is limited to just the grounds specified in section 2122.” (Fn. omitted.)
Before granting relief for mistake, inadvertence, surprise or excusable neglect in a dissolution proceeding, the court must 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.” (Fam. Code, § 2121.) The fact that a judgment or stipulation may have been inequitable when made cannot by itself serve as a basis for setting it aside. (Fam. Code, § 2123; In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684.) Motions for relief under Code of Civil Procedure section 473 and Family Law section 2122 are addressed to the discretion of the trial court; we will not reverse absent a clear showing of abuse. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266; In re Marriage of Rosevear, supra, at p. 682.)
Okechi contends that the Stipulation should be set aside due to mistake, but has been inconsistent about the nature of the mistake, and has never presented evidence of a mistake that could justify setting aside the Stipulation. In her declaration, she stated that at the settlement conference she felt “tremendous pressure” to sign an agreement which was “contrary to what [she] really wanted to agree to, ” thus indicating she was aware of its provisions. Elsewhere in the declaration she claimed to have been given no opportunity to read or understand the Stipulation before signing it. Specifically with respect to the provision addressing the Nigerian home, she stated that her attorney informed her that Ishmael would pay rent to the children in order to stay in the home, thus evidencing her awareness of the provision giving the home to the couple’s children; later, she claimed she never intended to give up her interest in the Nigerian home and was given “no reason or explanation” why she did not get half its value.
In the proceedings below, Okechi’s primary contention was that the agreement to give the Nigerian home to the couple’s children could not be enforced under Nigerian law and that “[i]t was a mistake by [her] to have agreed to unenforceable terms.” There is a distinction between a “mistake” within the meaning of Code of Civil Procedure section 473 or Family Code section 2122 and an error in judgment -- relief is available for the former but not the latter. Burnete v. La Casa Dana Apartments, supra, 148 Cal.App.4th 1262 illustrates the point. There, the moving party contended he made a “mistake” because he decided to represent himself and performed poorly as an attorney. As the court explained, this was not a mistake of fact or law under section 473, “but... a mistake in judgment when he chose to act as his own attorney” and “no case... support[s] the argument that he should be relieved of the consequences of a decision of that nature.” (148 Cal.App.4th at p. 1267; see also Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656 [“‘A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. [Citation.]... A judgment will not ordinarily be vacated at the demand of a defendant who was either grossly negligent or changed his mind after the judgment.’”].)
Okechi did not assert that she was unaware of Nigerian law and customs when she agreed to the property division set forth in the Stipulation. Her mistake was one of judgment in agreeing to a division of property which she now regrets, not of facts or law, and neither Code of Civil Procedure section 473 nor Family Code section 2122 can relieve her of the consequences of her decision. Moreover, as the trial court noted, the declarations on which she relied to establish Nigerian law were deficient. The declarants stated they were familiar with Nigerian customs and traditions, but neither was a lawyer or a legal expert. They could not state as a matter of personal knowledge that a Nigerian court would not enforce the property transfer provision of the Stipulation. (Cf. Estate of Arbulich (1953) 41 Cal.2d 86, 89-90 [question of how foreign country has construed and applied its treaties and statutes is question of fact and trial court’s findings will not be disturbed on appeal if supported by evidence]; Ehret v. Ichioka (1967) 247 Cal.App.2d 637, 644 [existence of alleged foreign law should be determined by trial court after necessary investigation; appellate court can take judicial notice only if adequate data provided].)
