Friday, January 25, 2013
Court of Appeal Rejects Claimed Right to Counsel in Divorce Proceedings
By a MetNews Staff Writer
The First District Court of Appeal yesterday ruled against a man who says he was denied the effective assistance of counsel in his contested divorce proceedings.
Div. Four said that because there is no right to counsel in dissolution proceedings, a plea for reversal based on counsel’s ineffectiveness necessarily must fail.
George E. Campi II and Mary L. Campi filed for divorce in May 2003. Litigation over their dissolution lasted over seven years, concluding with a one-day trial in December 2010.
In a stipulated order filed in April 2007, the parties agreed that the husband would have the option to purchase the family residence in Pacifica at a value of $679,000.
At trial, the stipulated value of the home was not in issue, and the main disagreement was over the amount of credits the husband should receive against it.
In March 2011, San Mateo Superior Court Judge Richard Dubois issued a tentative ruling awarding the home to George Campi “at the agreed upon value of $679,000,” and said that he should pay his wife $227,754 for her interest in the home after offsets and credits.
Each party disputed the ruling, with appellant accepting the valuation of the home, but arguing that the correct equalizing payment was $219,233.
Dubois agreed with the husband, and issued an order which concluded with the statement that the husband “shall prepare a judgment incorporating the contents of this order.”
Instead of preparing a judgment, however, George Campi obtained new counsel and filed a motion for a new trial, primarily on the ground of ineffective assistance of counsel. Dubois denied the motion and appellant appealed.
Contra Costa Superior Court Judge Barry Baskin, sitting by assignment, cited the general rule that there is no due process right to counsel in civil cases, except in cases where the litigant stands to lose his physical liberty or dependency hearings which could result in the loss of custody of a minor child.
Since neither of those circumstances applied, the appellant had no right to counsel in his case and his arguments about the alleged ineffective assistance his trial counsel provided were moot.
Also without merit was respondent’s contention that her former husband’s appeal was not timely filed, despite the fact that both he and Dubois had treated Dubois’ statement of decision as a judgment for purposes of the motion for a new trial.
Baskin said such treatment was not dispositive, because under California Rule of Court 5.134(a)(2), the clerk is required to give notice of entry of a judgment of dissolution using form FL-190, which the clerk did not do until eleven months after Dubois had issued his tentative ruling. Saying it was bound to accord the right of appeal in doubtful cases, the panel decided it would have to resolve the matter on the merits, but concluded that the merits favored the respondent.
Among the novel arguments raised by appellant was that there was no record that he ever filed a proof of service regarding his preliminary financial disclosures. Since such a failure on his part cannot be waived, he claimed, the judgment must be set aside.
The panel held that it did not need to address the legal question of whether a party’s own misconduct could cause reversible error, since Campi had actually represented to the court on three different occasions that he had filed his preliminary declaration of disclosure, and that he had never raised the issue in the trial court.
But even if he were somehow allowed to raise it on appeal, the justices said, it was invited error of which he was estopped to complain.
Justices Timothy Reardon and Maria Rivera concurred in the opinion.
The case is In re Marriage of Campi, A134030.
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