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In re the Marriage of TIMOTHY and KATHLEEN COLT. v. TIMOTHY SCHUYLER COLT

November 30, 2010

IN RE THE MARRIAGE OF TIMOTHY AND KATHLEEN COLT. KATHLEEN B. COLT, RESPONDENT,
v.
TIMOTHY SCHUYLER COLT, APPELLANT.



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

Marriage of Colt

CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

I. BACKGROUND

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.

II. DISCUSSION

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 ...


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