Filed 6/24/20 Marriage of Wakil CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of HUSSAM and HEATHER WAKIL.

HUSSAM WAKIL,

Appellant,

v.

HEATHER PANGBORN,

Respondent.

D074867

(Super. Ct. No. D540219)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Rachel Cano, Judge. Reversed and remanded with directions.

Judith E. Klein for Appellant.

Stephen Temko for Respondent.

In a 2013 Marital Settlement Agreement (MSA), Hussam Wakil and Heather Wakil (now Pangborn) agreed to a division of their community property assets. The family home in Poway was then underwater (i.e. had no net value). The couple agreed in the MSA that Heather had the option of refinancing the loan in her own name or continuing to own the property with Hussam and splitting any equity after a sale. Five years after the judgment of dissolution, Hussam filed a motion asking the court to order the sale of the home because Heather had not yet refinanced the property. Heather filed a separate motion seeking to compel Hussam to execute a quitclaim deed, arguing that Hussam had obstructed her previous refinancing efforts.

In a consolidated proceeding, the trial court found the MSA was unambiguous: Heather had the option to refinance or sell, Hussam would share in any equity only if Heather elected to sell, and although the parties may not have contemplated that five years would pass or that the value of the home would increase, the MSA did not require Heather to refinance within any particular timeframe. The court also made a factual finding that Hussam’s conduct contributed to Heather’s inability to refinance sooner. Accordingly, it granted Heather’s request for order, required Hussam to transfer title, and directed Heather to refinance the property within 120 days.

We conclude that the trial court erred in finding that there was no timeframe within which Heather was required to refinance. Generally, where a contract does not specify a time for performance we presume the parties intended that performance would occur within a reasonable period of time. What amount of time is reasonable is a factual question for the trial court to resolve.

If Heather did not refinance within a reasonable time, the question becomes whether her delay is excused. The trial court found that Heather was unable to refinance in part because of Hussam’s obstruction. There is ample evidence to support a finding that Hussam prevented Heather from refinancing starting in January 2016 (two-and-a-half years after the judgment), but the record is unclear as to the effect of Hussam’s conduct before that time. Thus, if the trial court determines that a “reasonable time” for Heather to refinance was something short of two-and-a-half years, then it must evaluate whether Hussam’s conduct in that timeframe caused Heather’s delay in that period. Here again, causation presents a factual question for the trial court to decide in the first instance.

Because the trial court had no occasion to consider these questions, we reverse the order and remand the case to permit the trial court to make the necessary factual finding as to the “reasonable time” within which Heather was required to refinance under the MSA and, if necessary, whether Hussam prevented her from refinancing within that reasonable period so as to excuse her delay.

FACTUAL AND PROCEDURAL BACKGROUND

Hussam and Heather ended their 17-year marriage in 2013. The judgment of dissolution incorporated the parties’ MSA, which resolved issues concerning child support and custody, visitation, spousal support, debts, and property division. In a paragraph concerning tax consequences from the division, the parties expressed their intent “to equally partition and divide their community and co-owned property.” Paragraph 17 of the MSA detailed the division of the marital home:

“[T]he parties have agreed that the Wife shall be entitled to reside within said residence, paying all associated costs therein. [¶]

“The parties shall reserve the right to elect one of two options: [¶]

“a. The Wife is to refinance said residence into her own name, releasing the Husband from any and all financial obligation(s), or [¶]

“b. The Parties shall continue to own the residence together, until such time they jointly elect to sell the residence. [¶]

“c. If this option is elected then the Wife shall be held solely responsible for any and all costs of the residence, which would include any repairs, enhancements or remodels. [¶]

“d. The Wife shall also pay the utilities. [¶]

“e. If the parties continue to own the residence together then the Husband shall have continued access to the shed in the back yard until he has moved out all of his belongings. [¶]

“f. If the election has been for the Wife to keep the residence, and if it is that she is unable to refinance said residence, then at the time the residence is sold, if there is any equity profit from the sale, this profit shall be equally divide[d] by and between the parties. [¶]

“g. The parties further agree that if this option is selected that any income tax credit which would be derived from the community property residence shall also be equally divided each year by and between the parties. [¶]

“Until one of the aforementioned has occurred, the Court shall retain jurisdiction over the community residence.”

