Hollingsworth v. Hollingsworth

STEPHEN CHARLES HOLLINGSWORTH, Plaintiff and Appellant, v. MARIA DEL MAR HOLLINGSWORTH, Defendant and Respondent.

B257681

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

January 28, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. GD043710)

APPEAL from a judgment of the Superior Court of Los Angeles County. Dianna Gould-Saltman, Judge. Reversed in part and remanded.

Michael R. Carver, for Plaintiff and Appellant.

Tobie B. Waxman and Andrea Caster, for Defendant and Respondent.

* * * * * * In this divorce action, appellant Stephen C. Hollingsworth (husband) petitioned for marital dissolution against his wife, respondent Maria Del Mar Hollingsworth (wife). Despite a court order and multiple requests to do so, husband never served his wife with a preliminary declaration disclosing his assets and liabilities. The trial court consequently struck husband's petition, elected to treat wife's response as the operative pleading, and declared husband in default. Nearly two years later, the court entered a default judgment awarding wife certain assets, legal and physical custody of their son, and denying husband all visitation rights. The court later denied husband's motion to vacate the default and default judgment. We conclude that the court did not abuse its discretion in striking husband's petition and correctly entered a default as to child custody and visitation. We further conclude that the court may have erred in entering a default as to the disposition of property because wife's petition never detailed the property at issue and it is unclear if her preliminary declaration did so, and erred in entering a default judgment as to the disposition of property as well as child custody and visitation because wife presented no evidence on these issues at the default "prove up" hearing. We accordingly reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

I. Initial Pleadings

Husband and wife married in 1995, and had a son in 2004.

On January 6, 2009, husband filed a petition for dissolution of their marriage. On the form petition, husband checked the box requesting that the trial court "confirm[] as [his] separate property" the "assets and debts listed in a Property Declaration" form, but never attached the form.

On February 11, 2009, wife filed a response that also requested dissolution. On the form response, wife checked the box requesting that the court "confirm[] as [her] separate property" the "assets and debts listed," but she listed no assets or debts; instead, she typed: "Discovery is ongoing and [wife] will amend upon completion." Wife also checked the box indicating that she was "list[ing]" "all" "community and quasi-community property assets and debts," but again listed no specific assets or debts;instead, she typed: "Discovery is ongoing and the extent of community property and debts is unknown but [wife] will amend upon completion." Wife also checked the boxes requesting "legal" and "physical" custody of her son, but checked no boxes regarding visitation. Wife never amended her pleading.

II. Orders Regarding Preliminary Declarations and Entry of Default

On June 30, 2011, the trial court held a trial setting conference and hearing on whether to relieve husband's counsel as counsel of record. At that hearing, the court observed that neither husband nor wife had served one another with preliminary declarations disclosing their assets and liabilities, as required by Family Code sections 2103, 2104, and 2105.¹ At the hearing and in a subsequently entered order, the court ordered both husband and wife to exchange their preliminary declarations of disclosure within 30 days and warned that, if either party disobeyed, "then [it] will consider striking either [husband's] petition or [wife's] response, and the court may proceed by way of a default."² Husband's counsel still represented husband at the time of the hearing and order.

Wife served her preliminary declaration on husband on August 3, 2011. She never filed the declaration with the trial court because section 2103 only requires that a spouse file "proof of service" of the declaration. On November 10, 2011, wife served husband with a notice formally requesting his preliminary declaration. Husband did not respond. On March 19, 2012, wife filed a motion, which she served on husband, asking the court (1) to waive, pursuant to section 2107, subdivisions (b)(3) and (d), the requirement that husband file his declaration and thereby to lift the statutory bar precluding entry of judgment until both spouses served their declarations and (2) to award "any additional or alternative relief as the Court deems appropriate." In a declaration in support of themotion, wife requested "any additional relief that the Court deems appropriate, including striking [husband's] Petition, deeming [wife's] Response as the Petition, and taking [husband's] default."

