Filed 2/23/24 Marriage of Gutierrez CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of DOLORES

and FRANCISCO GUTIERREZ.

DOLORES GUTIERREZ,

Appellant,

v.

FRANCISCO GUTIERREZ 

PALAFOX,

Respondent.

 B327354

 (Los Angeles County

 Super. Ct. No. BD659487)

APPEAL from an order of the Superior Court of Los 

Angeles County, Armando Duron, Commissioner. Affirmed.

Patricia Rodriguez Law Group, Patricia Rodriguez and 

Jazmyne Alverson for Appellant.

Francisco Gutierrez Palafox, in pro. per., for Respondent.

_______________________
2

MEMORANDUM OPINION1

Dolores Gutierrez claims that her now former husband 

Francisco Gutierrez Palafox testified untruthfully about certain 

financial matters at their dissolution trial, which resulted in her 

not receiving additional spousal support and her portion of a 

community trucking business called FGP.2 After judgment was 

entered, Dolores filed a request for order (RFO) seeking to set 

aside the judgment because of Francisco’s alleged extrinsic fraud 

at trial. The court denied the RFO, and Dolores now appeals

from that denial. The limited record before us shows no error, 

and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The appellate record in this matter consists only of the trial 

court’s docket entries, the pleadings from Dolores’s RFO to set 

aside the judgment, and the order denying that RFO.3 Neither 

1 We resolve this case by memorandum opinion because it 

is determined by controlling statutes which are not challenged for 

unconstitutionality and does not present any substantial question 

of interpretation or application. (Cal. Stds. Jud. Amin., § 8.1(1).)

2 As is common in family law matters, we refer to the 

parties by their first names for ease of reference. No disrespect is 

intended. The parties dispute the precise legal name of the

trucking business. They agree it begins with FGP, and we thus 

use those initials to refer to it.

3 Francisco filed a request to augment the record to include 

tax returns for FGP that he asserts corroborate his claims about 

the business. We deny the request, as nothing suggests these 

documents were presented to the trial court. (Cal. Rules of 

Court, rule 8.155.) While Code of Civil Procedure section 909

authorizes us to make findings of fact on appeal, we exercise such 
3

party designated reporter’s transcripts from any proceeding; we 

thus have no transcript of the dissolution trial, the post-judgment

RFO hearing, or anything else. Nor does the record contain the 

declarations of disclosure, which Dolores purports to cite.

We glean from this meager record the following. Dolores 

filed for dissolution on May 19, 2017; the marriage had no minor 

children. Trial was held on May 12, 2022 and June 2, 2022. At 

trial, Dolores was represented; Francisco was not. The parties’ 

appellate briefing disputes what occurred at trial. As these

assertions are not supported by record citations or a reporter’s 

transcript, we disregard them. At the trial’s conclusion, the court

took the matter under submission and issued a written ruling 

with its findings on June 3, 2022.

The primary trial issue was characterization of the marital 

residence. Dolores argued the home was her separate property

because Francisco purportedly gave it to her post-separation to 

avoid being on the hook for delinquent mortgage debt he had 

promised but failed to pay in lieu of support. The court found 

Dolores’s testimony was not credible because, among other 

reasons, the alleged mortgage debt did not exist at the time of the 

claimed transmutation. Further, once the house was supposedly

deeded to Dolores, she filed an RFO for spousal support soon 

thereafter even though she claimed the transfer of the home to 

her was consideration for Francisco’s non-payment of support.

The court set aside the grant deed purporting to transfer the 

home to Dolores and found the house was a community asset. 

authority sparingly and only in exceptional circumstances. (Diaz 

v. Professional Community Management, Inc. (2017) 16 

Cal.App.5th 1190, 1213.) Neither party articulates that such 

exceptional circumstances exist here, and we find none.
4

The court ordered the home sold with the net proceeds divided 

equally between the parties.

Given the parties’ relative financial situations and the 

applicable Family Code4 sections, the court awarded Dolores 

$12,611 in need-based attorney fees under section 2030 to be paid 

from Francisco’s portion of the home sale proceeds. Pursuant to 

section 4320, the court ordered Francisco to pay Dolores $488 a 

month in permanent spousal support. The court noted that 

Dolores failed to provide recent paystubs as ordered before trial

verifying her claimed income. Francisco provided a completed 

and current income and expense declaration including recent 

paystubs, which showed his income had decreased after a 

temporary spousal support award of $488 a month was made in 

October 2018. However, in part because Francisco agreed to 

continue paying $488 a month in support, the court found that 

amount appropriate as the permanent spousal support award.

