Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



November 30, 2010


The opinion of the court was delivered by: Margulies, J.

Marriage of Colt



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After respondent Kathleen Colt petitioned for divorce from appellant Timothy Colt, the two engaged in lengthy mediation regarding a division of their property. Before the conclusion of the mediation process, Timothy withdrew and ceased communications.*fn1 In an effort to advance the process, Kathleen filed an amended dissolution petition, attaching the proposed disposition of assets developed with the mediator. A default judgment was entered after Timothy failed to respond to the amended petition. Timothy contends the family court erred in denying his motion to vacate the judgment. We affirm.


Kathleen filed a petition for dissolution of her 21-year marriage with Timothy on February 13, 2008. A default judgment of dissolution, containing a detailed division of the couple's extensive property and an award of spousal support, was entered on November 6, 2008.

The evidence submitted by the parties in connection with Timothy's motion for relief from the judgment explains the intervening circumstances. Following the filing of the dissolution petition, the parties met on four occasions with a professional mediator. On these occasions, Kathleen was represented by counsel, while Timothy represented himself. By the end of a June 2008 mediation session, the parties were "very close" to a settlement, and Kathleen's attorney prepared a detailed proposed settlement agreement on the basis of their joint understanding. The proposal was essentially an even division of their assets. The parties had hired an appraiser to value their real estate, and their bank and securities accounts were divided equally, except as necessary to offset the differences in value of the allocated real estate. Shortly before the final scheduled mediation session, counsel sent the documents to Timothy, who did not respond and disregarded every subsequent effort to contact him. Timothy did not attend the final scheduled mediation on August 15, nor did he attend a rescheduled session on September 11, 2008.

In an effort to bring the matter to a conclusion, Kathleen filed an amended petition for dissolution on September 5, 2008. The amended petition contained a proposed division of property based on the proposed agreement. When Timothy failed to file a timely response to the petition, Kathleen served a request for entry of default on October 10. The request contained a detailed schedule of community assets and an income and expense declaration. Timothy's default was entered on October 30, and a default judgment was subsequently entered on November 6. Timothy was served with all of these documents but did not respond until two weeks later, when his attorney filed the motion for relief from default.

Timothy's motion to set aside the judgment acknowledged the parties' mediation sessions, explaining that because he had not responded to the dissolution petition during the pendency of those sessions, he was unaware of his obligation to respond to the amended petition. Timothy noted he had been under "tremendous emotional distress" throughout the dissolution process that "made it difficult for me to deal with this case" and constituted grounds for relief from the default. He claimed not to have been served with the various default documents until November 12, the day before judgment was entered. Timothy also took issue, to a degree, with the terms of the settlement and accused Kathleen of misconduct. Kathleen characterized Timothy's motion as a case of "buyer's remorse" and denied any wrongdoing in connection with the couple's financial affairs.

At the hearing on the motion to set aside the default, the family court explained it was persuaded by Kathleen's filing of an amended petition "that seems to have put the importance of this back on the table." The court refused to conclude "[Timothy's] doing nothing constituted excusable neglect or mistake." During argument, the court examined the court file and confirmed the amended petition was personally served on Timothy, contrary to his attorney's argument. The court denied the motion, unpersuaded by counsel's arguments that because Timothy had never responded to the original petition, with Kathleen's consent, the filing of the amended petition would not have put him on notice of the need to file a response, that the settlement was unfair, and that Kathleen had acted improperly in various ways.


Timothy contends the family court erred in denying his motion to vacate the default and set aside the judgment.

" 'The first portion of [Code of Civil Procedure] section 473, providing that the court "may" relieve a party from a dismissal, vests the trial court with the discretion to vacate a dismissal based on a party's or attorney's excusable neglect.' [Citation.] It states in pertinent part: 'The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.' " (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418.)

A party seeking relief under Code of Civil Procedure section 473 on the grounds of excusable neglect bears the burden of demonstrating the neglect was excusable in order to secure relief. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) "Excusable neglect" under section 473, subdivision (b) is generally defined as an error a reasonably prudent person under the same or similar circumstances might have made. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354.) "A 'mistake' justifying relief [under section 473] may be either a mistake of fact or a mistake of law. 'A mistake of fact exists when a person understands the facts to be other than they are; . . .' [Citation.] [¶] . . . [¶] A mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction." (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368-1369.) We review a trial court's ruling on a motion to vacate default under section 473 for abuse of discretion. (In re Marriage of Jacobs (1982) 128 Cal.App.3d 273, 284.)*fn2

Timothy first characterizes the default as a "sneak attack," contending he was under the impression he was not required to answer the petition while the parties were mediating. The argument fails for at least two reasons. First, to the extent Timothy contends he had an agreement with Kathleen that he need not respond during the mediation, the claim is not supported by the record. In his declaration in support of the motion to vacate the default, Timothy stated only, "From on or about April 2008 to September 2008, [Kathleen] and I were attending regularly mediation sessions with [the mediator], to try to resolve all issues in this case. I thought that by doing so, I was adequately protecting my rights and interests." There is no mention of any agreement with Kathleen regarding whether he needed to respond to the original petition, let alone any amended petition.

