Good evening nettie287 and thank you for the question. Please bear
with me as I pick apart your question and answer it in sections. I
think it might be less confusing that way!
First of all, let me state for the masses that I am not a lawyer,
however I do have many years experience as a paralegal. I think it is
VERY important that you retain the services of a qualified
Family/Divorce Lawyer to handle the current situation. If you already
have one, fantastic! Be sure to ask any question that come to mind
and have him explain it so that you understand it 100%. After all,
you are probably paying him a pretty penny and he should earn it! If
you do not have any attorney and would like me to recommend some,
please let me know what city/county you reside in and I will do my
best to supply you some attorney/firm names.
So let?s get on with your questions! To begin with, let?s discuss
what led the judge to set aside your judgment.
DURESS: Duress is defined as:
1. Constraint by threat; coercion: confessed under duress.
a. Coercion illegally applied.
b. Forcible confinement.
( http://dictionary.reference.com/search?q=duress )
For example, a person would not be guilty of a crime if he could prove
that he participated only because he believed or had good reason to
believe that he would be SERIOUSLY harmed if he did not participate
and had no other way of escaping serious harm.
Duress can be divided into two areas:
1. DURESS OF IMPRISONMENT: Someone actually loses his liberty.
An example: If a man is illegally deprived of his liberty until he
sign a Petition for Divorce, he may allege duress and the decree may
2. DURESS PER MINAS: This is either for fear of loss of life, for fear
of mayhem, or fear of loss of limb.
Your threat of calling the police in order to protect your child or
yourself, which you have the right to do, is not grounds to set aside
the divorce judgment. You did not threaten him with physical harm, you
did not hold him against his will, you did not take his liberty, nor
do I believe you threatened to call the cops if he didn?t sign the
divorce papers, but rather threatened to call them if he didn?t stop
hitting your child. You may have muttered, "at least he wouldn?t be
touching her anymore..." to which he might have misinterpreted that as
you claiming he was sexually abusing her, but that does not imply
I believe the burden to prove duress is on your husband and his
attorney. To find you guilty or duress, there must be proof beyond a
reasonable doubt that when you threatened to call the police on him,
he readily believed that such threat was used as a way to get him to
involuntarily sign the divorce papers or his physical being would be
I believe the charge of duress is unfounded.
= = = = = = = = = = =
PRELIMINARY DECLARATION OF DISCLOSURE: As far as the Preliminary
Declaration of Disclosure is concerned, California Family Code §2102
states as follows (Please pay particular attention to §2107(d), which
I have emphasized in capital letters):
2102. (a) From the date of separation to the date of the distribution
of the community or quasi-community asset or liability in question,
each party is subject to the standards provided in Section 721, as to
all activities that affect the assets and liabilities of the other
party, including, but not limited to, the following activities:
(1) The accurate and complete disclosure of all assets and liabilities
in which the party has or may have an interest or obligation and all
current earnings, accumulations, and expenses, including an immediate,
full, and accurate update or augmentation to the extent there have
been any material changes.
(2) The accurate and complete written disclosure of any investment
opportunity, business opportunity, or other income-producing
opportunity that presents itself after the date of separation, but
that results from any investment, significant business activity
outside the ordinary course of business, or other income-producing
opportunity of either spouse from the date of marriage to the date of
separation, inclusive. The written disclosure shall be made in
sufficient time for the other spouse to make an informed decision as
to whether he or she desires to participate in the investment
opportunity, business, or other potential income-producing
opportunity, and for the court to resolve any dispute regarding the
right of the other spouse to participate in the opportunity. In the
event of nondisclosure of an investment opportunity, the division of
any gain resulting from that opportunity is governed by the standard
provided in Section 2556.
(3) The operation or management of a business or an interest in a
business in which the community may have an interest.
(b) From the date that a valid, enforceable, and binding resolution of
the disposition of the asset or liability in question is reached,
until the asset or liability has actually been distributed, each party
is subject to the standards provided in Section 721 as to all
activities that affect the assets or liabilities of the other party.
Once a particular asset or liability has been distributed, the duties
and standards set forth in Section 721 shall end as to that asset or
(c) From the date of separation to the date of a valid, enforceable,
and binding resolution of all issues relating to child or spousal
support and professional fees, each party is subject to the standards
provided in Section 721 as to all issues relating to the support and
fees, including immediate, full, and accurate disclosure of all
material facts and information regarding the income or expenses of the
2103. In order to provide full and accurate disclosure of all assets
and liabilities in which one or both parties may have an interest,
each party to a proceeding for dissolution of the marriage or legal
separation of the parties shall serve on the other party a preliminary
declaration of disclosure under Section 2104 and a final declaration
of disclosure under Section 2105, unless service of the final
declaration of disclosure is waived pursuant to Section 2105 or 2110,
and shall file proof of service of each with the court.
2104. (a) After or concurrently with service of the petition for
dissolution or nullity of marriage or legal separation of the parties,
each party shall serve on the other party a preliminary declaration of
disclosure, executed under penalty of perjury on a form prescribed by
the Judicial Council. The commission of perjury on the preliminary
declaration of disclosure may be grounds for setting aside the
judgment, or any part or parts thereof, pursuant to Chapter 10
(commencing with Section 2120), in addition to any and all other
remedies, civil or criminal, that otherwise are available under law
for the commission of perjury.