With regard to FGP, the court’s ruling states: “The parties 

owned a community property [transportation] business known as 

FGP . . . . At one time, the business operated three large trucks 

with two employees driving two of the trucks, [Francisco] driving 

the third. [Dolores] took care of the office. [Francisco] testified 

that the business failed as a result of the COVI[D]-19 pandemic 

and he now works as a mechanic. The trucks too were sold off. 

The parties disputed by whom but neither provided this court 

with more than va[g]ue allegations and unsubstantiated claims. 

No claim of a breach of fiduciary duty with respect to this 

4 All unspecified statutory references are to the Family 

Code.
5

business was made during trial. Therefore, there are no assets of 

FGP for this court to divide at this time.”

The docket shows judgment was entered on November 18, 

2022. Before judgment was entered, on October 5, 2022, Dolores 

filed an RFO to set aside the court’s decision after trial and/or the 

judgment if it was entered before the RFO was heard. The RFO

claimed Dolores learned for the first time at trial that Francisco 

was claiming FGP had shuttered and its assets no longer existed, 

and thus she had “not [been] in a position to present any evidence 

regarding the ongoing viability of the business.” Dolores asserted

her subsequent investigation showed Francisco’s trial testimony 

about FGP and his current employment was false and attached 

documents purporting to corroborate her claims. According to 

Dolores, these documents showed FGP had not folded and sold its 

assets. Instead, Francisco continued to own and operate the 

business under a different name—Only One Trans, Inc. (Only 

One)—which was the same company Francisco listed as his 

employer on his most recent income and expense declaration, and 

the company listed on the paystubs attached to that declaration. 

Dolores requested the court set aside the court’s decisions 

regarding spousal support and FGP pursuant to sections 2121

and 3691, or alternatively adjudicate FGP as an omitted asset 

under section 1101. She also requested attorney’s fees under 

section 271 and/or section 1101.

Franciso filed an opposition on November 9, 2022. It 

included a sworn declaration from Francisco stating his 

testimony at trial was truthful, that several of the trucks and 

trailers at issue “were sold by [Dolores] herself, proceeds of which 

[Dolores] kept to herself,” and explaining in his view how the 

documents attached to Dolores’s RFO did not support her claims. 
6

Francisco submitted evidence that FGP was no longer operating 

under any name and was suspended by the Secretary of State 

from doing business. He stated that he incorporated Only One 

post-separation but that its ownership and operation was later 

transferred, and that Only One currently employed him as a 

mechanic. Francisco averred he truthfully reported his 

employment and income at trial, and that he did not have any 

self-employment income as Dolores claimed. Francisco further 

noted that Dolores had substituted counsel following the trial, 

and claimed her RFO was “an attempt for reconsideration of the 

prior ruling” after trial. Francisco requested Dolores pay his fees 

for opposing her RFO under sections 2030 and/or 271, because he 

lacked the financial ability to pay such fees, and because 

Dolores’s motion lacked merit and was an attempt to 

unnecessarily prolong an already protracted dissolution.

Dolores filed a reply on November 16, 2022. Her reply

continued to deny that she had any involvement in selling FGP’s 

assets, and otherwise disputed what Francisco had to say.

The trial court denied the RFO at a hearing on 

November 23, 2022. As noted above, the record contains no 

reporter’s transcript or minute order for this hearing. We thus 

cannot determine whether any further evidence was adduced by 

either party at the hearing beyond what was set forth in the RFO 

pleadings.

The record does include a findings and order after hearing 

filed on January 17, 2023, stating the court denied the various 

requests raised by both parties; that order does not elaborate the 

reasons for the denial.
7

DISCUSSION

A. Appellate Jurisdiction and Standard of Review

We have jurisdiction over Dolores’s appeal, as it is from an 

order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) We 

reject Francisco’s claim that the appeal is untimely. Dolores 

appeals an order entered January 17, 2023, and timely filed her 

notice of appeal on February 21, 2023. (Cal. Rules of Court, rule 

8.104.)