At the time of dissolution, the home was underwater, meaning the debt attached to the home exceeded its value.

Several years passed. Heather continued living in the home with the children. She did not refinance, and both she and Hussam remained on the title. The MSA required Hussam to pay delinquent taxes from 2009 to 2012. Hussam failed to do so, resulting in a $37,669 tax lien on the house in 2016. The Internal Revenue Service (IRS) and the Franchise Tax Board (FTB) granted Heather innocent spouse relief.

In early 2018, Hussam and Heather filed separate requests for orders (RFOs) concerning the marital home. Hussam’s RFO, filed in late January, sought an order compelling Heather to sell the home. He expressed his understanding that Heather “could have refinanced after the divorce, thus owning the residence on her own,” but now asked the court to order a refinance or sale with Hussam to receive an “equal equity share therein,” offset by amounts needed to cover the tax liens.

Heather filed her own RFO in February asking the court to order Hussam to transfer title to the home to her free and clear. She declared that Hussam had prevented her from refinancing. Suspecting he might not comply with a court order to sign and deliver a quitclaim deed, she asked the court to appoint an elisor should Hussam fail to comply. Heather lodged various exhibits, including IRS and FTB determinations that she was not at fault for the tax liens; e-mails showing Hussam obstructing refinancing attempts in 2016 and 2017; and Hussam’s community property declaration signed a few months before the MSA indicating that the fair market value of the house at that time was negative $20,000.

Heather filed a responsive declaration to Hussam’s motion, requesting consolidation of the two pending RFOs and indicating that Hussam “has refused to cooperate with my attempts to refinance in 2016 and 2017.” In a supplemental declaration, Heather stated that when the couple separated, “the house was underwater and had no equity, which is why [Hussam] and I agreed I could keep the house subject to being able to refinance it.” She noted that the MSA set no timeframe for refinancing and detailed Hussam’s efforts to obstruct her “numerous efforts to refinance the home.” According to Heather, she “would have qualified years ago had [Hussam] cooperated.”

Hussam also filed responsive declarations and exhibits. Conceding Heather was “partially correct” that Hussam did not cooperate with her refinancing attempts, Hussam explained that he would agree to a refinancing provided he received his equity share. The home had appreciated significantly, having an estimated value of $500,000. Any tax liens could be paid from his equity share following a sale or refinance. As Hussam put it, he believed he was entitled to his half equity share when his name was removed from the existing loan, “whether that occurs by refinance or sale,” whereas Heather believed he was not entitled to any equity share if she elected to refinance the home loan. He suggested that although the MSA may have been “poorly drafted or ambiguous,” the evidence did not support Heather’s interpretation.

Hussam lodged various communications in which Heather offered to compensate him for a quitclaim. In one text, Heather assured Hussam she would not take his half because they had bought the home together. But she told him, “I don’t have to give you money. I am not selling . . . I did it to help u it’s the fair thing to do.” In a 2016 e-mail, Hussam told Heather that while he had no objection to refinancing, Heather had to pay him his fair share. He urged her to sell instead, suggesting it would make more financial sense for both of them.

The court conducted a two-day hearing in July 2018. Because the parties stipulated to the admissibility of the submitted declarations and exhibits, the court took no testimony and only entertained argument from both sides. Claiming the house was bought during the marriage, Hussam asserted it would make little sense for the parties to agree that Heather could defeat Hussam’s community interest if she elected to refinance. And he maintained there was no evidence that she ever qualified for a refinance until recently, “only that she applied.”

The court disagreed, concluding Heather “has been wanting to refinance the house from the very beginning.” In its view, “there was no time limit” in the MSA within which Heather had to refinance. Any inequity in this outcome was balanced by the fact that Hussam only had to pay 36 months of spousal support in a long-term marriage. Reading the MSA as a whole, the court believed the parties had intended for Heather to remain in the house with the children. The house was upside down when the parties entered into the MSA, and Hussam “wanted nothing to do with the debt and obligation of the house.” Thus, they agreed that if Heather could refinance, the house would be hers, even if it was unclear how long it would take for her to qualify for refinancing. Indeed, the court suggested that the open-ended timeframe may have been based on Heather’s far lower income at dissolution—”[s]he clearly wasn’t making enough to qualify [for refinancing] at the time.” But whether or not she could immediately qualify, Heather always “elected to go with Option A” of refinancing rather than selling the home.

