Family Code section 2122 requires that a motion to vacate a dissolution judgment on the grounds of fraud or perjury must be brought within a year from the date fraud was, or should have been, discovered. An unpublished opinion out of Los Angeles County helps us understand how the “should have been discovered” test is performed
Robert and Jacqueline were married in 1979. Robert petitioned for dissolution of marriage on March 26, 1997. The judgment of divorce was entered on December 6, 1999, and a stipulation to correct the judgment was filed on February 26, 2001.
On April 1, 2011, Robert filed his amended notice of motion and motion to vacate the judgment due to fraud, verbal threats, coercion, and forgery. In it, Robert alleged that while he was without counsel, he received “countless” telephone calls from Jacqueline’s counsel’s office, mandating with verbal force that he had to sign papers or he would go to jail. Robert later determined that the individual calling was “[p]aralegal or [n]otary Mr. Godwin M. Tomakili.”
Robert further alleged that new factual information had recently come to light. He claimed that a nonparty to the dissolution of marriage recently contacted Mr. Tomakili. Mr. Tomakili voluntarily informed this third party that his signature as witness to an “Interspousal Transfer Deed” executed in connection with the Good divorce was not his real signature.
Appellant’s motion to vacate the judgment of dissolution was heard and denied on May 4, 2011. The trial court found:
While Family Code 2121 permits [the] court to set aside a judgment based on fraud, it must be done within one year of when the fraud was discovered or should have been discovered. There is no showing based on the facts that actually are before me the alleged fraud if there was alleged fraud should have been discovered 10 years ago in 2001 when it occurred because the allegation is there was duress, misstatements that happened, it was aware to the [respondent], and so at a minimum the fraud should have been discovered at that time. Secondly, the [appellant] has not met his burden of showing actual fraud since the document on its face shows that it is a transfer of title, and finally it is a requirement to get relief under the code that the moving party demonstrate that were I to grant that relief that there would be a different outcome. There is no showing that there is a different outcome. . . . And just to be clear, it is denied as both untimely as well as on the merits.
On May 26, 2011, appellant filed his notice of appeal. Robert loses. According to the court, Robert failed to establish any deliberate concealment by Jacqueline. He also failed to prove that the alleged fraud could not have been discovered earlier. Furthermore, Robert did not establish that, were the court to grant the motion, a different outcome would result. Under the circumstances, the trial court’s decision was well within the bounds of reason.
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