Marriage of Parafeink and Ehrgott CA4/2 (2016) · DecisionDepot
Marriage of Parafeink and Ehrgott CA4/2
California Court of Appeal May 27, 2016 No. E063028Unpublished
Filed 5/27/16 Marriage of Parafeink and Ehrgott CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of OXANA PARAFEINIK and STEVEN KIM EHRGOTT
OXANA PARAFEINIK, E063028 Appellant, (Super.Ct.No. FAMSS804960) v. OPINION JAY D. EHRGOTT, as Executor, etc.,
Respondent.
APPEAL from the Superior Court of San Bernardino County. Deborah Daniel,
court denied the Request for Order and Parafeinik has appealed the denial.
Parafeinik claims on appeal as follows: (1) fraudulent fair adversary hearing
prevented her from arguing to the court that Family Code section 2640 was fraudulently
used by Ehrgott’s attorney and was misapplied by the trial court; (2) Ehrgott’s attorney
presented false evidence that Family Code section 2640 applied to the Green Street
house; (3) the court’s judgment ordering elimination of Parafeinik’s joint tenant grant
deed rights with no consideration was a violation of Civil Code sections 1427 through
1428, 1549 through 1550, 1572, and 1596; (4) violation of California joint tenant equal
ownership property laws when the court awarded sole ownership to Ehrgott; (5) willful
and fraudulent misrepresentation and misuse of Family Code section 2640 by the trial
1 Ehrgott passed away on October 24, 2013. Jay D. Ehrgott was named the executor of his estate. When we refer to Ehrgott, it is in reference to Steven as an individual and the estate.
2 All further statutory references are to the Family Code unless otherwise indicated.
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court awarding Ehrgott the Green Street house, when a joint tenant grant deed had been
signed by Parafeinik and Ehrgott; (6) violation of Evidence Code sections 600 through
606 in denial of lawful presumption rebuttal by the court not hearing argument on her
Request for Order; and (7) her Request for Order was not barred by the statute of
limitations.
We conclude the lower court properly denied the Request for Order.
FACTUAL AND PROCEDURAL HISTORY
Parafeinik and Ehrgott were married on June 13, 2003. Prior to their marriage, in
May 1997, Ehrgott purchased the Green Street house. For the first time on appeal,
Parafeinik provides a grant deed that transferred the Green Street house from Ehrgott as
his sole property to Parafeinik, as a married woman and Ehrgott as a married man.
Thereafter, a grant deed dated November 13, 2003, provided that “OXANA
PARAFEINIK, A MARRIED WOMAN (MY WIFE) AND STEVE EHRGOTT, A
MARRIED MAN” granted the Green Street house to, “STEVE EHRGOTT AND
OXANA PARAFEINIK, HUSBAND AND WIFE AS JOINT TENANTS.”
On September 9, 2008, Parafeinik filed a petition for dissolution of marriage. The
judgment of dissolution was entered on February 17, 2011, after a short trial at which
both Ehrgott and Parafeinik testified. Both were represented by counsel. The parties
stipulated that the gross value of the Green Street house was $300,000.
The trial court found the date of marriage was June 13, 2003, and the date of
separation was August 29, 2008. The trial court determined that at the time the Green
Street house was transmuted from Ehrgott’s separate property to community property, the
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gross fair market value of the residence was $300,000. The trial court found, “The
amount of separate property debt was $139,833, and that the Respondent is entitled to
reimbursement under Family Code § 2640 in the amount of $160,065.” “The Court finds
that the current value continues to be $300,000, that the current encumbrance is $147,235
for a net equity in the property of $152,765. Since the Respondent was entitled to be
reimbursed $160,167, his reimbursement rights under Family Code [section] 2640 are
limited to the value of the asset and the Court awards this asset to him as his sole and
separate property at a net value of $0.”
The judgment was signed on February 17, 2011. The judgment was served on
March 1, 2011. No direct appeal was filed. Ehrgott died on October 24, 2013.
On January 16, 2015, Parafeinik filed her Request for Order. She sought relief
from the judgment entered on “2/11/2011.” She sought to set aside the judgment on the
ground of extrinsic fraud. She alleged the application was timely as no time limit was
applied to request relief from a judgment obtained by extrinsic fraud.