In short, the court found it was “limited to what the MSA says.” If Heather had refinanced right away, there would be only debt, no equity. “The only reason we’re here is now there’s value to the home because it’s taken her so long to be able to refinance. But again, there’s no time period laid out here as to when she could refinance.” At the conclusion of the hearing, the court pronounced its oral findings and order:

“Upon a reading of the MSA, specifically Section 17, it appears to the Court the wording is clear, explicit and unambiguous on its surface and expresses the intention of the parties when they signed it. The house had no value and was upside down [on the] mortgage to the tune of $20,000. It is clear the intention was for [Heather] to keep the house for her and the boys to live in on the condition that she could refinance the house and release the petitioner of all financial obligations related to the house. [¶]

“There was no timeframe set, which indicates the parties were not sure how long it would take to refinance, given [Heather’s] economic condition at the time, and that was filled out in the MSA regarding the spousal support and how much she was making at the time. Given the house had no actual value at the time of the MSA, it appears reasonable there would be no timeframe to accomplish the refinancing of the house. [¶]

“The only mention of equity profit being divided is referenced in the sale of the house when jointly elected as an option if [Heather] is unable to refinance the house. Nowhere does it state that if [Heather] refinances the house, any equity would be divided. Although it may not have been contemplated at the time of the MSA that this amount of time would pass and the value of the house would increase, the intent was still that [Heather] would remain in the house with the boys. [¶]

“However, the court finds that [Heather] has made diligent efforts to refinance the house since the MSA, and for various reasons, including [Hussam’s] insistence that the house be sold, she has not been successful. [Hussam] argues that this is not equitable since the house is still community property. Well, I agree that the house is currently community property. The parties have already agreed to the disposition of the assets. [¶]

“Given that five years have elapsed and the fact that I retained jurisdiction over the community property, I will order that [Heather] refinance the house within the next 120 days or else the house must be sold. [Hussam] is ordered to sign the quitclaim deed and any other document necessary in order for [Heather] to refinance the house. [¶]

“I will reserve jurisdiction to extend that time period if it is shown [Hussam] has done something to thwart refinancing of the house. I will also appoint an ad litem to sign the quitclaim deed or other transfer of title or other documents on behalf of [Hussam] if he fails to do so. [Heather] will be able to call Madam Clerk to pick up that order or consult with her regarding the various documents that need to be signed and included in that order, if we come to that point. In making the above findings, the Court considered the relevant law, the statutes that were in the points and authority and argument and used my discretion when allowed. The Court will enforce the terms of the MSA as they relate to the house.”

At the court’s direction, Heather prepared a formal order incorporating the court’s oral rulings. We construe Hussam’s premature notice of appeal as being taken from the subsequent entry of that formal order. (See In re Marriage of Wood (1983) 141 Cal.App.3d 671, 677−678.)

DISCUSSION

In his opening and reply briefs, Hussam argues the trial court erred in finding the MSA to be unambiguous. He asserts the court should have found it ambiguous and considered parol evidence in the form of texts and e-mails to construe the parties’ intent. Heather responds that the court construed the plain language of the MSA and presumably rejected the parole evidence as “not relevant to prove a meaning to which the language was reasonably susceptible.” She further argues that Family Code section 2550 “permits parties to enter into ‘lopsided’ agreements.”

Refocusing the issues on appeal, we requested supplemental briefing on the applicability of certain principles of contract law to the issues raised on appeal. As we explain, those principles require reversal for the court to make factual findings regarding: (1) whether Heather refinanced within a reasonable time under the MSA; and (2) if she did not, whether Hussam’s conduct caused her delay.

A. Heather Must Refinance Within a Reasonable Time Under the MSA.

Paragraph 17 of the MSA details two options for disposition of the marital home. The first option was for Heather to refinance the property and take title in her own name. If she did not refinance, the second option provided that the parties would continue to own the property together, and Hussam would receive his equity share upon a sale. The MSA does not provide an express timeframe within which Heather was required to complete a refinancing.