(b) The preliminary declaration of disclosure shall not be filed with
the court, except on court order; however, the parties shall file
proof of service of the preliminary declaration of disclosure with the
(c) The preliminary declaration of disclosure shall set forth with
sufficient particularity, that a person of reasonable and ordinary
intelligence can ascertain, all of the following:
(1) The identity of all assets in which the declarant has or may have
an interest and all liabilities for which the declarant is or may be
liable, regardless of the characterization of the asset or liability
as community, quasi-community, or separate.
(2) The declarant's percentage of ownership in each asset and
percentage of obligation for each liability where property is not
solely owned by one or both of the parties. The preliminary
declaration may also set forth the declarant's characterization of
each asset or liability.
(d) A declarant may amend his or her preliminary declaration of
disclosure without leave of the court. Proof of service of any
amendment shall be filed with the court.
(e) Along with the preliminary declaration of disclosure, each party
shall provide the other party with a completed income and expense
declaration unless an income and expense declaration has already been
provided and is current and valid.
2105. (a) Except by court order for good cause, before or at the time
the parties enter into an agreement for the resolution of property or
support issues other than pendente lite support, or, if the case goes
to trial, no later than 45 days before the first assigned trial date,
each party, or the attorney for the party in this matter, shall serve
on the other party a final declaration of disclosure and a current
income and expense declaration, executed under penalty of perjury on a
form prescribed by the Judicial Council, unless the parties mutually
waive the final declaration of disclosure. The commission of perjury
on the final declaration of disclosure by a party may be grounds for
setting aside the judgment, or any part or parts thereof, pursuant to
Chapter 10 (commencing with Section 2120), in addition to any and all
other remedies, civil or criminal, that otherwise are available under
law for the commission of perjury.
(b) The final declaration of disclosure shall include all of the
(1) All material facts and information regarding the characterization
of all assets and liabilities.
(2) All material facts and information regarding the valuation of all
assets that are contended to be community property or in which it is
contended the community has an interest.
(3) All material facts and information regarding the amounts of all
obligations that are contended to be community obligations or for
which it is contended the community has liability.
(4) All material facts and information regarding the earnings,
accumulations, and expenses of each party that have been set forth in
the income and expense declaration.
(c) In making an order setting aside a judgment for failure to comply
with this section, the court may limit the set aside to those portions
of the judgment materially affected by the nondisclosure.
(d) The parties may stipulate to a mutual waiver of the requirements
of subdivision (a) concerning the final declaration of disclosure, by
execution of a waiver under penalty of perjury entered into in open
court or by separate stipulation. The waiver shall include all of the
(1) Both parties have complied with Section 2104 and the preliminary
declarations of disclosure have been completed and exchanged.
(2) Both parties have completed and exchanged a current income and
expense declaration, that includes all material facts and information
regarding that party's earnings, accumulations, and expenses.
(3) Both parties have fully complied with Section 2102 and have fully
augmented the preliminary declarations of disclosure, including
disclosure of all material facts and information regarding the
characterization of all assets and liabilities, the valuation of all
assets that are contended to be community property or in which it is
contended the community has an interest, and the amounts of all
obligations that are contended to be community obligations or for
which it is contended the community has liability.
(4) The waiver is knowingly, intelligently, and voluntarily entered
into by each of the parties.
(5) Each party understands that this waiver does not limit the legal
disclosure obligations of the parties, but rather is a statement under
penalty of perjury that those obligations have been fulfilled. Each
party further understands that noncompliance with those obligations
will result in the court setting aside the judgment.
2106. Except as provided in subdivision (d) of Section 2105 or in
Section 2110, absent good cause, no judgment shall be entered with
respect to the parties' property rights without each party, or the
attorney for that party in this matter, having executed and served a
copy of the final declaration of disclosure and current income and
expense declaration. Each party, or his or her attorney, shall execute
and file with the court a declaration signed under penalty of perjury
stating that service of the final declaration of disclosure and
current income and expense declaration was made on the other party or
that service of the final declaration of disclosure has been waived
pursuant to subdivision (d) of Section 2105 or in Section 2110.
2107. (a) If one party fails to serve on the other party a preliminary
declaration of disclosure under Section 2104 or a final declaration of
disclosure under Section 2105, or fails to provide the information
required in the respective declarations with sufficient particularity,
and if the other party has served the respective declaration of
disclosure on the noncomplying party, the complying party may, within
a reasonable time, request preparation of the appropriate declaration
of disclosure or further particularity.
(b) If the noncomplying party fails to comply with a request under
subdivision (a), the complying party may do either or both of the
(1) File a motion to compel a further response.
(2) File a motion for an order preventing the noncomplying party from
presenting evidence on issues that should have been covered in the
declaration of disclosure.
(c) If a party fails to comply with any provision of this chapter, the
court shall, in addition to any other remedy provided by law, impose
money sanctions against the noncomplying party. Sanctions shall be in
an amount sufficient to deter repetition of the conduct or comparable
conduct, and shall include reasonable attorney's fees, costs incurred,
or both, unless the court finds that the noncomplying party acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(d) IF A COURT ENTERS A JUDGMENT WHEN THE PARTIES HAVE FAILED TO
COMPLY WITH ALL DISCLOSURE REQUIREMENTS OF THIS CHAPTER, THE COURT
SHALL SET ASIDE THE JUDGMENT. The failure to comply with the
disclosure requirements does not constitute harmless error.