Parafeinik alleged it was explained to her that under section 2640 that Ehrgott was
entitled to reimbursement of $160,000. She alleged, “The property value was at
$300,000 and the liens were a sum of $139,833. Giving the net equity of $152,765. The
claim was that the respondent had the right to be awarded the sum of $160,000 per
Family Code section 2640 . . . , which was inappropriate for this case.” Parafeinik
alleged she was from Ukraine and was just learning English when she signed the
dissolution of marriage documents. Ehrgott’s counsel improperly explained the import of
section 2640. Parafeinik argued extrinsic fraud could be shown for almost any action.
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Parafeinik alleged in her statement of facts that on November 13, 2003, Ehrgott
filed a grant deed placing her as joint tenant on the Green Street house. She and Ehrgott
were represented by counsel during the dissolution proceedings. She alleged both
counsel had a conference outside the presence of her and Ehrgott. She was then told she
would be signing over her rights to the Green Street house. She understood the
agreement to be that Ehrgott would remain in the house, but when he moved out, they
would divide the interest equally as joint tenants.
Parafeinik alleged that in September 2014, she received a telephone call from a
bill collector regarding the passing of Ehrgott. She alleged, “On December 4th 2014 the
Petitioner first became aware of the willful fraud committed against her in which she was
entitled to her share of the equity in the ‘Real Property’ in question. In this case the
Petitioner was told by counsel that under Family Code section 2640 she was not entitled
to any of the equity in the [Green Street house]. However Oxana Prafienik [sic] became
a ‘Joint Tenant’ on the title upon her marriage to the respondent.”3
Parafeinik discovered she was still named as a joint tenant on the Green Street
house. She also discovered that based on Ehrgott’s last will and testament, he named his
parents as the heirs to the Green Street house. There had not been a distribution of the
assets.
Parafeinik submitted a declaration in which she claimed that soon after she and
Ehrgott were married, they signed a joint tenancy grant deed for the Green Street house.
At oral argument, Parafeinik disputed the court’s recitation of the facts. 3 However, these facts were taken directly from the Request for Order filed by Parafeinik.
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She also attached the dissolution of marriage judgment showing Ehrgott was awarded the
Green Street house as his sole and separate property.
Parafeinik also submitted another declaration that included citations to Family
Code sections 721, 850-853, and 2640. She also cited to Civil Code section 683.2 in
regards to fraud and deceit. Parafeinik indicated that on April 6, 2012, she was
“presented and compelled” to sign an Interspousal Transfer deed prepared by Ehrgott’s
attorney, Marie Braun. In May 2012 the Interspousal Transfer deed was rejected by the
county recorder. An Interspousal Transfer deed was filed in the Los Angeles County
Recorder’s office on December 19, 2014. Parafeinik again stated that she understood the
dissolution agreement to allow Ehrgott to remain living in the Green Street house until
his death or he was ready to move out. She did not understand that she was signing away
her real property rights. Parafeinik alleged that the Interspousal Transfer Deed filed with
the Los Angeles County Recorder had been altered and was null and void.
Parafeinik concluded, “By using Family Code Section 2640 the Respondent
through his counsel concealed the community asset (petitioners [sic] subject property
interest) by stating that this Code Section applied and the Petitioner was not able to
receive any consideration for her Joint Tenancy.” She also attached a copy of section
2640.
Parafeinik also attached Ehrgott’s trial brief. In that brief, Ehrgott asserted a
separate property interest in the Green Street house pursuant to section 2640. Ehrgott
listed the fair market value in 2002 was $232,000. On November 13, 2003, the fair
market value was $300,000 and the mortgage balance was $139,833. On April 24, 2010,
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the fair market value was $300,000 and the mortgage balance was $148,753. Ehrgott
insisted the equity in 2003 was his separate property interest. Ehrgott alleged the Green
Street residence should be transferred to him, and that Parafeinik be ordered to execute an
Interspousal Transfer Deed.
The original Interspousal Transfer Deed, which granted the Green Street house to
Ehrgott, was included as an exhibit. It was signed by Parafeinik on April 6, 2012. A
copy was recorded on December 19, 2014.
Ehrgott had filed a Petition to Probate the Estate of Steve Ehrgott. In that
proceeding, a petition for return of property to estate was filed by Ehrgott on December
24, 2014. According to the petition, Ehrgott died on October 24, 2013. Ehrgott stated
Parafeinik had executed an Affidavit of Death of Joint Tenant (By Surviving Spouse) and
filed it on October 20, 2014, in the probate proceedings. In that petition, she alleged she
was married to Ehrgott when he died. Parafeinik provided the November 2003 grant
deed but did not mention the dissolution judgment or the Interspousal Transfer Deed.