Dolores asserts our review should be de novo, claiming her 

arguments are based on a question of law. But she identifies no 

pure question of law for us to review. Dolores instead argues that 

her RFO’s factual showing required the court to find Francisco 

committed extrinsic fraud and to set aside the judgment. In 

reviewing the evidence supporting a motion to set aside a family 

law judgment based on allegations of fraud, “we extend all 

legitimate and reasonable inferences to uphold the judgment. 

The disposition of such a motion rests largely in the discretion of 

the trial court, and its decision will not be disturbed on appeal 

unless there has been a clear abuse of discretion.” (In re 

Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.) The same 

standard applies to our review of a trial court’s decision 

regarding an omitted asset claim under section 1101. (In re 

Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.)

“We review factual findings of the family court for 

substantial evidence, examining the evidence in the light most 

favorable to the prevailing party. [Citation.] ‘ “ ‘In reviewing the 

evidence on . . . appeal all conflicts must be resolved in favor of 

the [prevailing party], and all legitimate and reasonable 

inferences indulged in [order] to uphold the [finding] if possible.’ ” 

[Citation.]’ [Citation.]” (In re Marriage of Rossi, supra, 90 
8

Cal.App.4th at p. 40.) This presumption of correctness means an 

appellant’s “ ‘[f]ailure to provide an adequate record on an issue 

requires that the issue be resolved against [the appellant].’ ” 

(Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

B. The Trial Court Did Not Abuse its Discretion in 

Denying the Request to Set Aside the Judgment

Dolores alleges that Francisco testified untruthfully in his 

declaration of disclosure and at trial, but we cannot fairly assess 

these claims because the appellate record does not include the 

declaration of disclosure or a transcript of Francisco’s trial 

testimony.

What we do know is that, with regard to spousal support, 

Dolores asserts the documents attached to her RFO show 

Francisco had undisclosed self-employment income beyond the 

wages he reported on the income and expense declaration used at 

trial and thus a greater ability to pay more in support than he 

claimed.

5 Francisco’s declaration in opposition to the RFO

maintained that he truthfully reported his employment and

income at the trial, and he did not have any self-employment 

income as Dolores claimed.

As for FGP, our understanding of what occurred at trial is 

confined to the court’s findings stating that the parties disputed 

which one of them sold the trucks FGP operated, and that both 

5 Francisco’s appellate brief argues the documents attached 

to Dolores’s RFO are inadmissible hearsay and otherwise 

unreliable. Nothing in the record indicates these objections were 

made before the trial court, and we therefore consider Francisco’s

evidentiary objections forfeited. (Guastello v. AIG Specialty Ins. 

Co. (2021) 61 Cal.App.5th 97, 105.)
9

Dolores and Francisco provided only “va[g]ue allegations and 

unsubstantiated claims” about the business. Dolores asserted the 

documents attached to her RFO showed Francisco continued to 

operate FGP under a different name. In response, Francisco 

submitted evidence that FGP was no longer operating under any 

name, was suspended by the Secretary of State from doing 

business, and again claiming that before FGP went out of 

business Dolores sold some of its trucks and trailers and kept the 

proceeds for herself. He also denied current ownership or 

management of Only One.

As the party moving to set aside the judgment, Dolores had 

the burden of proof. (E.g., In re Marriage of Brewer & Federici

(2001) 93 Cal.App.4th 1334, 1345 [applying § 2121].) When “ ‘the 

trier of fact has expressly or implicitly concluded that the party 

with the burden of proof did not carry the burden and that party 

appeals, it is misleading to characterize the failure-of-proof issue 

as whether substantial evidence supports the judgment. . . . [¶] 

Thus, where the issue on appeal turns on a failure of proof . . . , 

the question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law. 

[Citations.] Specifically, the question becomes whether the 

appellant’s evidence was (1) “uncontradicted and unimpeached”

and (2) “of such a character and weight as to leave no room for a 

judicial determination that it was insufficient to support a 

finding.” [Citation.]’ [Citation.]” (Dreyer’s Grand Ice Cream, Inc. 

v. County of Kern (2013) 218 Cal.App.4th 828, 838.)