(e) Upon the motion to set aside judgment, the court may order the
parties to provide the preliminary and final declarations of
disclosure that were exchanged between them. Absent a court order to
the contrary, the disclosure declarations shall not be filed with the
court and shall be returned to the parties.
Source: California Family Code
( http://www.aroundthecapitol.com/code/code.html?sec=fam&codesection=2100-2113 )
If you did not send a Preliminary Declaration of Disclosure to your
husband?s attorney and if no Proof of Service was filed with the
Court, the judge has to, by law set-aside the judgment for failure to
disclose assets. This is, unfortunately, California law.
= = = = = = = = = =
COMMUNITY PROPERTY IN CALIFORNIA:
California Code §760: Except as otherwise provided by statute, all
property, real or personal, wherever situated, acquired by a married
person during the marriage while domiciled in this state is community
Source: California Family Code
( http://www.aroundthecapitol.com/code/code.html?sec=fam&codesection=760-761 )
* * * * *
California Code §850. Subject to Sections 851 to 853, inclusive,
married persons may by agreement or transfer, with or without
consideration, do any of the following:
(a) Transmute community property to separate property of either spouse.
(b) Transmute separate property of either spouse to community property.
(c) Transmute separate property of one spouse to separate property of
the other spouse.
851. A transmutation is subject to the laws governing fraudulent transfers.
852. (a) A transmutation of real or personal property is not valid
unless made in writing by an express declaration that is made, joined
in, consented to, or accepted by the spouse whose interest in the
property is adversely affected.
(b) A transmutation of real property is not effective as to third
parties without notice thereof unless recorded.
(c) This section does not apply to a gift between the spouses of
clothing, wearing apparel, jewelry, or other tangible articles of a
personal nature that is used solely or principally by the spouse to
whom the gift is made and that is not substantial in value taking into
account the circumstances of the marriage.
(d) Nothing in this section affects the law governing characterization
of property in which separate property and community property are
commingled or otherwise combined.
(e) This section does not apply to or affect a transmutation of
property made before January 1, 1985, and the law that would otherwise
be applicable to that transmutation shall continue to apply.
853. (a) A statement in a will of the character of property is not
admissible as evidence of a transmutation of the property in a
proceeding commenced before the death of the person who made the will.
(b) A waiver of a right to a joint and survivor annuity or survivor's
benefits under the federal Retirement Equity Act of 1984 (Public Law
98-397) is not a transmutation of the community property rights of the
person executing the waiver.
(c) A written joinder or written consent to a nonprobate transfer of
community property on death that satisfies Section 852 is a
transmutation and is governed by the law applicable to transmutations
and not by Chapter 2 (commencing with Section 5010) of Part 1 of
Division 5 of the Probate Code
Source: California Family Code
( http://www.aroundthecapitol.com/code/code.html?sec=fam&codesection=850-853 )
* * * * *
California Code §2580:
2580. The Legislature hereby finds and declares as follows:
(a) It is the public policy of this state to provide uniformly and
consistently for the standard of proof in establishing the character
of property acquired by spouses during marriage in joint title form,
and for the allocation of community and separate interests in that
property between the spouses.
(b) The methods provided by case and statutory law have not resulted
in consistency in the treatment of spouses' interests in property they
hold in joint title, but rather, have created confusion as to which
law applies to property at a particular point in time, depending on
the form of title, and, as a result, spouses cannot have reliable
expectations as to the characterization of their property and the
allocation of the interests therein, and attorneys cannot reliably
advise their clients regarding applicable law.
(c) Therefore, a compelling state interest exists to provide for
uniform treatment of property. Thus, former Sections 4800.1 and 4800.2
of the Civil Code, as operative on January 1, 1987, and as continued
in Sections 2581 and 2640 of this code, apply to all property held in
joint title regardless of the date of acquisition of the property or
the date of any agreement affecting the character of the property, and
those sections apply in all proceedings commenced on or after January
1, 1984. However, those sections do not apply to property settlement
agreements executed before January 1, 1987, or proceedings in which
judgments were rendered before January 1, 1987, regardless of whether
those judgments have become final.
2581. For the purpose of division of property on dissolution of
marriage or legal separation of the parties, property acquired by the
parties during marriage in joint form, including property held in
tenancy in common, joint tenancy, or tenancy by the entirety, or as
community property, is presumed to be community property. This
presumption is a presumption affecting the burden of proof and may be
rebutted by either of the following:
(a) a clear statement in the deed or other documentary evidence of
title by which the property is acquired that the property is separate
property and not community property.
(b) proof that the parties have made a written agreement that the
property is separate property.
Please note that:
A. Tenancy in common means ? "Title to property (real or personal)
which is held by two or more people with each having an "undivided
interest" in the property and equal right to use the property, even if
the percentage of interests are not equivalent or the living spaces
are of different sizes. Tenancy in common is not similar to "joint
tenancy," so there is no "right of survivorship" if one of the tenants
in common dies, and each interest may be sold separately, mortgaged or
willed to another."
Source: Legal Explanations.com
( http://www.legal-explanations.com/definitions/tenancy-in-common.htm )
* * * * * *
B. Joint tenancy means ? "A tenancy in which two or more parties hold
equal and simultaneously created interests in the same property and in
which title to the entire property is to remain to the survivors upon
the death of one of them (as a spouse)."