On appeal, Okechi focuses primarily on her alleged failure to read and understand the Stipulation before signing it, contending she lacked the “opportunity” to read it at the time and did not receive a copy for two weeks. Ordinarily, a party cannot avoid an agreement on the ground that he or she failed to read it before signing it. (Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701; Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049.) An exception exists where the party is affirmatively encouraged by a fiduciary not to read an agreement or is actively misinformed about the nature of the document he or she is signing. (Metters v. Ralphs Grocery Co., at p. 702; Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc., at pp. 1049-1050; see, e.g., In re Marriage of Grissom (1994) 30 Cal.App.4th 40, 47 [“Where a confidential relation exists between the parties and one of the parties signs an instrument without reading it in reliance on false representations as to its contents by the other party, the instrument may be avoided”].) Okechi did not establish that either Ishmael or her attorney misrepresented the contents of the Stipulation or the nature of the agreement or actively encouraged her to sign it without reading it. Her simple failure to read the document before signing it is not grounds for granting relief. Moreover, as the trial court found, Okechi’s statements in this regard were not credible. Okechi filed a mandatory settlement conference brief in which she stated that the primary remaining issue concerned how to divide the parties’ residential properties. The Stipulation itself was brief. The parties’ agreements with respect to division of property and debt were handwritten on the Stipulation form by Okechi’s own attorney. The important provisions were contained in half a dozen sentences. Their meaning was clear. Okechi signed the Stipulation twice -- once immediately below a statement confirming that she had read the document. The trial court was fully justified in declining to credit Okechi’s claim that she signed the Stipulation without reading and understanding the few sentences that dealt with division of the two homes.
In her brief, Okechi also blames attorney misconduct for her execution of the Stipulation. She states that the Stipulation “was represented to her incorrectly by her prior attorney”; that she was “coerced” to sign the Stipulation and “placed under duress” by her prior attorney; and that the provisions in the Stipulation were “contrary to her prior specific instruction to her attorney.” Because Okechi did not raise this argument in her memorandum to the trial court, we need not consider it. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 110-111 [party not permitted to change basis of motion to set aside on appeal].) Moreover, it is unsupported by any evidence. In her declaration she said nothing about being coerced by her attorney or being under duress. Rather, she said she “felt a tremendous pressure” to sign the Stipulation, but did not specify the nature or source of such pressure. Elsewhere she stated that her attorney had represented that Ishmael would pay rent to the children in order to remain in the home, but further asserted that any provision to that effect would have been unenforceable. (See Fam. Code, § 2121 [judgment or order should not be set aside if moving party would not “materially benefit from the granting of the relief”].) In sum, Okechi failed to establish entitlement to relief based on mistake or duress.
B. Remaining Contentions
Okechi repeatedly suggests in her brief that the court erred by failing to make “inquiry of Okechi at the time of the filing of the Stipulation for Judgment on Reserved Issues as to whether or not the Stipulation and all its waivers were voluntary, knowing and intelligent.” Okechi has cited no authority -- and we are aware of none -- requiring a court to make such an inquiry. Okechi also suggests that the court erred by failing to hold an evidentiary hearing on her motion for relief. The burden is on the moving party to establish grounds for relief from a judgment or order; the court is not required to conduct an evidentiary hearing to develop the facts. (See In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88-91.)
Okechi further contends that the trial court’s denial of her motion was an unwarranted “sanction.” The record is clear that the motion was denied because Okechi’s moving papers failed to justify the relief requested, not as a sanction. Okechi’s contention that denial of the motion deprived her of due process is equally meritless. Due process does not require that parties be afforded relief from errors in judgment made during the course of litigation and settlement. Finally, Okechi’s brief contains a heading stating that “Failure to Disclose the Existence and Value of the Community Assets Constitutes a Basis for Setting Aside the Judgment on the Ground of Mistake under Family Code Section 2122.” However, Okechi’s brief contains no argument related to this provision, and the contention is thus deemed waived. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”].) Moreover, as noted above, Okechi signed an express waiver of disclosure, and the validity of the Stipulation itself is not before us. (See fn. 6, ante.) Finally, the evidence is clear that Okechi was aware of the existence of the Nigerian home; at the time of the settlement she had in her possession two appraisals concerning its value. In short, her contentions provide no basis for disturbing the trial court’s denial of her motion to set aside the Stipulation.
Family Code section 2100, subdivision (c) requires “a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest” at the early stages of a proceeding for dissolution.
DISPOSITION
The judgment is affirmed. The respondent is awarded his costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.