In Re Marriage of Mason

California Court of Appeal Jun 24, 1996 No. B093404Published

Before: Yegan

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Holding. The court held that the doctrine of res judicata bars a party from relitigating the division of a previously adjudicated asset under the guise of an 'omitted' asset claim. Consequently, the court affirmed the denial of the motion and imposed attorney fees for a frivolous appeal.

Issues

Whether the doctrine of res judicata bars a party from relitigating the division of a business asset as an 'omitted' asset after a prior unsuccessful challenge to the judgment.
Whether the husband's appeal of the trial court's order is frivolous, warranting the imposition of attorney fees.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Application of the res judicata principle compels affirmance of the trial court’s postjudgment order denying Raymond L. Mason’s (husband) motion to adjudicate an alleged “omitted” asset.”

“A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.”

Opinion

YEGAN, J.

Application of the res judicata principle compels affirmance of the trial court’s postjudgment order denying Raymond L. Mason’s (husband) motion to adjudicate an alleged “omitted” asset. We impose attorney

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fees for this frivolous appeal. (Fam. Code, § 271.) Hopefully, this published opinion will deter husband and others from bringing repetitive challenges to the trial court’s orders.

On March 26, 1993, husband and Marjorie Mason (wife) agreed to dissolve their marriage. Wife, age 65, operated a residential care facility, the Mason Home Care Facility, at home and closed the business due to her ill health. The parties, by stipulated judgment, allocated $1.6 million in separate and community property to husband and $574,000 in assets to wife. Husband was awarded the family residence. Wife received the business account ($6,774), a computer, and a station wagon. The stipulated judgment provided: “Husband shall pay to Wife as monthly spousal support the sum of $5,500 for the months of April, May, and June, 1993. . . . After that date, each of the parties irrevocably waives the right to receive spousal support from the other. . . .” Judgment was entered April 19, 1993.

Two months later, husband moved to set aside the judgment on the ground that wife had concealed income and was reopening the care facility. Husband claimed that she deceived him concerning the value of the business, her income, and her ability to reopen the business. The trial court denied the motion to set aside the judgment. The court found that wife “intended to close down the board and care [facility] which had been operated from their residence. In fact it was closed.”

Husband appealed. We affirmed in an unpublished opinion and held that husband could not set aside the property division solely because wife was industrious or had the good fortune to locate another place to operate a care facility.

Undaunted, husband filed an order to show cause to divide business goodwill. He relied upon Family Code section 2556 which, in pertinent part, 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.” (See also

In Re Marriage of Mason

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YEGAN, J.

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