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C.A. Defines What Counts as ‘Incapacity’ to Undo Judgment
Opinion Says Former Attorney’s Purported Depression, Other Ailments Did Not Justify Relief Under Family Code From Orders Entered in Divorce Case After She Failed to Participate in Proceedings
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal has held that a party petitioning to set aside a judgment entered in a divorce proceeding, under a Family Code section allowing such relief in the event of “mental incapacity,” must show a mental deficit that significantly impairs the ability to understand the nature or consequences of his or her actions or of the family law proceedings.
The court found that a former attorney who presented evidence of debilitating anxiety and depression established that she had a mental deficit but did not meet her burden of showing that she was incapable of understanding the consequences of failing to appear at hearings in the dissolution proceedings. During that time, she sold her home and two cars, paid taxes, and left her home for errands and special events.
Seeking relief from the judgment in her divorce proceedings was Susan Diamond, who made no appearances in the case after her attorney was relieved as counsel in July 2014 based on Diamond’s lack of communication and cooperation. Prior to the birth of her children, Diamond worked as a deputy attorney general in California for approximately three years before going into private practice; she has not worked as an attorney since 2000.
In May 2015, the matter went to trial and Los Angeles Superior Court Judge Colin P. Leis awarded full custody of the couple’s minor daughter to her ex-husband and ordered Diamond to pay $275,000 plus child support. In July 2016, her ex-husband filed a request to enforce the judgment and collect child support arrears.
Request for Relief
After an earlier appeal was unsuccessful, Diamond filed a request for relief in November 2017 based on Family Code §2122 which provides that a judgment may be set aside due to “mental incapacity” by a motion made within two years after its entry. In her supporting declaration, Diamond said:
“I had no idea that the Court was proceeding to trial in my case or that a default judgment would be entered against me at any time during 2015….I was without any legal representation and was medically incapable of appearing in Court due to poor health, duress and mental incapacity resulting from the abuse and domestic violence against me by my ex husband….”
She submitted a declaration from Dr. Barry Unger, an internist, who said she would have been “physically and mentally incapable of appearing in any type of court proceeding” during 2015 due to seizure and migraine disorders, which he said left her barely able to walk, and severe anxiety “caused by…her divorce case.”
A psychologist, Barry Halote, averred that “[[h]er] depression interfered with cognitive functioning, motivation, and ability to take care of activities of daily living.”
After a hearing on the petition, Los Angeles Superior Court Judge Lawrence P. Riff denied the §2122 request, finding that her “claims of mental incapacity (and duress) are likely not true or, at most, are extreme exaggerations of Susan’s non-incapacitating underlying anxiety and depression conditions.” Riff concluded:
“Susan was depressed, anxious, reclusive and isolated during the period of 2014 to May 2015. But the evidence does not lead the court to find, more likely than not, Susan suffered from mental incapacity….The court finds that during that interval, Susan understood the nature of the marital dissolution action she had commenced…and understood the consequences of not attending court appearances. The court finds that her depression and anxiety during that period did not result in her being incapable of rationally acting….”
Justice Gail Ruderman Feuer authored the opinion, filed Tuesday, affirming the denial. Acting Presiding Justice John L. Segal and Justice Natalie P. Stone joined in the opinion.
Undefined Term
Acknowledging that the Family Code does not define “mental incapacity,” Feuer found guidance in other statutes concerning an individual’s ability to make decisions regarding property, marriage, or legal actions. She wrote:
“The Due Process in Competence Determinations Act (Probate Code, section 810 et seq.; the Act) is particularly helpful as a ‘basic starting point for any mental capacity determination.’….The Act addresses the capacity of persons with a mental or physical disorder to take a range of actions, including ‘contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.’ ”
Under §810, she explained, “a determination that a person ‘suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.’ ”
She also looked to Code of Civil Procedure §372, which governs guardians ad litem, and defines “a person who lacks legal capacity to make decisions” as those “who lack[] capacity to understand the nature or consequences of the action or proceeding” or “who lack[] capacity to assist” in the preparation of a legal case.
The jurist declared:
“We conclude the most analogous circumstances to those under Family Code section 2122—to determine whether a person had the mental capacity to participate in and make decisions regarding a dissolution proceeding…are those governed by Probate Code section 810 and Code of Civil Procedure section 372….These statutes concern an individual’s ability to make decisions regarding the person’s assets, medical options, and whether to marry (the Probate Code) or to make decisions regarding an ongoing action or proceeding (the Code of Civil Procedure).”
Continuing, she said:
“Applying the standards for mental incapacity in the Probate and Civil Codes, we conclude a person lacks mental capacity within the meaning of section 2122 when the person suffers from a mental deficit that significantly impairs his or her ability to understand and appreciate the nature or consequences of his or her actions or of the family law proceeding.”
Deficit Versus Incapacity
Looking to the evidence provided by Diamond as to her purported incapacity, Feuer remarked:
“As a threshold matter, we defer to the family court’s finding that Susan ‘was likely depressed and anxious,’….But significantly, Susan undertook multiple actions during the relevant time period that required planning, organization, and communication with others, including selling her home and using the proceeds to pay her property taxes; obtaining a cashier’s check and using it to pay [her daughter’s] tuition; writing and cashing checks; and selling two cars, antique firearms, and personal items. Susan has not argued she was unable to understand these transactions or their consequences.”
She added:
“With respect to the dissolution trial, Susan testified she understood the dissolution action was proceeding, but she believed it was a proceeding for finalization of a settlement, not a trial. She also admitted she had received a copy of the judgment in the mail in early 2016…but she made the decision not to read it until months later. None of this evidence compels a finding that Susan was unable to understand and appreciate the consequences of her failure to participate in the dissolution proceeding, particularly in light of her years as a practicing attorney.”
Turning to the opinions of the doctors, the jurist reasoned:
“We recognize Dr. Unger testified Susan could not have appeared in court in 2014 and 2015 because she was not capable of ‘sustained attention,’ but that opinion does not have any bearing on Susan’s ability to communicate with her attorney, request an accommodation from the court (including a continuance), or understand the nature of the proceeding and that it was ongoing. The same is true for Dr. Halote’s opinion that Susan had severe deficits in ‘activities of daily living.’ That may have been true, but Dr. Halote did not testify that Susan would have been unable to participate in or understand the dissolution proceeding.”
The case is Marriage of Diamond, 2024 S.O.S. 3532.
Diamond is listed as “[n]ot eligible to practice law” on the State Bar website due to noncompliance with continuing education requirements. She suffered two suspensions—one in 2017 for failure to make child support payments and the other in 2019 for failure to pay State Bar dues.
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