Marriage of Launer CA3

California Court of Appeal Oct 27, 2023 No. C097383Unpublished

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Holding. The court held that the trial court properly denied the husband's motion to set aside a default judgment, as the husband was estopped from challenging the marital settlement agreement's notarization after he explicitly authorized the correction of a missing page.

Issues

Whether a marital settlement agreement failed to comply with Family Code section 2338.5 due to the post-notarization addition of a missing page.
Whether the husband was estopped from challenging the validity of the default judgment based on the notarization process.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Whether the law allows for the correction of a completed notarial act, Husband is estopped from relying on counsel’s oversight to set aside the judgment”

“Husband reviewed Page 31 at least twice before he executed the MSA, he acknowledged Page 31 was missing at the time his signature was notarized, and he gave Wife’s counsel permission to add it back in before filing.”

Filed 10/27/23 Marriage of Launer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

In re the Marriage of KELLY R. and JON F. C097383 LAUNER.

KELLY R. LAUNER, (Super. Ct. No. STA-FL- DWC-2020-0003583) Respondent,

JON F. LAUNER,

Appellant.

Jon F. Launer (Husband) appeals from a court order denying his request to set aside a default judgment. He contends the trial court erred in denying his motion to set aside the default judgment because the Marital Settlement Agreement (MSA or Agreement), which was incorporated into the judgment, did not comply with Family Code, section 2338.5. We affirm the court’s order.

FACTS AND HISTORY OF THE PROCEEDINGS At the beginning of these dissolution proceedings, Kelly R. Launer’s (Wife) counsel advised Husband to retain his own attorney. Husband wanted to represent himself. Husband did not file a response to the petition for dissolution and the parties began negotiating an MSA. During the next several months, Husband actively participated in the negotiations. While he did not retain counsel, Husband did consult with a certified public accountant during the negotiation process. At Husband’s request, numerous changes were made to the MSA, resulting in five drafts before the Agreement was finalized. On April 9, 2021, Husband executed the MSA and had his signature notarized. On May 8, 2021, Wife’s counsel e-mailed Husband: “I received the signed MSA back from you and noticed that Page 31 (Exhibit B) was missing. Upon reviewing my email message of April 26 to you I see that somehow that page was missing from the PDFs that I sent you (the first PDF contained pages 1-30 and the second PDF was page 32.) I am not sure how that happened since that page had not changed from the last two drafts of the MSA that I sent you. “If you look at the message I sent you on April 14th you will see that the same Page 31 was included. Further, the same Exhibit B was also attached to the MSA that I sent you on March 30th. “I[f] you instruct me to correct this omission I will add Page 31 (Exhibit B – a copy of which is attached) to the document that you sent to me and thus save you the effort of having to re-sign the entire MSA. “Presuming that you are in agreement with this, I will provide you with a fully executed copy of the Agreement once signed it has been signed by my client and myself.

Marriage of Launer CA3

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JON F. LAUNER,

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