Filed 4/9/20 Marriage of Hathaway CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of MARGARETTA and BRUCE HATHAWAY.

B291529

Los Angeles County

Super. Ct. No. PD062151
MARGARETTA HATHAWAY,

Respondent,

v.

BRUCE HATHAWAY,

Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan Lopez-Giss, Judge. Affirmed.

Law Offices of James T. Neavitt, James T. Neavitt and Karanjit K. Brar for Appellant.

Law Office of Donald S. Sherwyn and Donald S. Sherwyn for Respondent.

_________________________

Bruce Hathaway appeals from the final judgment ending his 38-year marriage to Margaretta Hathaway, contending it failed to include the parties’ agreement for the division of personal property. We affirm.

BACKGROUND

Bruce and Margaretta (we use first names for the sake of clarity, intending no disrespect) married in 1977. Margaretta filed a petition for dissolution on March 21, 2016.

A year later, on March 20, 2017, Bruce and Margaretta signed and filed a settlement agreement on court form FAM 024(A) (“Stipulation/Settlement Agreement”). Under “750. OTHER ORDERS,” the form stated: “Respondent will give Petitioner a list of all furniture and furnishings he wants. If Petitioner does not agree, then it will be subject to a referee to divide the remainder of the property.” Written above the procedure, however, was “750 is not yet agreed upon.”

In her trial brief, Margaretta stated: “The parties have disputes over several personal property items,” and she requested that the personal property be divided as shown in an attached exhibit and chart (the exhibit and chart are not in the record on appeal), and based on Margaretta’s forthcoming trial testimony. Bruce’s trial brief recited the language from the March 2017 FAM 024(A) form, under the heading “Order of March 20, 2017,” but also suggested that Margaretta receive the home furniture and furnishings except for those items that were his separate property. A joint issues statement filed on August 21, 2017 (signed by counsel for Bruce only) included as one of the major issues for trial “value of home furniture and furnishings and sale or award to a particular party and various other personal property.”

1. August 21, 2017 trial

At the trial on August 21, 2017, the trial court stated that Bruce had been so uncooperative that “I’m inclined to give the petitioner total rights without you signing for anything.” The court stated: “The value of the home furniture, stick it on the front lawn. Divide it.” Bruce’s counsel replied: “You already have an order. The order is that my client gets the list. If she doesn’t approve, you’ve appointed a referee. The parties pay for it.” Counsel promised to provide a list of personal property by September 1.

On second call, the parties returned with a new 10-page form FAM 024(A). The heading “Settlement Agreement” was crossed out, and handwritten above was “Orders made by the court at the time of the trial date.” On page 4, the form stated: “Personal property/furniture/furnishings: Respondent shall provide a list of items he is requesting for an equal division by Sept. 1st, 2017 (the list to be provided to petitioner’s counsel). If he fails to do so, all items belong to Petitioner. If they do not agree on the items listed (after meeting & conferring) the items shall be submitted to Paulette Ghoribian for determination (retainer to be paid from trust account of Respondent’s counsel).” Margaretta was to comply with the same procedure.

After discussing the disposition of other property, the trial court stated: “You’ve signed this agreement. I’m now signing it. It’s a court order.” Bruce’s counsel rejoined: “The order is not an agreement. . . . It’s an order. It’s not an agreement.” The court then signed a judgment of dissolution on marital status only, reserving jurisdiction over all other issues, and ordered Bruce’s counsel to draft a judgment on all other issues.

2. April 12, 2018 Order to Show Cause

At a hearing on April 12, 2018, after a number of continuances, with Bruce absent and another attorney appearing for his counsel of record, the trial court took off calendar the order to show cause regarding entry of judgment. The court inquired about the judgment on reserved issues, and Margaretta’s counsel stated the parties were still working on the judgment. The court set a trial on the reserved issues. Margaretta’s counsel requested time to review the orders issued on the day of the August 21, 2017 trial “because that judgment was prepared immediately . . . . [and] at this point there’s been so much back and forth. . . . It’s just that we have not been able to get [Bruce and his counsel] in a room.” The trial court ordered Margaretta’s counsel to prepare a proposed judgment on reserved issues, to be served and filed 20 days before a short cause trial set for May 17, 2018.