( http://www.answers.com/topic/joint-tenancy )
* * * * * *
C. Tenancy by the entity means ? "A type of brokerage account which
is owned by at least two people, where all tenants have an equal right
to the account's assets and are afforded survivorship rights in the
event of the death of another account holder."
* * * * * *
D. Community property means ? "Property held jointly by husband and
wife; specif Property esp. from employment and debts acquired by
either spouse after marriage that is deemed in states having a
community property system to belong to each spouse as an undivided
one-half interest compare ownership in indivision at ownership. The
states having community property are Louisiana, Arizona, CALIFORNIA,
Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin."
( http://www.answers.com/topic/community-property )
* * * * * *
E. Separate property means ? "Property of a spouse that is not
community property or marital property; esp Property acquired by a
spouse before marriage or individually during marriage (as by gift or
often by inheritance)."
( http://www.answers.com/topic/separate-property?hl=community&hl=property )
Now to my interpretation of these codes:
1. The house you live in, that you purchased with your husband
was community property (see California Code §760)
2. You signed a interspousal transfer agreement for this
property, therefore you, according to California Code §850 (a),
transmuted community property to separate property. In other words,
what was once yours and his, by signing this agreement and by paying
him $45,000.00 became JUST yours. Therefore, in my opinion, he has no
vested interest in it nor should he reap the benefits of the current
3. His house, on the other hand and if my interpretation of the
California Code is correct, would still be considered community
property because, as California Code §760 states, "...all property,
real or personal, wherever situated, acquired by a married person
during the marriage while domiciled in this state is community
property" and you did not sign an interspousal transfer agreement.
You state, "he purchased this home, before our status of divorced was
final and took title as "an unmarried man." Legally, he was still
married to you when this property was purchased and it should be
considered community property.
As to the value of the property:
2552. (a) For the purpose of division of the community estate upon
dissolution of marriage or legal separation of the parties, except as
provided in subdivision (b), the court shall value the assets and
liabilities as near as practicable to the time of trial.
(b) Upon 30 days' notice by the moving party to the other party, the
court for good cause shown may value all or any portion of the assets
and liabilities at a date after separation and before trial to
accomplish an equal division of the community estate of the parties in
an equitable manner.
Source: California Family Code
( http://www.aroundthecapitol.com/code/code.html?sec=fam&codesection=2550-2556 )
I believe the valuation date of your house should be concurrent with
the date(s) you compensated your husband and the interspousal transfer
agreement was signed and not on the date of your upcoming trial. If
the house had remained community property all these years and was to
be equitably divided at the time of your October 3rd trial, I believe
the value of the home should be based on the date closest to your
court date. However, given the fact that you compensated your husband
2 years ago and he transferred the ownership of the house to you (and
it then became separate property), I believe your attorney is correct
in asking for an alternative valuation date.
= = = = = = = = = = =
"Family Code 2126, which states "As to assets or liabilities for
which a judgment or part of a judgment is set aside, the date of
valuation shall be subject to equitable considerations." The word
equitable is too general, and could be interpreted differently."
§2126 states: As to assets or liabilities for which a judgment or
part of a judgment is set aside, the date of valuation shall be
subject to equitable considerations. The court shall equally divide
the asset or liability, unless the court finds upon good cause shown
that the interests of justice require an unequal division.
I believe the term "equitable consideration" is used as it relates to
due consideration for what is fair, unbiased, or impartial such as an
equitable decision, not considerations based on equity.
I do not find any specific case law discussing this particular code.
I would suggest that you speak to your lawyer if you have any
questions regarding the meaning of "equitable consideration" as it
pertains to this particular code.
= = = = = = = = = = =
1. I believe the judge is incorrect for setting aside judgment based
on your husband?s accusation of duress. The burdon of proof now lies
on your husband and his attorney to prove duress.
2. I believe the judge was correct in setting aside judgment based on
the failure to supply a Preliminary Declaration of Disclosure. (See
California Family Code §2102)
3. I believe that the house that was transferred to you via the
interspousal transfer agreement is no longer considered community
property and your husband should not be compensated on top of what you
have already paid him (See California Code §850)
4. In addition, I believe the valuation date of this property should
be October 2002 (when the interspousal transfer agreement was signed
by both parties) and not October 2004 (the upcoming trial date).
5. I believe the property your husband purchased while married to you
is community property (See California Code §760) for the fact that he
was still legally married to you, California is a community property
state and there was no interspousal transfer agreement signed.
6. I believe the term "equitable consideration" is used as it relates
to consideration for what is fair, unbiased, or impartial and not as
it relates to equity or monetary value. Unfortunately, I was not able
to find any case law on this particular family code.
I know this is a lot of reading and information to take in and might,
at times seems confusing. However, I hope this answers your question.
If you need any further clarification before rating, please do not
hesitate to ask!
Google Search Terms:
California family code
( ://www.google.com/search?hl=en&lr=&q=california+family+code )
Clarification of Answer by
21 Sep 2005 15:30 PDT
Nettie: Thank you for the clarification. Below please find my answers.
QUESTION: I am looking for a specific case or cases which the court
sighted or interpreted Section Code 2126. Was a specific date of
valuation chosen? What were the specific circumstances the court
looked at to make its determination?
ANSWER: The only case I could find (finally!) that referenced
California Family Code §2126 is as follows (SEE SECTION III. Date of
Court of Appeal, Fifth District, California.
In re the MARRIAGE OF Sara and Wil CHANDLER.