At the outset, we reject Heather’s suggestion that the MSA envisioned an unequal distribution of community property. Although such unequal distribution is allowed (see In re Marriage of Thorne and Raccina (2012) 203 Cal.App.4th 492, 504; Fam. Code, § 2550), there is no indication Heather and Hussam intended such a distribution here. To the contrary, paragraph 11(a) of the MSA provides: “By this Agreement, Husband and Wife intend to equally partition and divide their community and co-owned property.”

Heather argues paragraph 11(a) was mere “boilerplate,” designed to avoid adverse tax consequences to either party upon entry of judgment. She maintains that the provision “has minimal effect on interpretation of paragraph 17.” Although context certainly matters in interpreting contract provisions, we must construe the MSA “as a whole rather than separately considering its individual clauses.” (In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1013 (Hibbard).) An express statement that the parties intended an equal community property division provides at least some indication that an unequal distribution was not intended. And even overlooking paragraph 11(a), nothing in the MSA as a whole supports an inference that the parties meant to divide their community property unequally.

We accordingly turn to the merits of the trial court’s ruling. Relying on the plain language of paragraph 17, the court found there was “no timeframe to accomplish the refinancing of the house.” It believed this lack of a timeframe was reasonable given Heather’s economic condition—she made too little to qualify for a loan at the time of the MSA—and the fact that the house was underwater at the time of the MSA.

The question of when Heather was required to refinance under the MSA presents a question of contract interpretation. (Hibbard, supra, 212 Cal.App.4th at p. 1012.) “We construe the MSA under the rules governing the interpretation of contracts generally.” (Id. at p. 1013.) Our overriding goal is to give effect to the mutual intent of the parties when they entered into the settlement. (Ibid.) As with any other written agreement, the meaning of an MSA presents a question of law for the court unless the foundational extrinsic evidence is in conflict. (Medical Operations Management, Inc. v. National Health Laboratories, Inc. (1986) 176 Cal.App.3d 886, 891−892.)

In concluding that because no time was specified, Heather had unlimited time to refinance, the trial court erred. Where a contract specifies no particular time for performance of an act, “a reasonable time is allowed.” (Civ. Code, § 1657; see Wagner Constr. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 30 (Wagner); Bushansky v. Soon-Shiong (2018) 23 Cal.App.5th 1000, 1008; The McCaffrey Group, Inc. v. Superior Court (2014) 224 Cal.App.4th 1330, 1351; see also In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 990−991 [where a judgment of dissolution directed the family home ” ‘to be sold as expeditiously as possible for the best price reasonably obtainable,’ ” the wife breached her fiduciary duty through unreasonable “dilatory conduct” in repeatedly delaying the sale, resulting in a lower sale price].) Accordingly, if Heather opted to refinance the home loan, she needed to do so within a reasonable time.

Both parties accept this general framework but interpret the trial court’s ruling differently. According to Heather, the court considered various factors to determine that Heather did seek refinancing within a reasonable time. The house was underwater at dissolution, and between Heather’s monthly income of $900 and Hussam’s inconsistent support payments, she could not have refinanced when the MSA was signed. Once the market value of the home increased, Heather was in a position to refinance. She tried to refinance starting in 2014, but Hussam repeatedly refused to cooperate.

In Hussam’s view, the trial court overlooked basic contract interpretation rules in concluding there was no timeframe for Heather to refinance. Exploring what timeframe would be reasonable, he urges us to consider the MSA language, which although “far from clear” contemplates for “the refinancing and the signing of any quitclaim deeds to occur soon, not three to five years later.” Hussam claims it was unreasonable for him to remain obligated on the risk for five years without the potential for recouping his equity share of any increase in value when Heather finally refinanced.

Hussam has the better argument. ” ‘[W]hat constitutes a reasonable time is a question of fact, depending upon the situation of the parties, the nature of the transaction, and the facts of the particular case.’ ” (Wagner, supra, 41 Cal.4th at p. 30.) The trial court did not weigh these factors to conclude that five years was a reasonable amount of time for Heather to refinance. If it had, we would review that factual finding for substantial evidence. Instead, it concluded that the MSA’s plain language envisioned “no timeframe” within which Heather had to refinance if she chose that option. In other words, because the MSA did not specify a timeframe to refinance, the court concluded Heather had unlimited time to exercise that option. This was incorrect.

