During my travels around the internet, at one time, a year ago, I
found an opinion by a Supreme Court Judge regarding setting aside a
Support Order/Marital Settlement Agreement. What he said was
baiscally, "the law allows us to set aside a portion of the judgement
or the entire judgement, but in the case of a Stipulated/Marital
Settlement Agreement, as the court had no determination into its
division of property, the court can only set aside the entire
judgement." He was saying that just because she got the toy wooden
airplane and now the husband wanted it back, they have no way of
knowing how the award of that toy wooden airplane impacted the rest of
the agreement and so, to be fair, they had to set the whole thing
aside.
I have oodles of case law on setting aside judgements, but I can't
find THAT one opinion. I am looking for case law in California
specifically, but if that opinion happened to be from another state (I
don't think it was) then so be it. But I need it.
BIG tip for speed, complete opinion or link thereto, and bonus tips
for listing other california case law that upholds setting aside the
judgement.
I already have Brewer v Federici, Rossi, Fell, Mix, Modnick, Varner,
and Hartley. And I was POSITIVE that it was in one of these cases,
but I can't find it ANYWHERE. Please help me prove that I am not
losing my mind. |
Clarification of Question by
mrdacmalma-ga
on
13 Jul 2004 10:18 PDT
I've upped the Price to $200 and there is a hefty tip involved if
someone can find me the opinion.
|
Request for Question Clarification by
markj-ga
on
13 Jul 2004 14:56 PDT
mrdacmalma --
I have found information that I think is very relevant to the issue
that concerns you, but I am not confident that I have found the exact
case that you remember. But before I spend much more research time, I
would like your clarification as to whether I seem to be on the right
track.
I have found a case and commentary that applies and explains the
California doctrine that a marriage dissolution agreement that
combines both property and support settlement terms is generally not
modifiable if it is demonstrably intended to be a single and complete
agreement. If it meets certain criteria to establish the intent of
the parties that it is to be considered as a single settlement, it can
be modified only in the event of fraud or "mistake."
A hypothetical example showing the reason for California's special
treatment of such combined agreements would be a settlement in which a
husband agrees to pay $X in child support while his wife gets the
Lexus instead of the Subaru. The unitary nature of the agreement
suggests that the husband might have paid more in child support if she
had accepted the Subaru.
However, the California appellate case I have found did not turn on
the property settlement but rather on the issue of whether the
*support* provisions of a privately negotiated combined
support/property settlement could be modified in one respect by the
trial judge's final order. The appellate court said "No" for the
reason cited above, and ordered the trial judge to conform the final
divorce decree to the settlement agreement. Based on all of the
discussion in that case, it seems to me to leave no doubt that the
same reasoning would apply to the property portion of the agreement.
(It seems fair to assume that most post-divorce litigation relates to
support -- not property division -- provisions, however.)
This specific case does not sound to me like the one you remember, but
it does contain a substantial discussion of the legal effect of a
unitary support/property settlement agreement in California, along
with citations to other California cases on that subject.
I would appreciate your advice as whether this case and its citation
of other case law to the same effect sounds like it would be helpful
to you. Until I hear from you, I will assume that this is not the
specific case that you remember, and I will keep looking. In that
regard, any further clues would be most welcome.
markj-ga
|
Clarification of Question by
mrdacmalma-ga
on
13 Jul 2004 16:22 PDT
Thank you for your question about clairification. The case you have
mentioned is about post-disolution transactions for modification. The
case I was looking for is basically vacating the judgement in the
entirety (excepting the dissolution portion) including the entire
settlement agreement. It was based on fraud (might have been mistake,
but I think it was fraud), and the Appelate court said it could not
make the determination as to what each portion of the agreement had in
weight over the entire agreement (just like your Subaru example
below). I has to be the judgement was set aside.
|
Clarification of Question by
mrdacmalma-ga
on
14 Jul 2004 07:39 PDT
What I remember of the web page that the case was on, was that the
case was in the top section, then a box below with a legal commentator
talking about the case, and in the commentators box, was a quote from
the opinion of the justice saying that they could not simply set aside
a portion, they had to set aside the whole matter.
|
Clarification of Question by
mrdacmalma-ga
on
15 Jul 2004 10:23 PDT
I searched Lexis also, but that was my problem. I can't be certain it
was a PUBLISHED opinion. I only know that the outcome was that the
judgement was overturned, and that the supreme who overturned it said
that. Is there another way to determine that?
|
Clarification of Question by
mrdacmalma-ga
on
15 Jul 2004 10:49 PDT
I am willing to pay the fee and hefty tip for anyone who can do the following:
Provide case law (in CA) that would grant relief for the following circumstances:
Disso in 2000
Support Ordered was more than gross wages (but did not know that at the time)
Judge says signing tax returns is equivalent to knowing your earnings
(I think that it means that you know you have a good tax man if the
number is low)
Ex-wife was bookkeeper after divorce and handled all the books
Did not know she wasn't taking full amount of support payments until 2003
Just got hit with $120,000 arrearage bill! Average earnings over last
10 years was $22K per year.
Now back injury forces retraining (but have 13 month old son to care
for from new marriage)
Judge did already set aside Ex-wife assigning me all the tax liability
from when she wrote payroll checks, withheld taxes from the checks,
and pocketed the money. I think that's fraud, but the judge won't use
the word, so I'm screwed, yes? As no other judge will admit the
finding of fraud, even though it is evident.
So, my license is being suspended, my contractor's license is already
suspended, and I am facing contempt charges because I have a blown
disk and cannot swing a hammer.
Can someone please tell me that there is a statute out there that can
grant relief? Judge says statute of limitations has run because of
signing tax returns. Bankruptcy will not discharge family support (it
was family, not separate child and spousal support).
So, keeping in mind that dissolution was in 2000 and so was the 1999
tax return, I need something other than Family Code section 2120, or
case law that states signing a tax return was not constructive notice
of earnings.
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