IN RE: the Marriage of LORNA and MICHAEL ROOS.

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Court of Appeal, Second District, California.

IN RE: the Marriage of LORNA and MICHAEL ROOS. Appellant, v. MICHAEL ROOS, Respondent.

B216438

Decided: June 23, 2010

Lorna Roos, in pro. per.   Law Offices of Goodman and Metz and Jordon Metz for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

This is a marital dissolution case.   Lorna Roos (Lorna) appeals a post-judgment order denying her motion to set aside the judgment, granting the motion of Michael Roos (Michael) to quash Lorna's subpoenas, and denying Lorna's motion to “freeze assets.”   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Michael and Lorna Roos were married in 1988 and permanently separated in 1999.   They have two daughters:  Caroline born in 1991 and Catherine born in 1993.   After Michael and Lorna separated, Lorna commenced a marital dissolution action.

In April 2004, the superior court held a trial regarding the issue of division of property.   On June 4, 2004, the court entered a judgment.   The judgment divided the community personal and real property and declared certain assets separate property.   The judgment also required Michael to pay Lorna $6,958 per month for child support and $10,000 per month for spousal support for two years, and then $8,000 per month for spousal support until the death of either party, the remarriage of Lorna, or further order of the court.

On September 29, 2008, Lorna filed a motion to set aside the judgment dated June 4, 2004.   Lorna alleged that the judgment should be set aside on the grounds of actual fraud, perjury, mistake, and failure to comply with disclosure requirements.   With her motion, Lorna filed a three and one-half page sworn declaration, which included documents attached as exhibits.1

After Lorna filed her motion, the case was reassigned several times and the hearing on the matter was continued to January 28, 2009.   In the meantime, on January 7, 2009, Lorna served four subpoenas seeking documents relating to Michael's finances, including Michael's tax returns.   The subpoenas were served on Michael, Michael's accountants, and two other third parties.

On January 14, 2009, Michael filed a motion to quash the subpoenas.   Subsequently, the trial court set the hearing on Lorna's motion to set aside the judgment and the hearing on Michael's motion to quash on April 27, 2009.

On April 15, 2009, Lorna filed an ex parte motion for an order “(1) freezing [Michael's] assets including Commerce Casino Card Club interest held by [Michael] and [Michael's] sister, Melissa Roos Walker;  (2) prohibiting the destruction or alteration of any documents;  (3) requiring [Michael] to submit a full accounting of all assets wrongfully transferred via the concealed sham trust/fraudulent Roos Family Living Trust, tax returns on Mike Roos individual [sic ], Mike Roos and Company, the Roos Family Living Trust, and any and all EIN tax returns not disclosed as previously requested in subpoenas issued for hearing the set-side motion and Mike Roos needs to provide a current final financial disclosure within 10 days;  (4) pulling the passports of both Mike Roos and Melissa Roos Walker until there is a complete accounting of all monies received from Commerce Casino Card Club so the losses and damages sustained to [Lorna] and [Lorna's] twin sister can be completely recovered and satisfied (5) joining [Lorna's] twin sister, Leslie Stevenson Reilly to the case and (6) authorizing expedited discovery for set-aside motion to be heard on April 27th, 2009.”

This motion was based on the same documents filed with the motion to set aside the judgment, as well as an unverified eight-page declaration.   We shall refer to this motion as Lorna's “motion to freeze assets.”

On April 15, 2009, the court denied Lorna's motion to freeze assets without prejudice on the ground that Lorna did not provide notice to Michael.   However, the court stated that the motion would be considered on April 27, 2009, provided Lorna gave Michael notice.

On April 27, 2009, the superior court denied Lorna's motion to set aside the judgment, granted Michael's motion to quash, and denied Lorna's motion to freeze assets.   This appeal followed.

CONTENTIONS

Lorna makes numerous arguments regarding alleged errors made by the superior court over an extended period of time.   However, Lorna's notice of appeal only relates to the superior court's order dated April 27, 2009.   We shall limit this opinion to the Lorna's appeal of that order.

Lorna's primary argument is that the superior court abused its discretion in denying her motion to set aside the judgment.   The gravamen of Lorna's argument is that the judgment should be set aside because Michael committed actual fraud and perjury by lying about his assets and failing to disclose assets to the trial court.   Lorna contends, inter alia, that Michael failed to disclose (1) assets in the Roos Family Living Trust, including shares in the Commerce Casino Club, (2) accounts he held in joint tenancy with his mother, (3) his interest in various businesses, and (4) accounts with Charles Schwab, Bank of America and Wells Fargo.   She also contends that Judge Kenneth Black of the superior court “fraudulently” gave Michael certain credits against his support obligations.   Lorna seeks, among other relief, an order vacating the judgment, granting her attorney fees, “freezing” Michael's assets, and allowing her to conduct discovery.

