In Re Marriage of Wickander

[1366]

Opinion

ASHBY, Acting P. J.

Appellant Barbara Wickander (Wife) brings this appeal to set aside a January 1985 trial court order in favor of James Wickander (Husband). The January order partially vacated a prior order favoring wife. The trial court erred in granting the partial vacation, and the order is reversed.

Husband and Wife were married in March 1982. Wife originally filed for dissolution in October of that year. Numerous reconciliations followed. On February 29, 1984, Wife signed a marriage settlement agreement (MSA) and a declaration for a default dissolution. On June 2, 1984, she again signed a copy of the MSA. Wife was represented by counsel, Mr. Blumberg, at both times, but counsel was not present at either signing. On June 8, 1984, Wife substituted in, in propria persona, for Mr. Blumberg. On September 17, 1984, a judgment dissolving the marriage was entered pursuant to the declaration for default dissolution

1

signed in February. On September 18 Blumberg became Wife’s attorney once again.

On October 1 Wife filed a motion to vacate the judgment and the MSA. On December 6, 1984, the trial court granted Wife’s motion on the ground that Wife signed both documents out of the presence of her attorney, though she was represented by counsel at the time. The trial court specifically found against Wife on the alternate grounds for the vacation, i.e., fraud, undue influence or oppression.

Husband brought a motion for reconsideration (Code Civ. Proc., § 1008)

2

and a motion to vacate the December 6 order (§ 663). Though the motion for reconsideration was denied, the trial court partially vacated the December 6 order: the judgment of dissolution remained vacated, but the MSA was reinstated. This appeal followed.

Discussion

Wife contends that it was error for the trial court to hear Husband’s motion to vacate pursuant to section 663. Section 663 provides that a judgment may be vacated when an incorrect or erroneous legal basis was used for the decision. Wife argues that because the December 6 decision was an order, not a judgment, section 663 is inapplicable. Husband cites two cases which