On May 11, Bruce’s counsel filed a trial brief agreeing with the proposed judgment, except that it did not include all the items in Bruce’s list of personal property. Bruce requested that Margaretta amend the judgment “pursuant to the Court’s order of August 21, 2017” to state that the parties had exchanged lists and did not reach an agreement, and a neutral arbiter (to be selected by the parties’ counsel and paid from Bruce’s trust account) would make a reasonably equal division.

3. May 17, 2018 trial

With the parties’ counsel of record present and both parties sworn in, the trial court stated: “I have a proposed judgment in front of me, but there’s an issue that you need to be tweaked, I guess, by the court.” Margaretta’s proposed judgment assigned her the personal property in her possession, with the exception of seven listed items, which she proposed be awarded to Bruce (a foldable ladder, half of a record collection, pictures gifted by Bruce’s parents, a shotgun, any personal items belonging to Bruce, an industrial sewing machine, and half of a license plate collection). Counsel for Bruce explained “we have two different positions” on how to divide the personal property. Margaretta’s counsel stated: “At the time of the August 21st trial, the personal property wasn’t resolved at all.” The stipulation provided the parties would exchange lists and try to work it out through counsel, and “if it couldn’t be resolved that it would go to a third party attorney to act as an arbitrator.” Margaretta had already given Bruce most of the items on his list, “she doesn’t want to spend any more fees dividing personal property,” and she was willing to give him the remaining items in her possession. Bruce was simply dragging out the proceedings to hold on to Margaretta.

Bruce’s counsel protested that the parties had not been able to resolve everything on their respective lists, and “[w]hat [Bruce] wants to do is just let’s get it to the arbitrator.” The court asked how much the listed items were worth, and Bruce stated: “About $15,000.” The court disagreed: “I think it’s a pile of garbage. All of this is a pile of garbage. It’s not worth it. It’s not worth the fight. An arbitrator is going to probably cost you $5,000,” and the list was worth at most $2,000. “Give you a thousand dollars and you both go home. That’s my order.”

The court continued: “You know what, Mrs. Hathaway, I believe you’re being held up. I believe Mr. Hathaway is incredibly unreasonable. I believe that Mr. Hathaway is basically playing a game with you because that’s his power trip with you. . . . Every single thing on this list is just his way of playing games with you.” The court awarded the shotgun to Bruce, but otherwise each party would keep what was in their possession and Margaretta would pay Bruce $1,000. “That’s it. I had to make a decision and I did. It’s not subject to discussion.” Bruce’s counsel protested that existing orders provided for an arbitrator, and over Bruce’s continuing objections the court responded: “Excuse me. It hasn’t been enforced in over six months. At this point in time the court is making a determination that for the best interest of this estate, which I have the obligation to control and to make sure that the parties don’t expend unnecessary funds, the items that I’ve reviewed, at this point in time, the respondent gets the guns, the petitioner keeps the license plates and she’s going to give him a thousand dollars.”

The trial court entered a final stipulated judgment on reserved issues, with Bruce noting his objection to the section dividing personal property, furniture, and furnishings. That section as entered stated that Margaretta and Bruce each would receive the personal property in her or his possession, Bruce would receive all the guns, and Margaretta would pay Bruce $1,000 from her share of trust funds. Bruce filed this timely appeal.

DISCUSSION

Bruce contends the trial court failed to incorporate in the final judgment the parties’ earlier agreement that an arbitrator would divide the remaining personal property, and the judgment as entered was arbitrary and denied him due process.

Our detailed recitation of the facts shows Bruce’s appeal has no merit. Margaretta filed her petition in 2016. A year later, in March 2017, she and Bruce filed a settlement agreement that stated they had not yet agreed on the procedure for dividing personal property. Margaretta and Bruce’s trial briefs differed on how to divide the property. At trial in August 2017, the court expressed frustration with Bruce’s lack of cooperation. Bruce and Margaretta conferred and returned to court with a document titled “Orders made by the court at the time of the trial date,” stating that Bruce and Margaretta would exchange lists by September 1, and if either did not provide a list by that date all the personal property would go to the other. If either disputed the other’s list, a named individual to be paid by the trust would determine the division. The court signed a judgment of dissolution on marital status only, reserving jurisdiction over all other issues, with Bruce’s counsel to draft a judgment on the reserved issues.

