California Family Law Report

Case of the Month Archive

Estoppel doesn’t apply because Dad did not induce Mom to delay filing until after time limit expired . . .

In affirmance, Second District holds that Fam C §2122(a) one-year limit for seeking to set aside judgment does not apply to set-asides of support orders; T/CT did not err by applying Fam C §3691(a) 6-month limit for seeking set-aside of support order on grounds of fraud

After the trial court issued Ruth and Paul Zimmerman’s disso judgment in 1997, the two filed many OSC’s and motions relating to the issues in their disso. After Paul filed an OSC re child-support modification and establishment of arrearages in 2003, the trial court ordered him to pay $1,211 a month for the parties’ three children, plus certain child-care expenses; it also set arrearages at $14,499, and ordered him to pay $500 a month toward them. In February 2006, Ruth filed an OSC for a child-support modification, which Paul countered with a request for a reduction due to the birth of a child in his subsequent marriage. At a hearing in January 2007, the trial court lowered Paul’s monthly child support obligation to $643, coupled with child-care expenses of $250 and $100 a month toward the arrearages. The court stated that depending on financial information that was yet to come from Paul, the child-support mod might be made retroactive to June 1, 2006. Those orders were memorialized in an order issued on May 16, 2007. But in July 2007, another trial judge found that the May 16 support orders were not reflected in the minute order, which simply set another review hearing for June 21, and was later continued to November 5.

Meanwhile, Ruth and Paul conducted extensive discovery in which Ruth sought financial information from Paul’s family including his brother, and several family businesses; Paul’s brother and the businesses opposed discovery. In preparation for the November 5 hearing, Ruth filed exhibits and declarations intended to show that the financial statements that Paul provided to the court in proceedings as far back as 2002 contained fraudulent information that affected the child-support orders. She claimed that she first learned of the fraud in 2007, and that she wanted child support modified retroactive to 2002. The trial court, however, found that Ruth’s submissions were tardy and refused to read them. At a hearing in February 2008, the trial court asked Ruth’s attorney whether she had filed a motion to set aside, but counsel replied that she hadn’t. The court then advised counsel to do so promptly to avoid statutory time limits.

On April 3, 2008, Ruth filed another OSC, seeking a child-support mod based on a change in her job status. On April 29, the trial court ordered Paul to pay $1,387 a month for child support and asked that a formal order be submitted for its signature. However, the formal order was not submitted and signed until October 2008. Meanwhile, on June 10, Ruth moved to set aside the child-support order and for a retroactive modification based on Paul’s alleged fraud and perjury regarding prior orders. In a tentative decision issued on July 22, the trial court ruled that Ruth’s motion was time-barred by Fam C §3691(a) [six month time limit for setting aside support orders]. The court also stated that it was imposing discovery sanctions on Ruth and asked for transcripts of some prior proceedings. The court followed up on August 11 with a minute order incorporating its tentative ruling on Ruth’s motion and other issues, and ordered Paul’s attorney to prepare a formal order. On September 11, 2008, the trial court ordered Ruth to pay discovery sanctions of $3,591 to Paul (at the rate of $360 a month), and $7,500 to various family businesses and Paul’s brother (at $250 a month). The court based its sanctions order on Ruth’s having earlier filed a confusing pleading and her failing to file a proper set-aside motion until much later, all of which caused the opposing parties to pursue extensive discovery at some cost to them.

Ruth appealed from the ruling on the set-aside motion and the imposition of sanctions, but the Second District affirmed.

A motion is not a judgment . . .
The justices quickly brushed aside any contention that the orders were not appealable, finding that both postjudgment orders regarding support modifications and sanctions orders are appealable. They then turned to the question of whether Fam C §3691 was the applicable statute in this case and not Fam C §2122 [one year statute of limitations for setting aside judgments on grounds of fraud], as Ruth contended. The justices pointed out that §3691 specifically states that “ ‘[t]he grounds and time limits for an action or motion to set aside a support order, or any part or parts thereof, are governed by this section and shall be one of the following:’ ” and goes on to list the ground actual fraud or perjury. The statute also states that the time limit for filing an action or motion based on fraud or perjury is six months from the date that the moving party discovered or reasonably should have discovered the fraud or perjury. After reviewing the trial court proceedings that preceded Ruth’s set-aside motion, the panel noted that there had been some confusion about the actual orders issues, but not reflected in the court file. However, contrary to Ruth’s claim that the hearing on November 7, 2007 was essentially a hearing under §3691, they could find no proceeding that could qualify as a motion to set aside. In addition, the justices were not persuaded that §2122 should be the operative statute because it clearly applied to motions to set aside a judgment, while §3691 specifically applied to motions.

Ruth has issues . . .
Ruth claimed that even if §2122 did not apply, the court could set aside the order on grounds of extrinsic fraud. The justices didn’t agree. They reasoned that §3691 statutorily preempts that traditional equitable ground for relief, making it the sole remedy for setting aside a support order. As for her contention that the limitations period should be equitably tolled, the panel reminded Ruth that the doctrine of equitable tolling is narrowly applied and never in cases such as this one, where the doctrine conflicts with a relevant statute. Besides, the justices said, Ruth failed to raise the issue at trial; thus, she had forfeited her right to raise it here. In addition, the panel gave short shrift to Ruth’s assertion that the trial court should have permitted live testimony and a trial on the statute of limitations issue; the court need not do so in a postjudgment motion proceeding where live testimony was unnecessary to resolve the issue. And finally, the justices shot down Ruth’s claim that Paul should be estopped from asserting the statute of limitations, since the order after hearing that he served on her incorrectly stated that the trial court gave her until June 10, 2008 to file a set-aside motion. The panel pointed out that at the February 2008 hearing the trial court advised Ruth’s attorney to file a set-aside motion quickly. Moreover, there was no evidence that Paul induced Ruth to delay filing her motion until the time limit had passed. Accordingly, the justices concluded that estoppel did not apply. Summing up, the panel determined that the trial court correctly applied §3691 and that Ruth’s motion was untimely because she had notice of the alleged fraud and perjury in November 2007, but failed to file her motion until more than six months later.

Enough is enough . . .
Finally, the justices considered whether the trial court’s imposition of discovery sanctions was appropriate. When they reviewed the lower court’s basis for awarding sanctions-confusing early pleading, forcing opposing parties to incur fees to oppose discovery, seeking premature discovery, and various other procedural defects-the panel found that there was sufficient evidence to support the order. Therefore, the lower court had not abused its discretion in doing so.