Court of Appeal:
Pro Per’s Ignorance of How to Proceed Excuses Long Delay
Eight-Year Interval Between Ex-Wife Learning of Former Spouse’s Hidden Asset, a Pension, and Her Pressing Effort to Gain Community Share of That Asset, Did Not Require Finding of Laches, Justice Egerton Writes
By a MetNews Staff Writer
Ignorance of the law was an excuse, the Court of Appeal for this district has held, for a woman’s eight-year delay between learning in 2013 that her then-husband had previously concealed the existence of his pension and her bringing a motion to be awarded her share of that asset.
“[T]he family court was not compelled to apply the defense of laches as a matter of law” on the record before it, Justice Anne H. Egerton of Div. Three said in an unpublished opinion, filed Wednesday.
In April 2013 the former wife, Irma Frausto, found out about the pension. She brought a motion for an order adjudicating entitlement to the asset; the judge issued an order to show cause to the ex-husband, Mario Frausto; in the minute order, the ex-husband’s employer was authorized to release information on the pension; the ex-wife, in pro per, sent a copy of that minute order to the employer; it declined to release information absent a subpoena.
No Immediate Follow-Up
Irma Frausto did not immediately pursue the matter. She failed to appear at the next court hearing on her motion and it was placed off calendar.
In 2015, through an attorney, she secured an order for payment to her of arrearages in spousal support, but no mention was made of the pension.
The ex-wife, represented by counsel, then filed a motion in April 2021, pursuant to Family Code §2556. That section provides:
“In a proceeding for dissolution of marriage…, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment….”
Los Angeles Superior Court Judge Veronica Sauceda granted the ex-wife’s motion for a share in the pension, and Mario Frausto appealed.
“At the outset, it is not clear the defense of laches applies to a request under section 2556….
“Even assuming laches is a valid defense to a request under section 2556, Mario has not shown the family court erred in declining to apply it here.”’
She said that Sauceda “reasonably could have found Irma provided a sufficient explanation for the delay,” explaining:
“The record shows Irma asserted her right to the pension in 2013, shortly after she learned of its existence. Irma explained, however, that she struggled to comply with the necessary legal procedures because she is disabled, not well-educated, and lacked family support. Mario does not contest these claims or explain why they are insufficient to excuse the delay.”
The justice remarked:
“[T]he only possible prejudice we have found in Mario’s declaration is his claim that he is living on a fixed income and has grown accustomed to his full pension. The court reasonably could have determined this conclusory assertion, lacking any supporting detail, showed insufficient prejudice for a laches defense. At the very least, reasonable minds could differ on the issue.”
Not Omitted Asset
The former husband also contended that the pension was not an omitted asset given that it “was disclosed since May 6, 2013” when it came to be in issue in the Superior Court proceeding.
“Here, Mario does not contest that his pension is community property. Nor does he contest that, because he failed to disclose the pension in connection with his dissolution petition, the judgment did not address it. Although Irma raised the issue in 2013, the court did not adjudicate the pension at the time. The pension, therefore, is an omitted asset for purposes of section 2556; it is irrelevant that it “was disclosed” in 2013.”
The case is Marriage of Frausto, B315425.
Laguna Hills attorney Michael Anthony Younge represented the ex-husband.
The former wife was initially represented on appeal by Huntington Beach attorney Angela Schmidt but she substituted out; Irma Frausto was then in pro per; she filed no brief; but nonetheless prevailed.
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