Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SFL 957331
Jenkins, J.
This is an appeal from the trial court’s order to deny appellant Paul J. Southwick’s application to set aside the custody, visitation and child support portions of a judgment filed on August, 31, 1992, in a marriage dissolution matter. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Marriage and Separation.
Paul J. Southwick and Marguerite A. Crownover married in 1984. They had three children during the course of the marriage, who were born in 1984, 1986, and 1988.
In 1989, Southwick filed a petition for dissolution of the marriage, and the couple formally separated later that year.
On March 13, 1990, Crownover brought the two oldest children to the Santa Maria Police Department (SMPD) to interview with Police Officer J.M. Alm and a representative from Santa Barbara Child Protective Services (CPS) regarding an alleged incident of inappropriate touching by Southwick. The interview was documented in a police report, which identified Crownover as the reporting party. According to the report, on March 8, 1990, Kathleen Baggarley, a family counselor, contacted CPS to report that the oldest daughter had recounted to her that an incident of inappropriate touching had occurred involving this daughter, her younger brother, and Southwick.
Following the interview, the SMPD declined to arrest Southwick, and the CPS declined to exercise its power to terminate Southwick’s scheduled visitation with his children. According to the report, the SMPD concluded “it is hard at this point to know exactly what happened,” and that “the behavior could have been, from [the children’s] description, a wide range of things.”
On March 15, 1990, a police officer met with Southwick and his attorney to review the contents of the police report and to obtain a statement. Southwick advised the officer that Crownover was accusing him of molestation as a “trick... to further her cause in the custody dispute.”
On March 19, 1990, the trial court conducted a hearing to set temporary custody and support payment schedules, at which both parties appeared with counsel. During the hearing, the trial court warned Crownover’s counsel that misstatements about the alleged molestation could result in visitation restrictions against her. The court noted that the alleged touching incident “was investigated [by] the police department [who] didn’t think anything of it, nor did Protective Services or anybody in the District Attorney’s Office.”
That same day, the trial court entered a temporary order, granting physical custody of the children to Crownover, giving Southwick weekend visitation twice monthly, and ordering him to make monthly support payments of $859 to Crownover.
The dissolution trial took place in 1992. During the trial, Southwick’s attorney questioned Crownover about the alleged touching incident. Crownover responded that she did not file the police report; rather, the police asked her to come down to the station after CPS notified the SMPD. Southwick’s attorney also questioned the two oldest children’s psychologist about the alleged incident, referring to a report where the psychologist suggested that Crownover’s focus on the alleged incident during the custody and visitation proceedings might have been “vindictive.”
On July 31, 1992, the trial court issued an order finding that Southwick’s counsel abandoned him, and granting his request to substitute in propria persona.
The trial court entered a final judgment on August 31, 1992 (the 1992 judgment). Pursuant to the 1992 judgment, the trial court granted joint legal custody to the parties, granted permanent physical custody to Crownover, and granted visitation to Southwick for six weekends, some holidays, and part of each summer. The trial court also ordered Southwick to make monthly child support payments of $670, and found him in arrears of $16,008 at the time of judgment.
In June of 2006, after the youngest child turned 18, Southwick stopped making child support payments. At that time, Southwick had a total unpaid child support balance of $79,731.17.
On October 16, 2007, the court amended the dissolution judgment, ordering Southwick to pay the arrearage in monthly payments of $200.
II. Southwick’s 2008 Application to Set Aside Portions of the 1992 Judgment.
On January 22, 2008, pursuant to Family Code section 3691, Southwick filed a request for rehearing and an application to set aside portions of the 1992 judgment, as modified in 2007, on the ground that the judgment was tainted by Crownover’s fraudulent and perjurious statements (the application). According to the application, Crownover had “crafted a complex scheme” of false police allegations related to the alleged molestation that defrauded the trial court and affected the 1992 judgment. The application further stated that Crownover perjured herself during the dissolution trial when testifying that she did not report the alleged incident to the police. Southwick claimed he first “discovered” the fraud in late 2007 while “researching case documents essentially forgotten” in connection with a court hearing regarding the suspension of his contractor’s license for failure to make his support payments.
Unless otherwise stated, all statutory citations herein are to the Family Code.