Sara THOMAS-CHANDLER, Respondent,
Wil CHANDLER, Appellant.
May 21, 2003.
Background: After wife filed for marital dissolution and the parties
entered into an agreement, husband moved to set aside the portion of
the agreement that divided the property. The Superior Court, Kern
County, No. 574186, Kelly, Compton, and Turner, JJ., entered divorce
judgment and ordered husband to pay wife's attorney $5,000.00. Husband
Holdings: The Court of Appeal, Cornell, J., held that:
(1) award of $5,000.00 in attorney fees to counsel for wife was not an
abuse of discretion;
(2) order appointing expert to evaluate the pension funds of the
parties did not prejudice husband; and
(3) valuation of property at the date of trial, rather than the later
date of the evidentiary hearing that occurred after a portion of the
dissolution agreement was set aside, was not an abuse of discretion.
Award of $5,000.00 in attorney fees to counsel for wife was not an
abuse of discretion, in marital dissolution proceeding; husband filed
a motion to set aside the parties' agreement after he learned that he
couldn't immediately access an equalizing payment linked to wife's
deferred compensation plan, husband repeatedly challenged aspects of
the property division, husband was unable to produce any evidence that
the property division from the parties' agreement was unfair, husband
refused to accept wife's settlement attempts, and in the end husband's
share of community property was almost equal to the parties' original
agreement. West's Ann.Cal.Fam. Code §271.
Trial court order appointing expert to evaluate the pension funds of
the parties, even though husband objected to the expert appointed by
the court, did not prejudice husband, in divorce proceeding; trial
court explained that evaluator's earlier refusal to discuss wife's
pension was based on the fact that evaluator had not been hired by the
parties, and husband failed to present any evidence that suggested
that the evaluator's accountings were inaccurate.
Trial court valuation of property at the date of trial, rather than
the later date of the evidentiary hearing that occurred after a
portion of the dissolution agreement was set aside, was not an abuse
of discretion; equitable considerations, such as husband delaying the
resolution of the case and husband offering no factual basis in
support of his claim that the values of certain pieces of property had
increased, did not favor reevaluation. West's Ann.Cal.Fam. Code
APPEAL from a judgment of the Superior Court of Kern County. John I.
Kelly, James L. Compton and Jerold L. Turner, Judges. [FN*]
FN* Judge Kelly ruled on the motion to set aside the division of
property; Judge Compton presided at the evidentiary hearings on July
18 and 19, 2001; and, Judge Turner presided over the remainder of the
case through the Judgment of Dissolution filed on November 28, 2001.
*1 Sara Chandler (Sara) petitioned for dissolution of her marriage to
Wil Chandler (Wil). [FN1] The parties initially entered into an
agreement that settled most issues, including the division of the
community property. Wil subsequently moved to set aside the portion of
the judgment pertaining to the division of the property. After seven
months and five hearings, Wil had failed to adduce any evidence that
would justify alteration of the original agreement. So, the resulting
judgment of the trial court was essentially the same as the original.
In addition, Wil was ordered to pay Sara's attorney $5,000. Although
Wil challenges the judgment on a number of grounds, his main
contention is that the award of fees to Sara's attorney was improper.
We disagree and will affirm the judgment.
FN1. We use the first names of the parties to avoid confusion. No
disrespect is intended.
PROCEDURAL AND FACTUAL SUMMARY
Sara and Wil separated after being married approximately 22 years. On
January 23, 2001, they entered into an agreement that settled the
issues of the custody of their two minor children and the division of
community assets. Of relevance to this appeal, the agreement provided
that Sara would receive the family residence and each party would
retain their individual pension funds. The parties would divide their
deferred compensation accounts at a later time. Each party was to bear
their own attorney fees. In addition Wil was to receive an equalizing
payment of $5,000, to be paid from Sara's deferred compensation plan.
On April 11, 2001, Wil moved to set aside the portion of the judgment
dividing the community assets. In so moving, Wil explained that he
initially understood that he would have immediate access to the $5,000
equalizing payment from Sara's deferred compensation plan. He
subsequently learned that he would have no access to those funds until
Sara retired or otherwise terminated her employment with Kern County.
Sara stated that vacating the judgment would necessitate further
hearings and that she would seek attorney fees for the additional
costs that would be incurred in reaching a new judgment.
The trial court set aside the portion of the judgment that dealt with
the division of property. Since the issue of the value of the
retirement plans of the parties had been raised, the trial court
reserved judgment as to that issue and ordered that Mr. Reddall [FN2]
evaluate each of the pension plans, with each party to pay for the
valuation of the other's plan.
FN2. This surname is variously spelled throughout the record.
On May 23, 2001, Wil substituted out his attorney and notified the
trial court that he would proceed in propria persona. Each party was
ordered to provide discovery to the other, which would allow each
party to obtain valuation of the other's pension fund.
An evidentiary hearing was held on July 18, 2001. At the hearing,
Sara's attorney stated that Sara, unbeknownst to her attorney, had
paid Wil $17,000, apparently in the hope of facilitating an
expeditious resolution. Wil explained that his acceptance of the
payment was based on his original understanding of the agreement,
which provided that the community assets were to be divided equally
between the two, except for the house, which was to be owned by Sara.
Wil stated he understood that the original agreement provided he would
be paid $17,000 out of Sara's deferred compensation fund, and he was
to be paid an additional $5,000 in cash as an equalization payment.