Eight months later, in April 2018, the court ordered Margaretta to prepare a proposed judgment after a hearing at which Bruce did not appear, and Margaretta’s counsel explained they had been unable to get Bruce and his counsel in a room to negotiate. In May 2018, Bruce’s counsel objected to the proposed judgment’s list of personal property, and requested Margaretta amend the judgment to provide that the parties had not reached agreement and an arbitrator to be selected by both counsel would make a reasonably equal division.

Finally, at trial on May 17, 2018, the court acknowledged the provision for dividing personal property remained to be “tweaked.” Margaretta’s proposed judgment gave Bruce seven items remaining from his list, and did not require an arbitrator. Bruce stated the items listed as remaining were worth $15,000, and continued to assert that the list had to go to an arbitrator. The court disbelieved his estimate and noted that an arbitrator would cost more than twice the maximum value of the remaining personal property ($2,000). The court stated that Margaretta was “being held up” and Bruce was “incredibly unreasonable.” Awarding the remaining gun to Bruce, the court ruled that each party would keep what was in his or her possession and Margaretta would pay Bruce $1,000. “I had to make a decision and I did. It’s not subject to discussion.” Over Bruce’s continued protests, the court entered a final stipulated judgment, with Bruce objecting to the personal property division.

In the face of these facts, Bruce nevertheless argues the trial court could not include in its judgment any procedure for dividing the personal property other than one requiring an arbitrator, because he and Margaretta had agreed to that procedure and it could not be altered by an order of the court. This ignores that the first iteration of the procedure followed a notation that it had not been agreed to by the parties; the second iteration was not entered into the court’s judgment, which was on marital status only; and at the May 17, 2018 trial, the court expressly stated the personal property division was the remaining issue, and determined the fairest result was for each party to keep the personal property in his or her possession, with Bruce also to receive a gun and $1,000 from Margaretta.

If the parties stipulate to settle the case in a writing signed outside the presence of the court, the court may enter judgment incorporating the terms of the settlement agreement. (Code Civ. Proc., § 664.6; In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 898.) California law favors marital settlement agreements, and if the parties come to an agreement on the division of their property, courts generally will not disturb the agreement, except on equitable grounds. (In re Marriage of Egedi (2001) 88 Cal.App.4th 17, 22.) “Family law cases ‘are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity,’ ” and “ ‘ “[e]quity . . . will assert itself in those situations where right and justice would be defeated but for its intervention.” [Citation.]’ ” (Id. at pp. 22-23.) The court can invalidate an agreement if it finds the agreement is inequitable, even if not induced by fraud or compulsion. (Ibid.) When the trial court exercises its equity power to set aside an unfair agreement, we review only for an abuse of discretion, which we will find if the court exceeded the bounds of reason under the circumstances. (Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)

Bruce and Margaretta dispute whether they reached an agreement on the personal property division, but that doesn’t matter. Even if we treat Bruce’s preferred procedure for dividing the personal property as part of a marital settlement agreement, the trial court had the power to disregard it as inequitable to Margaretta. That is what the court did. Finding that Bruce was insisting on an inefficient and expensive procedure for dividing the remaining personal property, and that he did so only to continue to exercise power over Margaretta, the court declined to include the procedure in the judgment. No abuse of discretion occurred. It was not outside the bounds of reason to conclude that a ladder, half of record and license plate collections, pictures, unspecified personal items, and an industrial sewing machine were not worth $15,000, as Bruce alleged without proof, and instead were worth less than the cost of hiring an arbitrator to divide them between Bruce and Margaretta. The record supports the court’s conclusion that Bruce’s insistence on an arbitrator to divide what remained of the personal property was part of his strategy of obstruction and delay. The court acted within its equitable power.

Margaretta filed a motion for appellate sanctions of at least $30,884.50 in attorney fees. Although Bruce’s appeal has no merit, we do not award sanctions on appeal.

DISPOSITION

The judgment is affirmed. Costs are awarded to Margaretta Hathaway.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J. DHANIDINA, J.