On March 21, 2008, the Sonoma County Department of Child Support Services (the Department), which had intervened in the underlying matter in 2003, responded to Southwick’s application. Among other things, the Department attached a financial audit form indicating that, as of March 17, 2008, Southwick had an unpaid child support balance of $78,531.17. On the same day, Crownover also responded, denying all allegations of perjury and fraud.
The trial court held a hearing on the application on April 30, 2008. Following standard procedures for family law matters involving the local child support agency, a court commissioner, acting as temporary judge, presided over the hearing. After noting that she had read the entire six-volume file from the 1992 proceedings, the commissioner declined to set aside the 1992 judgment. In addition, the commissioner instructed Southwick to fill out financial forms so the court could later determine a monthly payment plan for the arrears. This timely appeal followed.
DISCUSSION
Southwick, proceeding in propria persona, sets forth four grounds for reversing the trial court’s denial of his application to set aside the 1992 judgment. First, Southwick claims the trial court erred in finding that his application was time-barred without considering the actual evidence underlying his fraud and perjury claims. Second, Southwick challenges the trial court’s decision on due process grounds, arguing the court failed to conduct a full hearing on his application. Third, Southwick claims the trial court erred by failing to notify him of his right to object to a court commissioner deciding the matter rather than a judge. Finally, he claims the trial court erred by failing to rule on Crownover’s request to appear by telephone for the hearing on his application. We address each argument in turn.
When reviewing the trial court’s denial of the application to set aside the 1992 judgment, we apply the abuse of discretion standard. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138; see Dean v. Dean (1963) 59 Cal.2d 655, 657.) We will reverse the trial court’s decision only if the court “exceeded the bounds of reason” or committed “prejudicial error.” (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 229-30.) In applying this standard of review, we resolve evidentiary conflicts in support of the trial court, and defer to the trial court’s inferences so long as they are reasonable. (Warshaw v. Ginsberg (1966) 245 Cal.App.2d 513, 516.) Further, the appellant has the burden to prove the trial court’s abuse of discretion. (In re Marriage of Rothrock, supra, 159 Cal.App.4th at 230.)
I. The Trial Court Did Not Abuse Its Discretion in Declining to Set Aside the 1992 Judgment on Statute of Limitations Grounds.
The trial court denied Southwick’s application after concluding it was “18 years past the time frame” for objecting to the 1992 judgment. The trial court’s one-line order thereafter stated that Southwick had “no standing or legal basis to set aside any orders at this time.”
Southwick challenges the trial court’s decision, claiming his application is not barred by the generally-applicable statute of limitations because he did not discover the evidentiary facts underlying Crownover’s alleged fraud and perjury until late 2007 or 2008. Further, Southwick claims that, but for Crownover’s fraudulent and perjurious statements regarding the alleged molestation of his daughter, the trial court in 1992 likely would have awarded him physical custody of the children and ordered Crownover to pay child support.
Southwick claims in his application that he discovered the fraud and perjury on September 21, 2007, but asserts in his opening brief that he discovered it on April 29, 2008, the night before the hearing on his application.
In particular, Southwick claims Crownover committed perjury during her testimony in the 1992 proceedings by claiming that Baggerley and CPS filed the police report regarding the alleged molestation rather than herself.
Generally, a party has six months from the entry of a final order or judgment to seek relief from the court on fraud or perjury grounds. (Code Civ. Proc., § 473.) After six months, such applications are time-barred. (Ibid.) However, applications for relief from child support orders or judgments receive more lenient treatment. In such cases, courts have limited discretion to set aside an order or judgment based on fraud, perjury, or lack of reasonable notice after the six-month statutory period has passed. (§§ 3690-3692.) Relevant here, a parent subject to a tainted child support order or judgment has six months from the time he or she discovers or reasonably should have discovered the fraud or perjury to ask the court to set aside the order. (§ 3691.)
Section 3690, subdivision (a) provides that “[t]he court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof, 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 article. Section 3691, subdivision (a) in turn, provides: “Actual fraud. Where the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud.”