*2 Sara's attorney stated that it was her understanding Wil was to
receive the $5,000 equalization payment out of Sara's deferred
compensation fund and that he would have an additional right to his
portion of the community share of the fund, but the agreement made no
provisions for the immediate payment of his share.
The trial court noted that Wil had accepted a payment of $17,000 from
Sara, who understood that, per the original agreement, an additional
$5,000 was owed to Wil and that periodic payments would be acceptable.
The trial court also noted Wil's acceptance of the payment created an
issue of estoppel and waiver of further claims against the deferred
Pertinent to this appeal, the trial court recognized that the issue of
value of the parties' pension funds had been reserved from the January
hearing. The trial court ordered Wil to procure a valuation of Sara's
fund from Mr. Reddall. Wil complained that he did not trust Mr.
Reddall and thought that he was not "forthright."
Also pertinent to this appeal, Wil contended that the valuation of the
family residence was no longer valid because the valuation had been as
of the date of the hearing on January 23, 2001. The trial court
rejected Wil's contention, noting that the issues reserved from the
January 23 trial date pertained to the distribution of the community
assets, not their valuation. The proceedings were continued without
any further findings or orders by the trial court.
Additional hearings were conducted on September 13, 2001, and October
11, 2001. Wil did not procure a valuation of Sara's pension fund. It
does not appear that any new issues of relevance to this appeal arose
in those hearings. At the October 11 hearing, Wil objected to Sara's
request for attorney fees.
Judgment was filed on November 28, 2001. The trial court found the
division of property provided $179,124 net to Sara and $170,300 net to
Wil. Each party was awarded their own pension and deferred
compensation accounts. Sara received the family residence. Sara also
was ordered to make an equalizing payment of $4,412, which was to be
held as security against Wil's child support payments. The
equalization fund was to be used to offset each monthly child support
payment Wil did not pay. Wil was assessed $5,000 in attorney fees.
Wil contends the trial court abused its discretion on four occasions.
First, he claims the trial court abused its discretion by setting
aside only the portion of the agreement that dealt with the division
of the community assets. Second, Wil challenges the trial court's
award of fees to Sara's attorney. Third, he maintains the trial court
abused its discretion by ordering that Mr. Reddall evaluate Sara's
pension fund, despite his objection. Finally, he contends the trial
court erred by basing its valuation and division of the community
property on an appraisal of the family residence that had been done in
January, nearly a year prior to the date of the order dividing the
community property and six months before the evidentiary hearing in
I. Partial Set-Aside of the Judgment and the award of Attorney Fees
*3 In his first claim of error, Wil complains he "would not have
agreed to forgo certain rights, including his right to spousal
support, visitation, and attorney's fees, if he knew that the rights
he believed he was gaining, including keeping his entire pension and
not having to pay [Sara's] attorney's fees, could be re-litigated and
that he would be deprived of the benefit of his bargain." Wil
contends, without citation to authority, that the trial court should
have vacated either all or none of the agreement.
Family Code section [FN3] 2125 provides, in its entirety:
FN3. All further statutory references to section numbers are to the
Family Code unless otherwise specified.
"When ruling on an action or motion to set aside a judgment, the court
shall set aside only those provisions materially affected by the
circumstances leading to the court's decision to grant relief.
However, the court has discretion to set aside the entire judgment, if
necessary, for equitable considerations."
Wil received his entire pension. He does not contend that the
reduction in the equalizing payment was improper; nor does he point
with specificity to any other aspect of the judgment, other than the
award of attorney fees, which he claims is particularly unjust.
Rather, Wil seems to argue that there is some unspecified overall
unfairness, of which attorney fees seems to be the major component.
 In his second claim of error, Wil contends the award of fees to
Sara's attorney was improper, primarily because the agreement did not
incorporate an award of attorney fees.
We can discern nothing in Wil's arguments or in the record that would
indicate that equitable considerations should have led the trial court
to set aside the entire judgment. The judgment is substantially the
same as the original agreement, and Wil does not cite any particular
aspect of the judgment, other than attorney fees, that is factually
erroneous or fundamentally unfair. Thus, we conclude that Wil's first
and second claims of error are actually about a single issue--attorney
fees. We therefore dispose of Wil's first and second claims of error
by addressing the single issue of whether the trial court abused its
discretion in awarding fees to Sara's lawyer.
" 'A motion for attorney fees and costs in a dissolution action is
addressed to the sound discretion of the trial court, and in the
absence of a clear showing of abuse, its determination will not be
disturbed on appeal. [Citations.] The discretion invoked is that of
the trial court, not the reviewing court, and the trial court's order
will be overturned only if, considering all the evidence viewed most
favorably in support of its order, no judge could reasonably make the
order made. [Citations.]' [Citation.]" (In re Marriage of Keech (1999)
75 Cal.App.4th 860, 866, 89 Cal.Rptr.2d 525.)
Our inspection of the record does not reveal the authority under which
the trial court awarded fees to Sara's attorney. There are two
possibilities. Where the issue is the inability of a party to litigate
their interests because of an imbalance in the financial positions of
the parties, the trial court may award attorney fees to the needy
party under the provisions of section 2032. (In re Marriage of Hublou
(1991) 231 Cal.App.3d 956, 965, 282 Cal.Rptr. 695.) [FN4] On the other
hand, where the public policy of settlement of litigation has been
frustrated by the conduct of one of the parties, section 271 enables
trial courts to award attorney fees as sanctions against the offending
party. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177,
110 Cal.Rptr.2d 111.)
FN4. Hublou discusses the award of attorney fees under former Civil
Code section 4370.5, which has been continued substantially without
change in section 2032.