Because the determination of what constitutes reasonable time for performance is factual in nature (Wagner, supra, 41 Cal.4th at p. 30), we must remand to permit the trial court to make that assessment in the first instance. Heather is right that the house being underwater in 2013 is likely a relevant factor. Had the refinancing occurred immediately after the judgment, Heather would assume all the risk of an underwater home and Hussam would lose nothing. By the same measure, if refinancing occurred the moment the home was no longer underwater (e.g., a loan-to-value ratio of one-to-one), Hussam would still lose nothing. The equities begin to shift, however, as the house appreciates significantly due solely to market forces. As home values rise, it may no longer be reasonable to permit Heather to bide her time on refinancing while stringing Hussam along on the risk. Such an outcome seems inconsistent with the parties’ apparent intent to divide their community property equally in the MSA. Although it is up to the trial court to decide its relevance, the time at which the home was no longer underwater could be a factor to consider.

Other factors could also come into play. Heather earned only $900 at the time of the judgment. Although a reasonable time could not be pegged to her winning the lottery or scaling the corporate ladder, financial circumstances then known to the parties might warrant a finding that the MSA envisioned some period for Heather to get on her feet and decide whether to refinance or sell. In this regard, the court could consider the fact that under the MSA, Hussam was to pay Heather monthly spousal support for just three years, commencing in July 2012.

In noting these two factors, we merely suggest possible guideposts without weighing the evidence or limiting the trial court’s ability to take a holistic view of the parties and the facts. And the factors we mention are by no means intended to be an exhaustive list. The trial court remains in the best position to make a factual determination based ” ‘upon the situation of the parties, the nature of the transaction, and the facts of the particular case’ ” (Wagner, supra, 41 Cal.4th at p. 30) as to what period would be reasonable to require Heather to refinance under the MSA.

The only point of caution we offer is for the trial court to avoid conflating, as Heather does on appeal, the separate inquiries of whether she “sought refinancing within a reasonable time” and whether her failure to do so was excused. In the first instance, the court must weigh all the relevant factors to determine the reasonable period within which Heather was required to refinance under the MSA. Answering this question requires an assumption that the parties will engage in good faith, with Hussam cooperating in the refinancing process and fulfilling his support obligations. Only if Heather did not refinance within this time period does the court reach the second question—whether her delayed performance was excused by Hussam’s misconduct—to which we turn next.

B. Heather’s Failure to Refinance Within Such Reasonable Time Is Excused To the Extent Hussam’s Actions Caused Her Delay.

If the court determines on remand that Heather did not refinance within a reasonable period of time, it must address whether her delay is excused. As we explain, any failure by Heather to refinance within a reasonable time is excused to the extent Hussam’s conduct caused her delay.

It is well-established in contract law that “[a] promisor’s delay in performance is excused to the extent acts of the promisee caused such delay.” (Semas v. Bergman (1960) 178 Cal.App.2d 758, 762 (Semas); see Civ. Code, § 1511, subd. (1); Erich v. Granoff (1980) 109 Cal.App.3d 920, 930 [“hindrance of the other party’s performance operates to excuse that party’s nonperformance”]; Hibbs v. Allstate Ins. Co. (2011) 193 Cal.App.4th 809, 820 [where policy let insurer opt to repair the vehicle, insured’s prevention of the repair excused insurer’s nonperformance].) Bearing in mind that MSAs are construed according to contract principles (Hibbard, supra, 212 Cal.App.4th at p. 1013), Heather’s failure to refinance the home loan within a reasonable time is excused to the extent Hussam caused her delay.

The court made a factual finding that Heather “made diligent efforts to refinance the house since the MSA” but was unsuccessful for “various reasons, including [Hussam’s] insistence that the house be sold.” As we explain, if a reasonable time to refinance was January 2016 or later, the record readily supports a finding that Heather’s delay in refinancing was excused by Hussam’s failure to cooperate. Whether the same can be said if a reasonable time was something short of that is unclear on our record.

Judgment was entered in June 2013. The trial court evidently credited Heather’s declaration, which stated that in 2014, she “attempted to refinance the residence, but [Hussam] told [her] not to and demanded that [she] sell the residence.” A year later Heather “again resumed [her] efforts to refinance the loan on the residence and presented them to [Hussam].” Because Hussam had previously been uncooperative, she even offered to pay him if he would cooperate. But in January 2016, Hussam sent Heather an e-mail urging her to sell and cautioning, “Remember you can’t do anything without my approval.” He said the only way he would cooperate with a refinance was if Heather used the loan to ready the home for sale.

