Filed 6/2/22 Marriage of Stevenson & Bosier CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT
In re the Marriage of ELLERY JEAN and VICTORIA STEVENSON

.

ELLERY JEAN STEVENSON,

Respondent,

v.

VICTORIA BOSIER,

Appellant. F082425

(Super. Ct. No. 655132)

ORDER MODIF YING OPINION [CHANGE IN JUDGMENT]

THE COURT:

Pursuant to California Rules of Court, r ule 8.264(c), the court makes the following modification to the May 31, 2022 , opinion issued in the above captioned case:

1. The following sentence is added to the DISPOSITION :
“The parties shall bear their own costs on appeal .”

This modification changes the judgment.

DETJEN, A.P.J.2

WE CONCUR:

FRANSON, J.

PEÑA, J.Filed 5/31/22 Marriage of Stevenson & Bosier CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

In re the Marriage of ELLER Y JEAN and VICTORIA STEVENSON

.

ELLERY JEAN STEVENSON,

Respondent,

v.

VICTORIA BOSIER,

Appellant. F082425

(Super. Ct. No. 655132)



### OPINION

THE COURT *
APPEAL from an order of the Superior Court of Fresno County. Cynthia Hopper,

Commissioner.
Victoria Bosier, in pro. per., for Appellant.
No appearance for Respondent.

- ooOoo

-

* Before Detjen, Acting P. J., Franson, J. and Peña, J.2

At the c enter of this appeal is appellant Victoria Bosier’s effort to “amend” the
judgment dissol ving her marriage to Ellery Jean Stevenson in 2004. This opinion

addresses the appealability of the decision made in the trial court, the v alidity of the

decision made

, and the adequacy of the record provided. We affirm the trial court’s
denial of the request to amend.

FACTUAL AND PROCEDURAL SUMMARY
Appellant and Stevenson were married on January 21, 1995, and separated on
July 14, 2000. On July 1 7 , 2000, Stevenson filed a petition to dissol ve the marriage,
citing irreconcilable differences and stating no assets were subject to di s position . The

record provided here lacks any evidence o n how or when the petition was served on
appellant

. On August 29, 2000, Stevenson filed a request to enter a default judgment, noting
appellant had not responded to the petition. Stevenson filed a declaration for default or
uncontested dissolution on September 29, 2004. A judgment of dissolution of marriage
was signed and filed on that same date. A notice of entry of judgment (2004 judgment)

, also filed on September 29, 2004 , contained a mailing address for appellant

. In October 2007, a ppellant went to the Fresno County Clerk’s Office and

discovered that a judgment had been granted in September 2004 dissolving her marriage

. Appellant conte nds that when she informed the c lerk’s office that she had never been
served with any documents, she was told she could “get this amended.”
On September 11, 2020, Stevenson died. On December 30, 2020, appellant filed a
request to change or amend the 20 04 judgment

. 1 In a document dated December 3, 2020,
that appears to accompany the request, appellant states she was unaware of the divorce,

1 While not referencing a divorce or dissolution, the document references the case number for the dissolution action, ask ing for a change or amendment.3

had never been served, and had signed nothing related to a divorce. 2 In a letter addressed
to the presiding judg e, appellant explained that after visiting a local Social Security
office, she was informed her marriage lasted only nine years 10 months. 3 A ppellant also
explained her reasons for the need to amend the judgment dissolving her marriage to

Stevenson

. The letter and accompanying documents rais ed a variety of allegations about
the relationship between appellant and Stevenson , and sets out claims she was never

served with the divorce papers and that her signature was forged

. A hearing on appellant ’s request to amend the judgment was held on February 16,

2021. 4 On that same date

, the court issued an order denying the request to amend the

2004 judgment

. When denying the request, the court stated :
“There is no proof of service filed a nd th e peti t ioner is deceased.
“Court h a s reviewed t he filed paperwork a nd cour t allows her t o provide
t es t imony. Respondent only provided testimony as to her knowledge of t he judgment filed 10/2007 and u pon her knowledge of t hat judgment in 10/2007, she did n ot file any paperwork to set aside t h at judgment.
“Court h a s sworn

- in Mrs. [L.T.] and the court asked her support person if she h a s any testimony to provide for t he respondent a s t o respondent’s request to se t aside the judgment a nd [L.T.] s tat ed she h a s no o t her
tes t imony t o provide to t he court

. “As to her request to a mend/se t aside t he judgment, t he status [ sic ] of limitations h a s lapsed to se t aside the judgment a nd Motion is denied based

on t he Court finds t hat t here is no grounds to set aside t he ju dgme nt pursuant to Family Code Sec t ion 2122. ”

Ap pellant filed a timely notice of appeal. No response w as filed to the opening
brief by any party.