Here, we conclude that Southwick did not bring the application within six months after he should have discovered the evidence underlying his fraud and perjury claims. The police report Southwick and his counsel reviewed on March 15, 1990 listed Crownover as the reporting party, yet when Southwick’s counsel questioned Crownover about the report during the 1992 dissolution proceeding, she stated that she did not report the incident to the police. It is this statement that Southwick now claims was false when made. Further, the decision by both the police and CPS in 1990 to not pursue charges against Southwick after conducting interviews suggests that they might not have believed her statements regarding the incident. Thus, by the completion of the 1992 proceeding, Southwick should have been on notice that Crownover may have made misstatements regarding the alleged sexual assault incident. Although Southwick claims that he began to discover the evidence underlying the fraud and perjury claims in 2007 or 2008, the evidence supports the trial court’s conclusion that the claim is time-barred because he should have discovered the evidence more than a decade earlier.
In fact, Southwick acknowledges in his reply brief that he “began to discover” such evidence in 2007 “by researching case documents essentially forgotten.” This acknowledgement supports just what the trial court found – that Southwick should have discovered the alleged fraud and perjury from information available at the time of the 1992 proceedings. Given these facts, we conclude the trial court properly found that Southwick’s claims are time-barred. (See Rubenstein v. Rubenstein (2000)81 Cal.App.4th 1131, 1136; Gibson v. Rath (1936) 13 Cal.App.2d 40, 42 [holding that the statute of limitations starts to run immediately where the complaining party witnessed the allegedly fraudulent statements in court].)
In arguing that his application should not be time barred, appellant relies on Rubenstein, supra, 81 Cal.App.4th 1131. We find this case distinguishable. In Rubenstein, the wife had claimed during marital dissolution proceedings that her husband was hiding assets, but presented no evidence to substantiate her claim until 18 months after the parties had entered into a stipulated judgment, at which time she applied to set aside the judgment based on fraud. (Id. at pp. 1137-1138.) On appeal, the court held that the wife’s application was not time-barred because she was unable to discover facts to substantiate her fraud claim until certain court documents became available to the public, after which she filed her application within the limitations period. (Id. at p. 1149.) In so holding, the court clarified that the statute of limitations begins to run when a party discovers or should have discovered “the facts constituting the fraud or perjury,” not when a party suspects or should have suspected that fraud or perjury occurred. (Id. at p. 1136.)
In Rubenstein, supra, 81 Cal.App.4th 1131, the wife filed an application to set aside the judgment entered in a marriage dissolution matter pursuant to sections 2121 and 2122, which are analogous to sections 3690 and 3691, the statutes relied upon in this case. Specifically, section 2121, similar to section 3690, provides that “the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof... 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.” Section 2122, similar to section 3691, provides in turn: “Actual Fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.” (§ 2122, subd. (a).)
Here, unlike in Rubenstein, “the facts constituting the fraud or perjury” were available to Southwick many years before he filed his application to set aside the 1992 judgment in 2008. (See Rubenstein, supra, 81 Cal.App.4th at p. 1136.) Southwick did not need to wait for various court documents to become public to discover the fraud. The SMPD made the report containing the allegedly fraudulent and perjurious statements available to Southwick and his counsel in March of 1990. Southwick’s attorney thereafter questioned Crownover about her alleged fraudulent statements during the 1992 dissolution hearing, before the 1992 judgment that Southwick seeks to set aside was entered.
Despite these circumstances, Southwick nowhere explains how or why he was unable to discover evidence of Crownover’s alleged fraud and perjury until late 2007 or 2008. To borrow a phrase from the In re Marriage of Tavares court, Southwick’s claim of fraud, made at least 16 years after he should have discovered the evidence, comes “far too late.” (SeeIn re Marriage of Tavares (2007) 151 Cal.App.4th 620, 627.) Because Southwick filed the application to set aside the 1992 judgment long after the limitations period set forth in section 3691 had expired, the trial court did not abuse its discretion by denying it.
II. The Trial Court Conducted a Fair Hearing.
In reaching this conclusion, we acknowledge Southwick’s claim that the trial court violated his due process rights by denying him a fair hearing. However, because we conclude the trial court conducted a sufficient review of the evidence to support its determination that Southwick had no legal basis to set aside the judgment, we believe this claim is likewise without merit.
All litigants have the “right to be heard in a meaningful manner and to an adjudication following consideration of all relevant, proffered, competent evidence” by the court. (Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1329.)
