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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of DOLORES and FRANCISCO GUTI ERREZ

.
DOLORES GUTIERREZ,

Appellant,

v.

FRANCISCO GUTIERREZ PALAF O X,

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 Rodrigu ez Law Group

, Patricia Rodriguez and Jazmyne Alverson for Appellant. Francisco Gutierrez Palafox, in pro

. per

. , for Respondent.

_______________________2 MEMORANDUM OPINION 1

Dolores Gutierrez claim s 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 A fter 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

T he 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 t hat RFO. 3 Neither

1 We resolve this case by memorandum opinion because it is determined by controlling statute s 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 th ose 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 C our t, rule 8.155

. ) While Code of Civil Procedure section 909 authorize s us to make findings of fact on appeal

, we exercise such3

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 o n May 19, 2017 ; the marriage had no minor
children

. Trial was held on May 12, 2022 and June 2 , 2022. At trial, Dolores was represe nted; Francisco was not. The parties ’ appellate briefing dispute s what occurred at trial

. As t hese
assertions are not supported by record citations or a reporter’s transcript, we disregard them

. At the trial’s conclusion, the court

t oo k 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 . D olores argued the home was her separate property because Francisco purportedly gave it to h er post

- separation to avoid being on the hook for delinquent mortgage debt he had promised but failed to pay in lieu of support

. T he court found Dolores’s testimony w as 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

- pa yment 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 Manag ement, Inc. (2017) 16 Cal.App.5th 1190, 1213.) N either 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’ relat ive financial situations and the applicable F amily C ode 4 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 order ed before trial verifying her claimed income . Francisco provided a completed
and current income and expe nse 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 s pousal support award

. With regard to FGP, the court’s ruling state s : “The parties owned a community property [transportation] business known as
FGP

. . . . At one time, the business operated three large tr ucks 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 wer e 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 a ssets of
FGP for this court to divide at this time. ” The docket shows j udgment was entered on November 18,
2022. Before judgment was entered, o n October 5 , 2022, Dolores
filed a n 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
claim ed Dolores learned for the first time at trial that Francisco was claiming FGP had shuttered and its assets no longer existed

, and thus she ha d “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. Accord ing to Dolores, these documents showed FGP had not folded and sold its

assets . I nstead, 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 t h e court set aside the court’s decisions regarding spousal support and FGP pursuant to section s 2121
and 3691 , or al ter natively 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

test imony 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 th at he incorporated Only One post

- separation but that its ownership and operation was later
transferr ed , 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. Francis co further noted that Dolores had substituted counsel following the trial,
and claimed her RFO was “a n attempt for reconsideration of the prior ruling” after trial. Francisc o requested Dolores pay his fees for opposing her RFO under section s 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 diss olution

. 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 c ourt denied the RFO at a hearing on November 23, 2022. As noted above, t he 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 part ies ; that order does not elaborat e 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 en tered January 17, 2023

, and timely filed her
notice of appeal on February 21, 2023

. (Cal. Rules of C ourt
, r ule
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 revi ew

. 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 support ing 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. )
“W e 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 b e 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 , 908

Cal.App.4th at p. 40

. ) This presumptio n of correctness means a n 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
decl aration of disclosure or a transcript of Francisco’s trial testimony

. What we do know is that, w ith regard to spousal support,
Dolores asserts the documents attached to her RFO show
Francisco had undisclosed self

- employment income beyond the wages he repor ted on the income and expense declaration used at trial and thus a greater ability to pay more in support than he
claimed

. 5 Francis c o ’s declaration in opposition to the RFO
maintain ed 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 t he court’s findings stat ing that the parties disputed
which one of them sold the trucks FG P 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 befor e 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, Franc isco
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 B rewer & 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 support s 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 unimpeac h ed , as Francisco submitted
evidence in opposition that both contradicted and impeached her
claims. Nor was Dolores’s RFO evidence so compelling as to10

leave no room but to agree with her characterizations

. The
limited record before us suggests potential concern s with the credibility of both parties. In assessing the RFO, t he trial court
found Francisco’s explanation the more credible one, as it denied the request to set aside the judgment

. Unlike us, t he 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 , t he court resolved the conflicting evidence submitted in connection with the RFO adverse to Dolores, and that is “ not [an] issue [ ] we rework on appeal . A ppellate 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, e ven i f 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 in ability to respond to it during trial

. Dolores assert s that Francisco committed extrinsic
fraud. 6 “ Extrinsic fraud occurs where a party is deprived of the

6 Dolores bases this extrinsic fraud claim on s ection s 2122 and 3691. Section 2122 permits set ting aside a judgment adjudicating support and property division on the ground of “[a]ctual fraud where the defrauded party was kept in i gnorance or in some other manner was fraudulently prevent ed 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 lack11

opportunity to present her claim or defense to the court, or in some manner fraudulently prevented from fully participating in the proceeding. ” (

K uehn v. Kuehn (2000) 85 Cal.App.4th 824, 832, citing I

n 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

unreas onably 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 f

ully 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 tha t 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 proceed s. 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 ne arly 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 nearl y 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 rebut tal 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

co ncerning 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 violate d those dutie s or committed
extrinsic fraud

. Our review of t he record does not show that
determination wa s an abuse of discretion.

7 Dolores’s post

- judgment RFO was based on publicly available records pulled from government websites , and not on

an ything unavai lable to her at the time of trial.13 DISPOSIT I ON

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

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.