*4 When the trial court considered awarding fees to Sara's attorney,
it made particular reference to numerous instances where Wil's failure
to produce competent evidence resulted in undue prolongation of the
proceedings. The trial court gave no indication that the award was
based on the relative financial positions of the parties. We therefore
infer that the trial court's award of attorney fees was more in the
nature of a sanction on Wil's conduct and rested on the provisions of
Section 271 provides in pertinent part as follows:
"Notwithstanding any other provision of this code, the court may base
an award of attorney's fees and costs on the extent to which the
conduct of each party or attorney furthers or frustrates the policy of
the law to promote settlement of litigation and, where possible, to
reduce the cost of litigation by encouraging cooperation between the
parties and attorneys. An award of attorney's fees and costs pursuant
to this section is in the nature of a sanction. In making an award
pursuant to this section, the court shall take into consideration all
evidence concerning the parties' incomes, assets, and liabilities. The
court shall not impose a sanction pursuant to this section that
imposes an unreasonable financial burden on the party against whom the
sanction is imposed. In order to obtain an award under this section,
the party requesting an award of attorney's fees and costs is not
required to demonstrate any financial need for the award." (Fam.Code,
§ 271, subd. (a).)
Because he was unable immediately to access the equalizing payment,
Wil moved to set aside the portion of the judgment that linked the
equalizing payment to Sara's deferred compensation plan. In order to
accommodate Wil's concern, the trial court was compelled to vacate
that portion of the judgment pertaining to the division of the
After firing his attorney, Wil proceeded repeatedly to challenge
various aspects of the property division, including valuation of
various community assets. Wil was given multiple opportunities to
present competent evidence that might favorably impact the property
division. After five hearings over a span of about seven months, Wil
was unable to produce any competent evidence that the original
division of property had been anything other than fair. Wil also
refused to accept Sara's attempts to settle the case after being paid
$17,000 in cash and being offered a further payment of $5,000. In the
end, his share of the community property was essentially equal to what
had been agreed upon in the original agreement.
When we read the record in its entirety, we are left with the
indelible impression that Wil's strategy was to have his attorney
negotiate a reasonable division of the property, including an
immediate payment of the amount necessary to equalize the division. He
then spent the next several months without an attorney in a low-budget
attempt to improve his position by mounting random challenges to
various aspects of the property division. He discontinued his efforts
only when it became apparent the patience of the trial court had been
*5 Sara points out that Wil accepted the cash payment of $17,000 early
in the proceedings and he could have hired an attorney if he had
wanted. The point is well taken. Any complaint that Wil may have that
his lack of familiarity with the judicial system prevented him from
being able to present favorable evidence is negated by the choice he
freely made to proceed in propria persona.
Wil also contends that the provisions of the original agreement
provided that each party would pay their own attorney fees and,
therefore, Sara was precluded from requesting an award of attorney
fees. This contention fails for two reasons. First, the attorney fees
provision clearly applied only to those fees incurred up to the making
of the agreement. To hold otherwise would frustrate the public policy
of section 2032, which allows the trial court to equalize the
abilities of the parties to litigate in family law disputes. At the
time of the making of an agreement, no one knows what disputes may
arise in the future or the relative financial positions of the
parties. Second, the trial court must have the ability to control the
litigation and section 271 provides the authority to exercise that
control. Public policy does not allow the parties to circumvent that
control through a pre-existing agreement.
We conclude that the trial court had ample reason to find Wil's
strategy had frustrated settlement of the case and that his actions
resulted in excess costs and attorney fees that Sara should not have
been forced to bear. The trial court had competent evidence upon which
it could determine Sara's excess costs and fees. The trial court also
had information indicating the relative financial positions of each of
the parties. We conclude that the trial court was well within its
discretion in awarding $5,000 in attorney fees to Sara's attorney
under the provisions of section 271.
II. Valuation of the Pension Funds
 At the hearing on July 19, 2001, the following discussion was had:
"THE COURT: I want [Sara's pension fund] evaluated. I want Mr. Rydell
to evaluate it.
"MR. CHANDLER [WIL]: I object to him, your Honor. Because I believe he
was not forthright when I talked to him. I asked him simply if he
evaluated both pensions and he wouldn't answer. I don't know why he
wouldn't answer it. It just seems he is impartial between he and I.
"THE COURT:--who are you going to get to evaluate it?
"WIL: I'm not certain, your Honor. I'm willing to take some advice from the court.
"THE COURT: Mr. Rydell, he has been an expert for 25 years in this
courtroom with regard to evaluations and certainly he probably would
not tell you whether he evaluated both or not. You hadn't retained him
at that point. He is not allowed to give you that information until
such time as you pay him to evaluate another retirement. If you are
asking him whether or not he had evaluated the other retirement, you
didn't get an answer to it; is that correct, Wil?
*6 "WIL: Yes, your Honor. He was perfectly willing to talk about mine
and I hadn't paid for it.
"THE COURT: ... I'm ordering Mr. Rydell to [do] it, Wil. You are to
have it done. It is to be back here in 30 days."
Based on this exchange, Wil contends that he was prejudiced by being
forced to accept a valuation by a person whom he did not trust and who
might have been biased. We see no error.