DISCUSSION

1. Lorna's Motion to Set Aside the Judgment

Family Code section 2122 provides:  “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:

“(a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.   An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.

“(b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.

“(c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.

“(d) Mental incapacity.   An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.

“(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact.   An action or motion based on mistake shall be brought within one year after the date of entry of judgment.

“(f) Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100).   An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.”

We review a trial court's order denying a motion to set aside a judgment for abuse of discretion.  (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346.)

Lorna contends that the judgment should have been set aside by the trial court based on Family Code section 2122, subdivisions (a), (b), and (f).  However, Lorna did not file any admissible evidence to support an order to set aside the judgment based on these grounds.   Lorna's declaration in support of the motion consisted of mainly arguments, conclusionary statements, and allegations against Michael and the trial judge.

For example, Lorna stated the following in her declaration:  “How could this [trial] court not allow proper discovery and award [Michael] every single asset in dispute based on fraud, malice, and oppression?   The court at a minimum should have demanded the tax records from [Michael] and a current appraisal on the family home as the fraud, perjury, mistakes, and failure to comply with disclosure requirements would have been discovered much earlier.   It's just criminal that all the orders on this divorce case have been based on actual fraud, perjury, mistakes, and failure to comply with disclosure requirements.”   These statements are conclusionary arguments;  they are not evidence of actual fraud, perjury or a failure to disclose.

We have reviewed Lorna's declaration and the exhibits attached thereto and cannot find any evidence of actual fraud, perjury, or failure to disclose by Michael, or any misconduct by the trial court.   Accordingly, we hold that the trial court did not abuse its discretion in denying Lorna's motion to set aside the judgment.

2. Michael's Motion to Quash Subpoenas

In a marital dissolution case, the superior court has discretion to allow a party to conduct post-judgment discovery relating to community estate assets or community estate liabilities that were not previously adjudicated by the judgment.  (In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 1120-1121;  Fam.Code, § 2556.)   We review the superior court's decision to deny or limit post-judgment discovery for abuse of discretion.  (In re Marriage of Hixson, at p. 1121.)

In her reply brief, Lorna states that she is challenging on appeal the superior court's decision to grant of Michael's motion to quash Lorna's subpoenas.   Lorna does not, however, provide any reasoned argument, citation to authority, or citation to the record to support her challenge.   Accordingly, the issue of whether the trial court abused its discretion in quashing Lorna's subpoenas is forfeited.  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone & Fyke );  Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 (Nelson ).)

3. Lorna's Motion to Freeze Assets

Lorna also challenges on appeal the superior court's denial of her motion to freeze assets.   But Lorna does not provide any reasoned argument or citation to authority to support her challenge.   The issue of whether the superior court erroneously denied her motion to freeze assets is thus forfeited.   (Falcone & Fyke, supra, 164 Cal.App.4th at p. 830;  Nelson, supra, 172 Cal.App.4th at p. 862.)

We nevertheless reviewed Lorna's declaration in support of her motion to freeze assets dated April 15, 2009.   This declaration did not constitute admissible evidence because it was not signed under penalty of perjury.   (Code Civ. Proc., § 2015.5.) Moreover, the declaration mainly consisted of conclusionary arguments and unsupported allegations against Michael, the trial judge, the district attorney's office, and others.   Based on the evidence presented to the superior court, or lack thereof, the superior court did not abuse its discretion in denying Lorna's motion to freeze assets.

DISPOSITION

The order dated April 27, 2009, is affirmed.   Michael Roos is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The appellant's appendix also includes a 16-page print-out of an unsigned email from Lorna to an unknown recipient, dated October 27, 2008, along with an exhibit list of 88 exhibits and copies of those exhibits.   Although Lorna contends that these documents were “submitted” to the court on October 28, 2008, in support of her motion to set aside the judgment, the documents are not conformed and there is nothing in the record indicating the documents were lodged with the superior court.   In fact, the superior court case summary in the record does not include an entry for these documents.   Accordingly, we cannot consider these documents because they were not filed or lodged in the superior court.  (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 723.)   Likewise, we deny Lorna's motions to augment the record because the documents she sought to include in the record were not before the superior court at the time it issued the order Lorna appeals..  FN1. The appellant's appendix also includes a 16-page print-out of an unsigned email from Lorna to an unknown recipient, dated October 27, 2008, along with an exhibit list of 88 exhibits and copies of those exhibits.   Although Lorna contends that these documents were “submitted” to the court on October 28, 2008, in support of her motion to set aside the judgment, the documents are not conformed and there is nothing in the record indicating the documents were lodged with the superior court.   In fact, the superior court case summary in the record does not include an entry for these documents.   Accordingly, we cannot consider these documents because they were not filed or lodged in the superior court.  (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 723.)   Likewise, we deny Lorna's motions to augment the record because the documents she sought to include in the record were not before the superior court at the time it issued the order Lorna appeals.

KLEIN, P. J. CROSKEY, J.