On April 24, 2012, the trial court heard wife's motion. The court granted the motion to waive receipt of husband's preliminary declaration, struck husband's petition, deemed wife's February 2009 response as the operative petition for marital dissolution, and entered an order of default against husband for failing to serve his preliminary declaration. Husband was served with the court's order.

III. Entry of Default Judgment

On January 16, 2014, wife filed an income and expense declaration. In it, she claimed no assets other than $20,000 in unspecified "personal property" and $4,000 in cash and deposits.

On February 28, 2014, the trial court heard wife's request for the entry of a default judgment. Wife presented no affidavits and called no witnesses at the hearing.

The trial court nevertheless entered a default judgment. With respect to their son, the court granted wife sole physical and legal custody, and denied husband any visitation rights. With respect to their property, the judgment specified that husband and wife were to retain, as their own separate property and debt, (1) "any and all personal property"; (2) "any and all liabilities, obligations and debts incurred [by husband or wife] in [his or her own name] after January 1, 2008," which was the date wife alleged they separated; (3) "any and all gifts received . . . during marriage"; and (4) "all earnings and accumulations of . . . prior to the parties' marriage and subsequent to the date of separation." The judgment also provided, as to wife alone, that she would retain "any and all rights, title and interest in the following retirement, pension and IRA accounts in [wife's] name, including but not limited to [wife's] CALPERS retirement account."

The judgment made no provision for the $250,000 in student loans, the "unknown amount of back taxes," or the $30,000 in "community personal and past community business debts" husband disclosed in the income and expense declaration he filed prior to entry of the default judgment.

IV. Efforts To Set Aside Judgment

On April 24, 2014, husband moved to set aside both the 2012 order of default and the 2014 default judgment under Code of Civil Procedure section 473, subdivision (b) and the court's equitable powers. The trial court refused to vacate the order of default because husband's motion (1) was not filed within a "reasonable time" within six months of the entry of the default in 2012; and (2) lacked merit because husband did not demonstrate the requisite "mistake, inadvertence, surprise, or excusable neglect." Because it found "[no] basis to set aside the default . . .", the court also declined to set aside the default judgment.

V. Appeal

Defendant timely appeals.

DISCUSSION

Husband argues that the trial court erred in (1) striking his petition as a terminating sanction for his refusal to serve a preliminary declaration of disclosure, (2) declining to vacate its order of default in 2012, and (3) entering a default judgment in 2014.

I. Imposition of Terminating Sanction

Spouses have fiduciary duties to each other. (§ 721, subd. (b) ["in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of the persons occupying confidential relations with each other"].) These duties extend to "the management and control of community property" (In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 569; § 1100, subd. (e)), and continue notwithstanding "the separation of the spouses [and] the commencement of a dissolution proceeding" (In re Marriage of Modnick (1983) 33 Cal.3d 897, 905).

Our Legislature partially codified these duties in sections 2100 through 2107. (See In re Marriage of Fong (2011) 193 Cal.App.4th 278, 286-287 [noting how these statutory duties are "fiduciary in nature"]; In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 651 (Sorge) [same].) Specifically, section 2104 obligates each spouse to serve upon one another—but not the court—a sworn "preliminary declaration ofdisclosure" that "set[s] forth with sufficient particularity" (1) "[t]he identity of all assets in which the [disclosing spouse] has or may have an interest and all liabilities for which the [disclosing spouse] is or may be liable, regardless of the characterization of the asset or liability as community, quasi-community, or separate" (§ 2104, subd. (c)(1)), and (2) "[t]he [disclosing spouse']s percentage of ownership in each asset and percentage of obligation for each liability where property is not solely owed by one or both parties" (id., subd. (c)(2)). (See generally, §§ 2104 & 2102.) Section 2105 requires the spouses to serve on one another a "final declaration of disclosure" that "include[s]" (1...