The Mistake in Marriage of Binette: the New Grounds to Set Aside a Family Law Judgment Based on a Failure to Fulfill Financial Disclosure Requirements

• Publication year: 2019
• Author: Jack J. McMorrow

The Mistake in Marriage of Binette: The New Grounds to Set Aside a Family Law Judgment Based on a Failure to FuLfill Financial Disclosure Requirements

Jack J. McMorrow

Jack J. McMorrow is a family law attorney at Harris • Ginsberg LLP in Los Angeles. He is President of the Barristers section of the Beverly Hills Bar Association and the California Lawyers Association Family Law Executive Committee representative to the California Young Lawyers Association.

Last year's newly published case, In Re Marriage of Binette,¹ while primarily a discussion about the requirements of California Family Code section 217, the implications of the recent cases In re Marriage of Shim-kus² and In re Marriage of Swain³ set forth a surprising and ambiguous conclusion regarding the bases and timeline to set aside a family law judgment based upon a party and/or the parties' failure to satisfy the statutory financial disclosure requirements. Binette's holding arguably runs afoul of controlling constitutional law concerning the ability to set aside a final judgment without any reference to the constitutional requirements. The ruling calls prior case law into question and calls for discussion - if not clarity.

Section 2122⁴ sets forth explicit grounds and timing for a motion to set aside a judgment entered in a family law matter as follows:

(a)Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.
(b)Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.
(c)Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.
(d)Mental incapacity. An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.
(e)As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.
(f)Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.

The moving party needs to establish more than just the fact that one of the factors set forth in section 2122 occurred. The court in In re Marriage of Kieturakis⁵ reviewed sections 2122 and 2123 and concluded that the party seeking to set aside a judgment "must establish both the presence of at least one of the six factors listed in section 2122 [fraud, perjury, duress, mental incapacity, or mistake], and that this resulted in material disadvantage to the moving party."⁶ Section 2123 explicitly states that "[n]ot with standing any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made . . . ." The California Constitution provides: "No judgment shall be set aside, or . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."⁷

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The focus in this article is on the party(ies)'s failure to satisfy disclosure requirements and when such a failure establishes just grounds to set aside a judgment. Sections 2107 and 2122(f) provide that noncompliance with disclosure requirements may be grounds for a motion to set aside a family law judgment. However, again, it is well established law that no Judgment can be set aside by reason of non-prejudicial error.⁸ The court has routinely used the California Constitution as authority to conclude that noncompliance with disclosure requirements does not in itself grant the court with authority to set aside a judgment -- the party seeking to set aside the Judgment must also establish that he/she suffered a material disadvantage and/or injury.⁹

A thorough explanation of the interplay between the Family Code provisions concerning the grounds to set...