2 The document has no filing stamp, so it is unclear when it became part of the trial court file.

3 This calculation of time would be consistent with the marriage ending in 2004.

4 No reporter’s transcript of this hearing has been provided.4 DISCUSSION

I. Is t h e Denial of the Request to Amend the 2004 Judgment Appealable ?
Code of Civil Procedure section 904.1 provides a list of what is considered an
appealable order. Primarily, an appeal must follow a judgment. However, the statute
also provides a list of other orders that can be considered appealable. Of relevance here

is Code of Civil Procedure section 904.1, subdivision (a)(10)

, which recognizes various
orders deemed appealable in the Family Code.
In Family Code 5 section 2120, the Legislature recognized the need to provide
rules addressing the unique types of order s issued when parties dissolve marriages

, or are subject to support orders or child custody arrangements

. Therefore, the “ public policy of
assuring finality of judgments must be balanced against the public interest in ensuring
proper division of marital p roperty, in ensuring sufficient support awards, and in
deterring misconduct. ” (§ 2120, subd. (c).) The specific language applicable to this case
provides:

“ In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six

- month time limit of Section 473 of the Code of Civil Procedure has run, b ased on the grounds, and within the time limits, provided in this chapter. ” (§ 2121, subd. (a).)

A n order granting or denying a motion to vacate a judgment has been found to be
appealable since it follows an appealable judgment. ( Ryan v. Rosenfeld (20 17) 3 Cal.5th
124, 134 .) While it is not entirely clear how appellant wanted to amend the

2004 judgment , t h e effort to amend sought to change the prior judgment in some way

. The refore, the denial of this request to amend the prior judgment was an appealable
order. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143

– 1144.)

5 All further statutory references will be to the Family Co de, unless otherwise specified.5

II. This A ction is Barred by the Relevant Statute of Limitations

T he judgment dissolving the marriage was entered in 2004. Even if she was not
properly served, appellant learned of the 2004 judgment in 2007. Appellant then sought

to amend the 2004 judgment in 2020.
The specific provision in the Family Code most rele vant here is section 2122,
subdivision (a) . This subdivision allows a party to seek a motion to set aside or change a
judgment of dissolution, where there was some form of fraud, such as being kept in
ignorance or fraudulently prevented from participating in the proceeding. If a party is
relying on this subdivision , the motion must be brought within one year after the date on
which the complaining party discovered, or should have discovered, the fr aud. ( § 2 1 22,
subd. (a).)

The letter appellant submitted to the court with her request to amend the

2004 judgment admitted she learned about the 2004 judgment in 2007. The letter does
not provide reasons for the delay in proceeding from 2007

, when app ellant says she
learned about the divorce, and December 2020

, when she filed documents to amend th e

2004 judgment granting the dissolution of her marriage. Nor is there a record of
testimony offered at the time of the hearing in the trial court on the rea sons for the delay.
This lack of evidence was noted by the trial court in the minute order denying the request
to amend the 2004 judgment.
Appellant was required to seek an amendment of the 2004 judgment wi thin one
year after she discovered

, or should have discovered

, that a judgment was entered but
never served. ( In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 571

– 572.) “ An order granting [or denying] a motion to set aside a judgment under

section 2122 is reviewed under an abuse of d iscretion standard. ” ( In re Marriage of

Binette (2018) 24 Cal.App.5th 1119, 1125.) The exercise of discretion will not be6

disturbed on appeal without “ a clear showing of abuse, ” sufficiently grave to result in a miscarriage of justice. ( In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)

A ppellant waited 13 years from the time she discovered her marriage to Stevenson
had been dissolved before she requested an amendment to the 2004 judgment. On both
legal and equitable grounds, w e find no abuse of discretion in the trial court’s decision to
deny the request to amend.

III. A n Adequate Record Has Not Been Provided on the Issue of Unfairness
In her opening brief to this court, appellant pleads for mercy and makes allegations

that she did not receive a fair hearing o n her motion in the trial court. No transcript of the
hearing held on February 16, 2021, has been provided to this court.

“ If an appellant intends to raise any issue that requires consideration of the oral
proceedin gs in the superior court, the record on appeal must include a record of these oral
proceedings

.... ” (Cal. Rule s of Court, rule 8.120 (b).) A record of the lower court
proceedings is required to both support allegations of claimed error

, and to facilitat e a n appellate court ’ s review of those claims

. ( In re Marriage of Wilcox (2004) 124

C al. A pp. 4th 492, 498

– 499 .) T here will be no reversal of a n order for abuse of discretion
when there is no record explaining what occurred at the underlying hearing or the trial

court ’ s reasoning. ( Rhule v. Wavefront Tech nology , Inc. (2017) 8 C al. A pp. 5th 1223,

1228

– 1229 .)

This court is unable to review appellant ’s claim s of unfairness in the hearing

below because an inadequate record has been provided

. DISPOSITION

The trial court’s order denying the request to amend the 2004 judgment is

affirmed.