Here, before ruling on Southwick’s application, the trial court noted it had read “all six volumes” of the case file from the 1992 dissolution proceedings. The trial court then notified Southwick that it would not “spend a lot of time” discussing his application because there was no legal basis for setting aside the 1992 judgment. Specifically, the trial court stated: “I’m not dealing with anything that has to do with your divorce. You are 18 years past the time frame for most of this. There is no basis. I’m not going to spend a lot of time listening because I read what you were recommended by counsel when all the custody stuff was going on. [¶] Eighteen years later you have no standing....”
While it is not entirely clear what evidence the trial court was relying on in making its decision because the six volumes from the 1992 proceedings were not made part of the record on appeal, we nonetheless have no doubt that appellant received a fair hearing. In addition to those six volumes, both parties submitted several declarations in connection with Southwick’s application that we presume the trial court considered. (Evid. Code, §664; see also People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 706-707.) While the trial court did not permit Southwick to argue the merits of his fraud and perjury claims at the hearing, that fact alone does not prove that the trial court abused its discretion by ignoring relevant evidence, especially where the court reviewed six volumes of the case file from the 1992 proceedings and presumably reviewed the declarations filed by the parties in these proceedings before reaching its decision. (See Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 481 [the trial court has discretion to exclude oral testimony and require submission upon declarations when deciding motions filed in post judgment proceedings in marriage dissolution matters].)
Moreover, even if we could somehow find fault in the trial court’s failure to allow oral argument at the hearing, we would nonetheless conclude there was no miscarriage of justice requiring reversal. (See In re Marriage of Jones (1998) 60 Cal.App.4th 685, 694; Cal. Const. art. VI, § 13 [a judgment may be set aside for procedural error only if the error resulted in a miscarriage of justice].) The trial court concluded that Southwick’s application was time barred because he should have discovered the alleged fraud and perjury from documents available at the time of the 1992 proceedings. That is the same conclusion we reach on appeal, after a full review of the appellate record, as well as consideration of Southwick’s oral argument.
Southwick contends that a December 10, 1990 transcript “that surfaced on the eve of” the application hearing “conclusively proves that [Crownover] committed felony perjury under oath in the making of a false police complaint, a false district attorney’s complaint, and false child protective services complaints.” However, the transcript does not appear in the record on appeal. Southwick attempted to augment the record to include the transcript, but this court denied his request twice, on February 6, 2009 and March 6, 2009, because there was no indication the trial court considered it, and because he did not provide a complete and certified version of the transcript until after the Department had filed its responding brief. Southwick has not challenged this ruling on appeal. Accordingly, we decline to revisit the issue.
III. The Court Commissioner’s Purported Noncompliance with Section 4251’s Notice Requirements Provides No Basis For Reversal.
Southwick also challenges the trial court’s denial of his application on the ground that he did not receive proper notice that a court commissioner acting as a temporary judge, rather than a permanent judge, would preside over the April 30, 2008, hearing. While it is beyond dispute that Southwick received written notice that a commissioner would preside over the hearing when he submitted his application, he claims the commissioner subsequently erred by failing to orally notify him at the hearing of his right to object to her presence.
For all actions to modify or set aside a support order that involve a child support agency, a commissioner acts as a temporary judge, and his or her orders are reviewable by a permanent judge only if a party objects. (§4251, subds. (a), (b).) Accordingly, all judicial forms related to the action must notify each party of its right to object to a commissioner presiding over the hearing as a temporary judge. (§4251, subd. (b).) In addition, before the hearing, the commissioner is required to notify all parties of their right to object to him or her acting as a temporary judge at the hearing, and their right to request after the hearing that a superior court judge review any of the commissioner’s orders. (Ibid.) In order to have those orders reviewed by a judge, however, the party must object both before and after the commissioner rules in the matter. (§4251, subds. (b), (c); County of Orange v. Smith (2002) 96 Cal.App.4th 955, 961.)
As both parties agree, this is a family law action to modify or set aside portions of a judgment that involves a child support agency – to wit, the Sonoma County Department of Child Support Services, a respondent, which intervened in this action in 2003. Accordingly, the notice requirements of section 4251 apply. (§4251, subds. (a), (b).)
