California Husband Who Slept Through His Trial Not Allowed to Re-try Property Division Issues

An old maxim familiar to those well-versed in the law says that “equity aids the vigilant, not those who slumber on their rights.” In a recently decided matter before the Fourth District Court of Appeal, this was, in some ways, literally true. A husband, who was initially self-represented, had received an unfavorable property distribution ruling in his divorce case after he slept through a hearing, leaving no one to argue his side of the case. He then spent a great deal of time and effort trying in vain to use other procedural bases to get a judge to re-decide the issues. However, since the courts had already fully litigated the topics he was trying to revisit, the courts ruled against him.

The couple in this case separated in 2010 after 14 years of marriage. In 2013, the trial court scheduled a hearing for early December regarding the status of several pieces of property. The husband, who had no legal counsel representing him at that point, had received notice of the hearing, but he overslept and missed it. Since the husband had no attorney, and the judge deemed him to be a voluntary “no show,” the hearing went on in his absence, with the court hearing only the evidence and arguments brought forward by the wife and her counsel. Unsurprisingly, the court later made a ruling that declared two residential properties as the couple’s properties but declared two Charles Schwab IRAs as the wife’s separate property.

Having lost in this ruling, the husband asked the trial court to vacate that judgment under Section 473 of the Code of Civil Procedure. That section gives judges the authority to “relieve a party … from a judgment, dismissal, order or other proceeding taken against him,” when enforcing the order would be contrary to justice. This technique is available in any civil case, not just family law cases. In support of this action, the husband stated that the wife, at the trial, failed to disclose several large payments he had made using his separate assets. The trial judge declined, and the husband didn’t appeal.

Next, the husband filed a motion in accordance with Section 2556 of the Family Code. Among other things, the husband wanted reimbursement for the amount of his separate property that he had put into the two residences, and he attempted to challenge again the decision declaring the two IRAs as the wife’s property. Again, the husband lost.

He appealed this defeat in the trial court, but that didn’t succeed either. A Section 2556 action is only available if the asset that is the subject of the action has been previously omitted or not otherwise already adjudicated by the courts. None of the assets at issue in the husband’s recent action, not even his separate property that he allegedly put into the two residential properties, qualified as omitted or unadjudicated assets under the law. As the trial court stated in rejecting the husband’s request, the “assets have been litigated and all the claims that apply to their division, including separate property interest in them, would appear to be subject to res judicata,” which is the legal principle stating that a matter has already been adjudged or decided.

Even though the wife allegedly failed to disclose to the trial judge some money the husband took from his separate property and put into the couple’s residential properties, that did not somehow create an omitted asset issue. The assets that were the subject matter of the husband’s filings were the two residential properties, and they were already adjudicated by the courts. The time to contest these issues was at the December 2013 trial, not with a Section 2556 request.

There are many great reasons to make sure you have experienced legal counsel representing you in your divorce case. This husband’s case is a clear example of that. The hardworking San Diego property division attorneys at Doppelt and Forney, APLC  have helped clients throughout Southern California, including in San Diego, Encinitas, La Jolla, and Chula Vista, and are ready to put their skills and determination to work for you. For a free consultation about your divorce, reach out to Doppelt and Forney, APLC through our website or call toll-free at (800) ROY IS IT (769-4748).

More blog posts:

How Jointly Titled Assets Figure into the Division of Property in Your California Divorce, San Diego Divorce Lawyer Blog, Sept. 6, 2016

California Court Reviews Ex-Wife’s Action To Vacate Divorce Judgment Based on Fraud, San Diego Divorce Lawyer Blog, July 26, 2016

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