“By January 28, 2016, [Heather] had met with a bank and had qualified to assume the loan.” But when she asked Hussam to send information to her lender, he told her, “Don’t do anything. Don’t assume anything. Forget it for now.” In February 2016, Heather presented Hussam with another lending option, but he again failed to cooperate, and the application deadline expired. The parties went back and forth in 2016, with Heather rejecting Hussam’s demand to forgo child support payments if she wanted to proceed with refinancing. In 2017, Heather again qualified for refinancing, but Hussam refused to sign a quitclaim deed.

Requesting appointment of an elisor, Heather explained, “[a]s it stands, I am currently qualified to refinance the property subject to [Hussam’s] cooperation in same. The Judgment allows me the opportunity to refinance the property first before it is sold, which I have been trying to do for the past several years. The only reason I have not been able to refinance is because [Hussam] has effectively prevented me from doing so.”

The record readily permits a factual finding that starting in January 2016, Hussam prevented Heather from refinancing. Her declaration establishes that she qualified for a loan that month and twice thereafter, but each time Hussam’s refusal to cooperate prevented her from completing the process. It follows that to the extent it was reasonable for Heather to refinance as late as January 2016 (i.e., two-and-a-half years after the judgment), her delay in refinancing is excused.

But the same cannot be said on our record as to Heather’s attempts in 2014 and 2015. When in 2014 did Heather make her first attempt? What specific efforts did she take, and what precisely was Hussam’s response? It would be one thing for Hussam to suggest, “no, let’s wait and sell,” and quite another for him to say, “no way will I cooperate; I want to sell.” Heather’s statement that Hussam “told me not to” refinance and “demanded that I sell” is susceptible of different interpretations. Her proffer as to 2015 is similarly vague. Heather declared that in 2015, she “again resumed [her] efforts to refinance” and “presented them” to Hussam. When did this occur in 2015, and what efforts did Heather take? Does “presented them” refer to loan documents? Did Hussam respond in any manner before his January 2016 e-mail?

To avail of the contract defense that Hussam’s acts caused her delay, Heather must show that Hussam’s conduct prevented her from refinancing the loan. (Semas, supra, 178 Cal.App.2d at p. 762; Civ. Code, § 1511, subd. (1) [delayed performance is excused “by the following causes, to the extent to which they operate” (italics added)].) At the hearing, Hussam’s counsel argued there was no evidence that Heather qualified for a refinance until recently, “only that she applied.” The court said it was enough that Heather “has been wanting to refinance the house from the very beginning.” When counsel clarified that the court should consider “when she qualified, though,” the court replied that Heather had from the start “always gone with Option A of wanting to refinance the house.” (Italics added.)

To the extent the court meant that even if Heather took no affirmative steps it sufficed that she wanted to refinance, that is incorrect. If nothing Hussam did prevented Heather from timely refinancing, her delay would not be excused. That said, proof that Heather had qualified for a loan is not necessarily required. Construing the reasonable effect of statements and conduct of the parties may require a nuanced understanding of Hussam’s and Heather’s relationship and past course of dealing. And the dynamics between the parties on other issues—for example, child support or spousal support arrears—might have inhibited Heather from refinancing sooner. As with the determination of “reasonable time,” the causation question remains a factual one, resting on contextual factors the trial court is best positioned to evaluate.

Thus, we must send this matter back to the trial court to make factual findings in the first instance. If the “reasonable time” within which Heather was required to refinance was two-and-a-half years (or greater), then ample substantial evidence already credited by the court supports a finding that Hussam’s actions prevented her from refinancing in that time period. But if “reasonable time” was something short of two-and-a-half years, the court would need to consider what attempts Heather made to refinance in that period, what actions Hussam took in response, and whether Hussam’s actions as a whole caused her delay so as to excuse Heather’s failure to refinance within a reasonable time.

DISPOSITION

The January 9, 2019 order is reversed, and the matter is remanded for the trial court to make factual findings as to the reasonable time in which Heather was required to refinance the home loan under the MSA and (if necessary) whether Hussam’s efforts caused her inability to refinance in this period. In the interests of justice, the parties shall bear their own appellate costs.

DATO, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.