She filed a second Affidavit of Death of Joint Tenant no longer stating they were married
when Ehrgott died, but failed to acknowledge the dissolution of marriage judgment.
Ehrgott then discovered the Interspousal Transfer Deed that had been signed by
Parafeinik on April 6, 2012, had not been recorded because of a defect in the notary
acknowledgment. Ehrgott then filed the Interspousal Transfer Deed with the correct
notary acknowledgment on December 19, 2014. Ehrgott alleged Parafeinik was falsely
claiming title to the Green Street house and wanted it to be made part of the estate. The
Affidavits of Death of Joint Tenant filed by Parafeinik clouded title.
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Also made part of the record in this proceeding was a declaration from Braun,
Ehrgott’s attorney, who opposed the ex parte hearing on the Request for Order. Braun
alleged relief should be denied because the time limits for requesting relief under Code of
Civil Procedure section 473 (six months) and Family Code section 2122, subdivision (a)
through (f) (two years) had long since passed.
On March 2, 2015, Parafeinik submitted written oral argument. Parafeinik alleged
that Braun committed fraud by her misapplication of section 2640. She alleged that prior
to Ehrgott’s death, she had no reason to investigate the application of section 2640.
Parafeinik complained Braun did not make an attempt to explain section 2640 to her at
the time of the dissolution proceedings. Braun never showed her the Interspousal
Transfer Deed that she would be asked to sign at the time of the dissolution proceedings.
The Request for Order was heard on March 4, 2015. The court noted it had read
all of the documents submitted by Parafeinik and Ehrgott. The court noted, “Judgment in
this matter was entered in 2011 after a multi-day trial in 2010 when you were represented
by counsel. The Court made factual findings, litigated all the issues. [¶] The time for
appeal or relief from judgment has long passed. [¶] I find that both of your Requests for
Order are without merit, and there is absolutely no legal basis to grant either of your
requests.” The court also rejected that there was extrinsic fraud. The court found the
issues regarding the Green Street house were fully litigated and Parafeinik failed to file a
timely appeal. The Request for Order was denied; the judgment was signed on March 25,
2015.
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DISCUSSION
Parafeinik raises a myriad of claims in both her opening and reply briefs that she
did not raise below, and relies on evidence not before the lower court. The only
argument made below was that the trial court misinterpreted section 2640 in awarding the
Green Street house to Ehrgott as his sole property. Parafeinik claimed this was based on
extrinsic fraud; Ehrgott and Ehrgott’s counsel misadvised Parafeinik as to the import of
section 2640. This is the only issue that could properly be reviewed on appeal; however,
that claim could have been raised on direct appeal. Parafeinik did not file an appeal from
the dissolution of marriage judgment. The trial court properly concluded that the issue
was fully litigated and Parafeinik failed to file a timely appeal. Parafeinik addresses the
statute of limitations issue on appeal arguing she met the statute of limitations legal
criteria for extrinsic fraud and delayed discovery under section 2122, subdivision (a).
The Request for Order under section 2122 was untimely. Moreover, she could not reach
purely appellate issues by filing her Request for Order pursuant to section 2122.
Parafeinik cannot rely upon section 2122 to extend the time to seek relief from the
dissolution of marriage judgment. “Family Code sections 2121 and 2122 establish longer
time limitations of up to one year—and in cases of duress or mental incapacity, up to two
years—for bringing actions or motions to set aside or modify dissolution judgments.” (In
re Marriage of King (2000) 80 Cal.App.4th 92, 112 (King).) “Under section 2122, there
are six grounds to set aside a judgment, or portion thereof, including actual fraud, perjury,
duress, mental incapacity, mistake, and the failure to fully disclose the value of assets
under section 2100 et seq.” (In re Marriage of Georgiou and Leslie (2013) 218
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Cal.App.4th 561, 571.) Section 2122 provides, “The grounds and time limits for a
motion to set aside a judgment, or any part or parts thereof, are governed by this section
and shall be one of the following: [¶] (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.”