Second, to the extent there was such an agreement, Timothy had long since stopped participating in the mediation by the end of October, when the default was requested. The declaration submitted by Kathleen, undisputed by Timothy, states he last participated in the mediation in June. Since at least August, he passively refused to have any part in the process. It was this withdrawal that prompted the filing of the amended petition. Any belief Timothy held that he was not required to answer the petition during the mediation process therefore would not explain his neglect, since the process had already been ended by his own conduct.

Timothy also contends his failure to answer the petition should be excused because he is not a lawyer and is not familiar with legal procedures. Under the law, however, Timothy's conduct in representing himself is subject to the same professional standard as the conduct of an attorney. (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084 ["Both civil litigants and criminal defendants who represent themselves in the trial court are held to the same standards as are parties who are represented by counsel"].) Under that standard, failing to answer an amended petition is not excusable neglect, since it is not the type of error an attorney of reasonable prudence might make. (See Ambrose v. Michelin North America, Inc., supra, 134 Cal.App.4th at p. 1354.)

Timothy contends Kathleen inflated the value of the estate in the amended petition and committed various improper acts. There are two grounds for rejecting this contention. First, it is irrelevant to the issue of Timothy's excusable neglect in failing to respond to the amended petition. The misconduct alleged by Timothy is not the type of "extrinsic" fraud that prevented him from learning about his claims to the marital estate or otherwise interfered with his participation in the proceeding. (See Heyman v. Franchise Manufacturing Acceptance Corp. (2003) 107 Cal.App.4th 921, 926.) Second, Kathleen's misconduct was an issue of fact resolved against Timothy by the family court. Kathleen denied any wrongdoing, and it was for the family court to resolve the conflict in the evidence. We find no abuse of discretion in the court's decision to credit Kathleen's evidence.

Timothy next contends the decision was improper because it was rendered by a commissioner, rather than a superior court judge. There is nothing improper about the court's use of a commissioner. "[C]ommissioners are the backbone of most family law departments." (Settlemire v. Superior Court (2003) 105 Cal.App.4th 666, 670.) They are entitled to "[t]ake proof and make and report findings thereon as to any matter of fact upon which information is required by the court" (Code Civ. Proc., § 259, subd. (b)) and can sit as temporary judges (Cal. Rules of Court, rule 10.700(b)). Timothy would have been entitled to review of the commissioner's order by a superior court judge under certain circumstances (e.g., Code Civ. Proc., § 259, subd. (b)), but there is no indication in the record he filed a timely exception to the commissioner's ruling or otherwise sought review by a judge. Accordingly, we find no reversible error on this basis.

Timothy claims he was not served with the request to enter default. The court file, however, contains a declaration of service showing the request was served on him by mail on October 10, over three weeks before entry of his default. Notice was an issue of fact for the family court to resolve, and the declaration of service constitutes substantial evidence to support the family court's conclusion Timothy was properly served.

Finally, Timothy argues only a slight showing of excusable neglect is necessary to vacate a default in a family law matter, given the strong policy favoring trial on the merits. (See, e.g., In re Marriage of Varner (1997) 55 Cal.App.4th 128, 139.) While this may be true,*fn3 we find little evidence of excusable neglect on this record. Timothy ceased participating in the mediation process, stopped communicating with Kathleen and her counsel, and ignored the amended petition and request for default when they were served on him. It would have been imprudent for Timothy to assume he could bring a legal proceeding unilaterally to a halt merely by refusing to participate. Even assuming he believed he was not required to answer the amended petition based on his experience during the period of mediation, as he claimed, the request for entry of default should have alerted him that circumstances had changed--or at least have caused him to consult counsel about that possibility. Yet it was not until he received notice that judgment had been entered against him that he responded. As discussed above, "excusable neglect" must be measured against an objective standard of prudence. There is not even a slight argument that a reasonably prudent person would treat a legal proceeding in this manner, particularly after having participated in it for an extended period of time, as Timothy did. We find no abuse of discretion in the family court's refusal to vacate the default.


The judgment of the family court is affirmed.

We concur: Marchiano, P.J. Banke, J.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.