Essentially, Wil testified that he did not like Mr. Reddall's
reluctance to discuss a pension fund that Mr. Reddall had not been
paid or asked to evaluate. The trial court explained the obvious fact
that Mr. Reddall could not comment on an evaluation he had not been
asked to perform. There is absolutely nothing in the record or in the
pleadings that indicates bias, lack of ability, error, bad attitude,
or any other objectionable quality on the part of Mr. Reddall. Wil's
claim of error is based solely on his subjective impression of Mr.
Reddall. Wil cites no authority to suggest that such a subjective
impression could form the basis for a reversal.
In his briefing, Wil argues at some length that he has a right to an
accurate accounting of the community assets, including his spouse's
pension fund. He does not argue that he did not get one. We agree. Wil
has a right to an accurate accounting of his spouse's pension fund,
and there is no evidence that he got anything other than an accurate
accounting. We conclude that Wil has failed to present any facts upon
which a claim of error may be based.
III. Date of Valuation
 During the hearing on July 18, 2001, Wil objected to valuations
of the parties' deferred compensation accounts and the family
residence. The basis of the objection is somewhat ambiguous since Wil
seemed to alternate between objecting on the grounds that he had not
been awarded an interest and that the valuation date was six months
prior. We will construe Wil's objections at trial to be consistent
with his claims on appeal and conclude his claims were preserved for
appeal by timely objection.
Essentially, Wil claims the trial date was July 18, 2001, the date of
the evidentiary hearing, and the valuations should have been as of
that date in conformity with section 2552, subdivision (a), which
provides that the trial court should "value the assets and liabilities
as near as practicable to the time of the trial." (Ibid.) The trial
court found that the actual trial date was January 23, 2001, and the
only issue reserved for later judgment following an evidentiary
hearing was the valuation of the pension plans. The trial court
therefore concluded the assets in contention were properly valued as
of the January date.
Section 2126 provides that where all or a portion of a judgment has
been set aside, "the date of valuation shall be subject to equitable
considerations." (Ibid.) Even if we assume the trial court was
incorrect when it found the date of valuation for the home and the
deferred compensation funds was January 23, Wil offers no factual
basis for the argument that equitable considerations favored
revaluation of the community property.
*7 During the July hearing, Wil stated that during the six-month
period since the January valuation of the house, its value had
increased by $10,000. Absent some factual basis, Wil's claim is
nothing more than speculation. Further, Wil makes no attempt to
balance the benefits of a revaluation of the community property
against the expense and time of obtaining that valuation. In addition,
the fact that resolution of the case took nearly a year longer than
necessary due to Wil's misdirected strategy militates against finding
an equitable need to order a revaluation of the community assets for
Where a statute empowers the trial court to exercise its discretion to
adjust the valuation of property for equitable reasons, the party
challenging the trial court's exercise of that discretion bears the
burden proving that a more favorable result would have occurred had
the trial court exercised its discretion differently. (McCreadie v.
Arques (1967) 248 Cal.App.2d 39, 44- 45, 56 Cal.Rptr. 188.) Wil has
failed to demonstrate that he suffered in any way from the trial court
setting the value of most of the community property in January 2001.
His claim that the trial court abused its discretion in its valuation
of the community property is rejected.
The judgment is affirmed. Costs on appeal are awarded to Sara.
Source: Westlaw (paid service)
( http://www.westlaw.com )
= = = = = = = = = =
QUESTION: Also, when duress is alleged, (without any proof), and a
judge bases part of his decission on that - who has the burden of
proof? What section code #?
ANSWER: The only code I find that pertains to burden of proof is as follows:
California Evidence Code §502:
"The court on all proper occasions shall instruct the jury as to which
party bears the burden of proof on each issue and as to whether that
burden requires that a party raise a reasonable doubt concerning the
existence or nonexistence of a fact or that he establish the existence
or nonexistence of a fact by a preponderance of the evidence, by clear
and convincing proof, or by proof beyond a reasonable doubt."
Source: State of California v. Myron Carlyle Mower
( http://www.canorml.org/prop/mower/appellantbrief.html )
"A spouse may challenge a premarital agreement on the basis that he or
she did not enter into the agreement voluntarily because of duress or
undue influence. The UPAA [Uniform Premarital Agreement Act ] neither
defines "voluntarily" nor contains any guidance on how to prove duress
or undue influence. Courts look to case law to define these terms and
determine the level of proof required to sustain a challenge to a
premarital agreement. Most state courts hold that duress and undue
influence are a form of fraud. Thus, a spouse claiming duress or undue
influence as a defense to the enforcement of a premarital agreement
must prove specific acts of duress or undue influence by clear and
Source: American Bar Association
( http://www.abanet.org/rppt/publications/magazine/1998/nd98pa.html )
I spoke with William P. Bouda, an attorney here in town and proposed
the same question:
"If a judge sets aside a divorce because the Respondent claimed
duress, does the Respondent have the burden of proof or does the
"Respondent, because that person is the one that is alleging the
duress and therefore always carries the Burden of Proof."
In any case where the Defendant/Respondent accuses the
Plaintiff/Petitioner of duress, the burden of proof always falls on
the one claiming duress. In your case, it falls on your husband.
There is no California Code mandating this, rather it is decided on a
case to case basis. If you claimed duress, it would be on your
shoulder to prove it.
I hope this answers your question.