Monday, January 14, 2019
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Judge Faulted for Blocking Enforcement of Judgment Earlier Jurist in Case Ordered
By a MetNews Staff Writer
A Tulare Superior Court judge acted unreasonably in declining to grant enforcement of a judgment because he thought—erroneously—that the judge who previously handled the case should not have ordered its entry, the Fifth District Court of Appeal has declared.
It held also that, under the circumstances of the case, failure of the party suing for divorce to list the marital residence in her papers as an asset did not preclude an award to her of the home pursuant to a default judgment.
Justice Kathleen Meehan wrote the opinion, which was filed Thursday and not certified for publication.
The opinion announces, at the outset:
“APPEAL from a judgment of the Superior Court of Tulare County. John P. Bianco, Judge.”
However, throughout the opinion, Bianco is referred to only as “the second judge.” The Tulare judge who ordered entry of the judgment—Antonio A. Reyes—is not mentioned by name, being identified, instead, as “the first judge.”
(Although the opinion is said to be an appeal from a “judgment,” the introduction says: “Appellant Kaitlyn Mello appeals the trial court’s denial of her request to appoint an elisor to execute documents in order to effectuate the terms of a final judgment of dissolution.” The Tulare Superior Court register shows that Bianco acted on a request for a “Post Judgment order of enforcement.”)
Service by Publication
Mello on Oct. 4, 2013, filed for a dissolution of her marriage to Reginald Dennis Moore, a professional basketball player. Moore had left the United States on Jan. 2, 2013, to play for a team in Angola and, after attempts to serve him personally with the summons and petition there failed, Reyes granted an application for an order for publication of the summons in a newspaper in Visalia, the marital domicile.
Moore did not file an answer and Mello applied for a default judgment, attaching a marital settlement agreement signed by both parties before the husband left for Africa. The agreement recited that Moore was to receive the home that the couple had shared in Visalia.
Reyes on Dec. 5, 2014, granted a judgment, dividing the property in accordance with the settlement agreement—including a provision that Mello would receive the family residence—and instructing that each party “execute any and all documents required to carry out this division.” However, Moore did not return from Angola and never signed the necessary papers.
2016 Motion
On Dec. 19, 2016, Mello filed an ex parte request that the court exercise its inherent authority under Code of Civil Procedure §128(a)(4) to appoint an elisor to sign documents, vesting title in the residence in her. The case came before Bianco, who concluded that he could not hear the matter because Moore had not been served with notice of the motion, and he subsequently denied a motion for reconsideration.
Bianco said:
“In declining to exercise its discretion to appoint an Elisor in this action, the court takes into consideration issues of notice and validity of the Judgment which are present.”
He questioned the validity of the judgment based on a lack of actual notice to Moore and because the petition did not list the marital residence as an asset of the community.
Meehan said that, under the circumstances, “the first judge” did not err in granting leave to effect service by publication and that there was no error in the granting of a default judgment. The ex parte application for an enforcement order was proper, she added, because, under Code of Civil Procedure §585(b), the fact of Moore’s default obviated any need to serve him with further papers other than specified ones of a different sort.
No Mention
Bianco had expressed a concern that under Code of Civil Procedure §580(a), the “relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint.” With respect to the petition not mentioning the house in question, Meehan wrote:
“Although the marital residence was not listed in the petition or on an attachment thereto, we find that any notice concerns under Code of Civil Procedure section 580 are alleviated by the circumstances present in this case….Here, Moore entered into a marital settlement agreement that Mello included with the declaration in support of her request for entry of a default judgment, testifying under oath that it is a true and correct copy of the couple’s agreement and signatures. The agreement identifies the marital residence, one vehicle and two debts and sets forth the couple’s agreement as to their disposition.”
She said that Moore evidently understood that in ensuing court proceedings, the terms that he and his wife had agreed upon would be carried out, and noted that Moore had broken off contact with Mello and had not undertaken any communication with the court.
“It is reasonable to infer from these circumstances that Moore was content Mello would proceed to dissolve their marriage and dispose of their limited community assets based on their written agreement,” Meehan said, adding:
“The judgment that was entered in this case did no more than that. No material relief was awarded to Mello that the couple did not expressly set forth in the agreement. We therefore conclude that Moore had notice that Mello would be awarded the marital residence based upon his express consent.”
Holding Limited
Meehan specified that the holding was not so broad as to declare that “a marital settlement agreement generally is a substitute for listing marital property in the petition for dissolution or that a marital settlement agreement will cure Code of Civil Procedure section 580 notice concerns in all circumstances,” setting forth:
“Here, it would have been preferable for Mello to have included the marital settlement agreement and a list of the marital property with the petition for dissolution. We find only that the agreement and attendant circumstances in this case are not a sufficient basis for the trial court to exercise its discretion not to enforce the final judgment duly entered by the same court.”
The jurist went on to remark:
“Generally, it is axiomatic that parties to a final judgment are entitled to its enforcement. Otherwise, the judicial system’s necessary reliance on the finality of judgments would be at risk. Here, although the second judge raised concerns about, and was critical of, the judgment and the procedure by which it was entered, he did not declare it void, nor did he modify or set it aside. As a result, the judgment remains valid and enforceable as entered. It is not reasonable to base a refusal to enforce a final judgment on disagreements with its entry when there is no legal basis for denying the relief requested.”
The case is Marriage of Mello & Moore, F075446.
Controversy Over Bianco
Bianco has been the subject of controversy over an order last summer barring the public and press from a hearing on property seized pusuant to warrants served on a hospital’s ex-managers.
The Visalia Times-Delta on Aug. 18, 2018, reported:
“At one point, six armed Tulare County sheriff’s deputies were ordered to confront the media….”
The newspaper report quoted attorney Nikki Moore, of the California Newspaper Publishers Association, as saying that Bianco “failed to comply with the constitutional standard and rule of court on closing the courtroom. She said this would require “notice to the public on the question of closure and after a hearing” at which it was found “that there exists an overriding interest supporting closure; there is a substantial probability that the interest will be prejudiced absent closure; the proposed closure is narrowly tailored to serve that overriding interest; and there is no less restrictive means to achieve the overriding interest.”
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