Dolores’s evidence attached to her RFO was not 

uncontradicted and unimpeached, as Francisco submitted 

evidence in opposition that both contradicted and impeached her 

claims. Nor was Dolores’s RFO evidence so compelling as to 
10

leave no room but to agree with her characterizations. The 

limited record before us suggests potential concerns with the 

credibility of both parties. In assessing the RFO, the trial court 

found Francisco’s explanation the more credible one, as it denied 

the request to set aside the judgment. Unlike us, the trial court 

was privy to the parties’ trial testimony and to their demeanor 

when testifying at trial and at the RFO hearing after being 

sworn. Based on its knowledge of the parties’ testimony and 

what occurred before the trial court, the court resolved the 

conflicting evidence submitted in connection with the RFO 

adverse to Dolores, and that is “not [an] issue[ ] we rework on 

appeal. Appellate courts ‘do not reweigh evidence or reassess the 

credibility of witnesses. [Citation.]’ [Citation.] Put another way, 

‘[t]he Court of Appeal is not a second trier of fact . . . .’ 

[Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th 

1509, 1531.)

We further observe that, even if we overlook Francisco’s 

sworn denial to the contrary, the record does not inalterably 

support Dolores’s claim of surprise regarding Francisco’s trial 

testimony about FGP and her alleged inability to respond to it

during trial. Dolores asserts that Francisco committed extrinsic 

fraud.6 “Extrinsic fraud occurs where a party is deprived of the 

6 Dolores bases this extrinsic fraud claim on sections 2122

and 3691. Section 2122 permits setting aside a judgment 

adjudicating support and property division on the ground of 

“[a]ctual fraud where the defrauded party was kept in ignorance 

or in some other manner was fraudulently prevented from fully 

participating in the proceedings.” (§ 2122, subd. (a).) Section 

3691 permits setting aside a support order on the ground of 

actual fraud “[w]here the defrauded party was kept in ignorance 

or in some other manner, other than through the party’s own lack 
11

opportunity to present her claim or defense to the court, or in 

some manner fraudulently prevented from fully participating in 

the proceeding.” (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 

832, citing In re Marriage of Varner (1997) 55 Cal.App.4th 128, 

140.) “ ‘Fraud is intrinsic and not a valid ground for setting aside 

a judgment when the party has been given notice of the action 

and has had an opportunity to present [her] case and to protect 

h[er]self from any mistake or fraud of [her] adversary, but has 

unreasonably neglected to do so. [Citation.] Such a claim of 

fraud goes to the merits of the prior proceeding which the moving 

party should have guarded against at the time. Where the 

defrauded party failed to take advantage of liberal discovery 

policies to fully investigate his or her claim, any fraud is intrinsic 

fraud. [Citation.]’ [Citation.]” (In re Marriage of Varner, supra, 

at p. 140.)

The court’s trial findings do not indicate Dolores was 

caught short by a new and unexpected claim from Francisco that 

FGP’s assets were sold. Instead, the court’s findings appear to 

indicate that both parties agreed at trial FGP’s assets were sold, 

and the dispute was instead over who sold them and whether it 

was Dolores or Francisco that ended up with the sale proceeds. It 

was after trial and the unfavorable finding to her that Dolores 

changed tack and claimed FGP’s assets were not sold but still 

existed at Only One.

Dolores had adequate time before and during trial to gather 

evidence regarding FGP. Trial occurred nearly five years after 

Dolores petitioned for dissolution. The court found Dolores 

of care or attention, was fraudulently prevented from fully 

participating in the proceeding.” (§ 3691, subd. (a).)
12

worked at the business, so she knew FGP was a topic to be 

addressed at trial when dividing community property and debt. 

The trial itself occurred over two days spread nearly three weeks 

apart. We cannot tell from the record what day Francisco’s 

testimony about FGP occurred, but Dolores’s reply brief claims it 

was on the first day of trial (May 12, 2022). If so, Dolores had 

ample opportunity to investigate and prepare rebuttal evidence 

before trial resumed on June 2, 2022.7 And if that was for some 

reason not enough time, there is no indication in the appellate 

record that Dolores (who was represented) requested a 

continuance to marshal any necessary additional evidence 

concerning FGP. In short, Dolores had an opportunity to fully 

investigate her claims regarding FGP and provides no 

satisfactory explanation for failing to present the evidence 

attached to her RFO at trial.

While we agree with Dolores that Francisco owed fiduciary 

duties of disclosure to her, the court found the evidence before it 

did not show Francisco violated those duties or committed 

extrinsic fraud. Our review of the record does not show that 

determination was an abuse of discretion.

7 Dolores’s post-judgment RFO was based on publicly 

available records pulled from government websites, and not on 

anything unavailable to her at the time of trial.
13

DISPOSITION

The trial court’s order is affirmed. Francisco is awarded his

costs on appeal.

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.