Further, consistent with subdivision (b) of section 4251, Southwick undisputedly received written notice of his right to object to the commissioner acting as a temporary judge at the hearing. Specifically, the judicial form that Southwick used to submit his application clearly stated: “NOTICE FOR CASES INVOLVING A LOCAL CHILD SUPPORT AGENCY. This case may be referred to a court commissioner for hearing. By law, court commissioners do not have the authority to issue final orders and judgments in contested cases unless they are acting as temporary judges. The court commissioner in your case will act as a temporary judge unless, before the hearing, you or any other party objects to the commissioner acting as a temporary judge.” And although this written notice specifically warned Southwick that the court commissioner would have the power to issue orders as a temporary judge unless he raised an objection “before the hearing,” Southwick failed to do so.
Southwick suggests his failure to object despite having received written notice should be excused because he was not represented by counsel at the hearing. However, as a pro per litigant, Southwick is entitled to no special treatment in this regard. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [“[e]xcept when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forego attorney representation”].)
However, apart from this written notice requirement, section 4251, subdivision (b), also requires that the parties receive oral notice at the time of the hearing of their right to object to a court commissioner acting as a temporary judge in the matter. (§ 4251, subd. (b).) Southwick claims the commissioner failed to provide this oral notice. In doing so, Southwick points to the absence of any such notice by the commissioner in the reporter’s transcript from the hearing.
We conclude that Southwick’s argument in this regard must fail. “[I]t is the appellant’s burden to demonstrate the existence of reversible error. [Citation.]” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) Where, as here, the trial court’s purported error is “of a purely statutory dimension,” we will reverse the judgment “only if we conclude ‘... it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citations.]” (In re Marriage of Jones, supra, 60 Cal.App.4th at p. 694.) Southwick, however, has not met this burden as he has failed to provide any evidence that, absent the purported lack of notice regarding his right to object to the court commissioner acting as temporary judge, it is reasonably probable he would have obtained a more favorable result. (Ibid.; see also Cal. Const. art. VI, § 13.)
For these reasons, we decline to reverse the trial court’s denial of Southwick’s application to set aside the 1992 judgment based on the commissioner’s purported noncompliance with section 4251.
IV. The Trial Court Properly Granted Crownover’s Request to Appear by Telephone at The Hearing.
Many of the principles set forth above in Section III also dispose of Southwick’s final claim that the trial court erred by failing to serve him with a copy of its order granting Crownover’s motion to appear telephonically for the hearing on his application, which motion he opposed.
At the hearing, when Crownover appeared via telephone, Southwick objected to the court commissioner that he had not received notice that Crownover’s request to appear telephonically had been granted or that his opposition to her request had been denied. The commissioner responded that Southwick had in fact been served with a copy of the order granting her request. However, no such order appears in the record. Given the lack of any affirmative evidence in the record contradicting the commissioner’s statement, we presume it was correct and that the commissioner, acting as temporary judge, properly discharged her official duties. (Evid. Code §664; People v. Allegheny Casualty Co., supra, 41 Cal.4th at pp. 706-07. See also In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498 [appellant has the duty to provide the court with an adequate record on appeal].)
Moreover, even if the commissioner failed to discharge such duties, Southwick has made no showing of any resulting harm. As such, Southwick has failed again to set forth any grounds for reversing the trial court’s order. (In re Marriage of Jones, supra, 60 Cal.App.4th at p. 694; Cal. Const. art. VI, § 13.)
DISPOSITION
The trial court’s order to deny Southwick’s application to set aside portions of the 1992 judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.
Given the similar statutory subject matter and language, we believe the opinion in Rubenstein is relevant to our inquiry notwithstanding the court’s application of section 2122 rather than section 3691. (See Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 557 [“[W]hen legislation has been judicially construed and a subsequent statute on the same or analogous subject is framed in the identical language, it will ordinarily be presumed that the Legislature intended that the language as used in the later enactment would be given a like interpretation”].)
In any event, we, like the trial court, question whether Crownover’s alleged fraudulent and perjurious statements affected the 1992 judgment. As respondents point out, had the trial court in 1992 believed Crownover’s allegations that Southwick molested his daughter, we doubt it would have granted him joint legal custody with generous, unsupervised visitation rights.