Marriage of Terrell CA1/1

Filed 8/10/16 Marriage of Terrell CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of LILA TERRELL and FRED TERRELL.

LILA TERRELL, Plaintiff and Respondent, A143954 v. (Sonoma County FRED TERRELL, Super. Ct. No. SFL-61700) Defendant and Appellant.

This case arises out of the default judgment of marital dissolution taken by plaintiff Lila Terrell against Fred Terrell.1 After Lila gave Fred notice of entry of taking his default, Fred unsuccessfully moved to set the default aside. We affirm. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Following a long-term marriage, Lila filed a petition for dissolution on January 10, 2013. On January 14, 2013, Lila caused Fred to be served with a summons and the petition. In August 2013, Fred contacted attorney Gregory B. Orton, who had represented both him and Lila in an earlier legal matter. Orton contacted Lila’s attorney, asking her

1 For the sake of clarity, we refer to the parties by their given names. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 280, fn. 1.)

client to waive any potential conflict of interest should he undertake to represent Fred in the divorce proceedings. Lila declined to waive any conflict. The parties attempted mediation, attending sessions in November 2013 and January 2014. However, Fred failed to provide certain required financial documents, and no further sessions were ever scheduled. On July 14, 2014, Lila filed a request for default. That same day, the trial court filed and served a default against Fred. On July 25, 2014, the trial court filed and served an amended default against Fred. On August 22, 2014, Fred, through Orton, submitted a request to set aside the default under Code of Civil Procedure section 473, subdivision (b),2 based on his inadvertence, surprise, and excusable neglect. On September 5, 2014, the trial court entered the default judgment.3 On September 8, 2014, Fred served Lila with his motion to set aside. The pleadings include a declaration by Fred, acknowledging that he knew Lila had filed a petition for dissolution in January 2013. He stated that the parties had attempted to mediate the terms of a divorce while continuing living together with their two minor children until July 10, 2014, when he moved out of the family home. Even after he moved out, he “believed that [they] were still committed to mediation, if [they] were going to go forward at all.” However, four days after he moved out, he unexpectedly received a copy of Lila’s request to enter default. He alleged she “agreed to have my default taken, on advice of counsel, to obtain an advantage in subsequent negotiations.” In response, Lila disputed both the necessity of a warning prior to filing a request for default and the existence of any agreement to forgo court proceedings, declaring: “Fred did not request, nor did I agree, to refrain from filing anything with the court without discussing it with him first. In fact, I informed Fred that if he refused to engage with me, my only option would be seeking orders from the court.”