“[T]he statute of limitations under section 2122 accrues as of the date the plaintiff
either discovered or should have discovered the facts constituting the fraud or perjury,
not the date the plaintiff began to suspect the fraud or perjury.” (Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1149.) An order denying a motion to set aside a
judgment under section 2122 is reviewed under an abuse of discretion standard. (In re
Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
Here, the court noted several times the issues raised by Parafeinik were all based
on Parafeinik’s misinterpretation of section 2640, and that the application of section 2640
to this case was fully litigated at the time of the dissolution proceedings. All of
Parafeinik’s claims are based on her misunderstanding of section 2640, her insistence that
the misunderstanding was as a result of Braun’s misrepresentations, and that the trial
court misapplied section 2640. These issues were all part of the dissolution proceedings,
facts she was aware of in 2011.
Parafeinik claims she only became aware of the “fraud,” that her real property
rights to the Green Street house were being eliminated, during her investigation after
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Ehrgott’s death. This claim is disingenuous. The dissolution of marriage judgment was
clear that Ehrgott was receiving the Green Street house as his sole and separate property,
and Parafeinik does not dispute she was represented by counsel. Further, she signed the
Interspousal Transfer Deed on April 16, 2012, without objection. Although Parafeinik
claims she did not understand the judgment or that she signed away her interest in the
Green Street house, this simply is not evidence of extrinsic fraud. As a matter of law, the
fraud she alleges occurred during the dissolution proceedings in 2011; however, she did
not file her Request for Order until January 16, 2015. As such, the Request for Order
under section 2122 was untimely.
Moreover, even if we were to consider the Request for Order timely filed,
Parafeinik could not raise the claims as they were claims that could have been raised in a
direct appeal. It is well established that “‘compliance with the time for filing a notice of
appeal is mandatory and jurisdictional.’” (Conservatorship of Townsend (2014) 231
Cal.App.4th 691, 700.) “Under California Rules of Court, rule 2(a),[4] a notice of appeal
must be filed on or before the earliest of the following dates: (a) 60 days after the date of
mailing notice of entry of judgment; (b) 60 days after the date of service of notice of
entry of judgment by any party upon the party filing the notice of appeal; or (c) 180 days
after the date of entry of judgment.” (King, supra, 80 Cal.App.4th at p. 107, original fn.
omitted.)
4 California Rules of Court, rule 2(a) was renumbered to 8.104(1) effective January 1, 2007.
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Here, Parafeinik never filed a notice of appeal from the dissolution of marriage.
The claims of fraud raised below in her Request for Order all relied on matters involving
the dissolution of marriage proceedings. Parafeinik insisted that the court misapplied
section 2640 because Braun misrepresented the import of section 2640. The dissolution
of marriage judgment clearly stated that the Green Street house was being awarded to
Ehrgott as his sole and separate property pursuant to section 2640. Parafeinik also
admitted signing a Interspousal Transfer Deed on April 6, 2012. The claims made in the
Request for Order all involved the interpretation of section 2640, claims that could and
should have been raised on appeal.
Parafeinik cannot use a motion filed pursuant to section 2122 to revive these
appellate issues. As found by the court in King, “Even if we construe appellant’s motion
as having been brought under Family Code sections 2121 and 2122, these Family Code
provisions manifest no intention, express or implied, either to supersede the well-
established rules governing the timing of a notice of appeal or to extend that time.”
(King, supra, 80 Cal.App.4th at p. 113.) “In other words, even if appellant’s motion to
set aside were filed pursuant to Family Code section 2122, that fact would have no effect
on the jurisdictional time within which appellant would be required to file her notice of
appeal from the underlying judgment of dissolution. That time period remains governed
by the filing deadlines established by rules 2 and 3. Under those deadlines, appellant’s
purported appeal of the underlying dissolution order and judgment thereon is untimely.”
(Ibid.)
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As the court found in denying Parafeinik’s Request for Order, “The time for
appeal or relief from judgment has long passed.”
DISPOSITION
We affirm the court’s denial of Parafeinik’s Request for Order. Respondent is
awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the appellant's request to set aside a dissolution judgment based on extrinsic fraud was properly denied because the motion was untimely and the underlying issues were fully litigated in the original proceedings.
Issues
Whether the trial court properly denied the appellant's Request for Order seeking relief from a dissolution judgment based on extrinsic fraud.
Whether the appellant's claims regarding the misapplication of Family Code section 2640 were barred by the failure to file a timely direct appeal.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court properly concluded that the issue was fully litigated and Parafeinik failed to file a timely appeal.”
“The Request for Order under section 2122 was untimely.”
“The time for appeal or relief from judgment has long passed.”