Filed 12/16/19 Marriage of Smith CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re the Marriage of HEATHER and TED SMITH.

HEATHER BUSSING,

Appellant,

v.

TED AUBREY SMITH,

Respondent.

A154081

(Sonoma County

Super. Ct. No. SFL31386)

This is an appeal from a court order requiring appellant Heather Bussing to pay respondent Ted Smith 50 percent of the college expenses he paid on behalf of their adult son A.S.

Bussing argues that the provision in the parties’ 2009 stipulated order and parenting plan (2009 stipulated order) requiring her to pay half of their adult son’s college expenses was superseded by the absence of any such term in their 2016 stipulated parenting plan (2016 stipulated order). Alternatively, she contends that if her obligation was not superseded, then her performance was excused. She also argues that she did not receive a fair hearing in the trial court.

We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Heather Bussing and Ted Aubrey Smith were divorced in 2006. They have two sons: A.S. and H.S.

Their September 6, 2006 judgment of marital dissolution incorporated an agreement entitled “Parenting Plan.” This Parenting Plan included a provision that the parties would share equally their children’s future college expenses.

On August 17, 2009, the trial court entered the 2009 stipulated order, which specified: “This Stipulation and Order modifies the Judgment for Dissolution of Marriage filed on September 6, 2006, and specifically supersedes the ‘Parenting Plan’ attached and incorporated therein.”

The 2009 stipulated order contained various provisions governing the children’s legal and physical custody, birthday and holiday schedules, school attendance and contact with extended family. It specified which party could claim A.S. or H.S. as a dependent for tax purposes and how the parties would share the children’s expenses for, among other things, health insurance, after-school daycare, school and sport activities. It also addressed “Organized Sports/Religious Activities,” “Counseling,” and “Minor’s Counsel Fees.” (Underscoring omitted.)

Paragraph 10 of the 2009 stipulated order contained the provision at issue: “Each parent agrees to pay one-half of each child’s reasonable undergraduate college expenses including tuition, books, housing, and living expenses. The parties will confer in advance to agree about what college each child attends and what constitutes a reasonable class load and reasonable expenses. If the parties cannot agree, then the court reserves jurisdiction to resolve any dispute.” A related provision (paragraph 9) stated that, “[t]o the extent practical, each parent shall arrange to pay his or her share of joint expenses directly to the provider. When one parent pays all of a joint expense, the other parent shall reimburse the parent who paid within 30 days of any request for reimbursement.”

In June 2016, the parties filed a “Stipulation and Order for Custody and/or Visitation of Children (Modification)” (Judicial Council form FL-355) to which was attached the 2016 stipulated order. Like the parties’ earlier agreement, the 2016 stipulated order addressed physical custody, visitation, school and scheduling issues, as well as certain “Other Expenses.” (Boldface omitted.) New provisions addressed such concerns as the children’s cell phones, discipline, and “Nondisparagement” of a parent. (Boldface omitted.) Unlike the 2009 stipulated order, the 2016 stipulated order did not address legal custody, college expenses, religious activities, counseling for the children, payment of joint expenses, tax deductions, contact with extended family, or minors’ counsel fees.

In October 2016, Smith e-mailed Bussing to inform her that A.S. had been accepted to two out-of-state universities. Smith also advised Bussing that A.S. would likely apply to several California schools in the upcoming weeks. Bussing did not respond.

Ultimately, A.S. enrolled at California State University, Chico (Chico State). Between July 14 and August 14, 2017, Smith sent Bussing four e-mails in which he identified specific expenses that he had incurred on A.S.’s behalf (for which he expected 50-percent reimbursement), as well as upcoming expenses that would need to be paid to secure his place at Chico State. Bussing again failed to respond to Smith regarding the issue of A.S.’s college expenses.

On or about August 17, 2017, A.S. began school at Chico State. Having failed to receive any substantive response from Bussing to his e-mail communications over the previous weeks regarding A.S.’s college expenses, Smith filed a request for order on September 7, 2017, requesting an order that Bussing reimburse him $3,240.11.

On March 13, 2018, after a contested hearing, the trial court granted Smith’s request. It ordered that “[e]ach party shall be required to pay one-half of [A.S.’s] undergraduate college expenses at California State University–Chico. Petitioner will reimburse Respondent $3,240.11 for expenses through the date the request was filed in payments of $300 per month beginning February 1, 2018. If payment is not made by the 5th of each month the entire remaining balance will become due and payable.”

On April 10, 2018, Bussing filed a timely notice of appeal.

DISCUSSION

Bussing contends: (1) there was no agreement to share the children’s college expenses because the 2016 stipulated order superseded the 2009 stipulated order and was silent as to higher education costs; (2) even if the provision in the 2009 stipulated order requiring the parties to share equally their children’s college expenses were enforceable, Bussing’s performance was excused due to Smith’s noncompliance with the provision that the parties confer in advance regarding what college the child would attend and what would constitute a reasonable expense; (3) the court had no jurisdiction to order her to pay the expenses of an adult son; and (4) she did not receive a fair hearing on Smith’s request for order because the trial court judge was biased against her.

Smith responds in relevant part: (1) the parties never discussed vacating, much less agreed to vacate, the college expenses provision in the 2009 stipulated order; (2) the 2016 stipulated order only modified or vacated those provisions in the 2009 stipulated order that were expressly addressed in the 2016 stipulated order and all other provisions in the 2009 stipulated order remained in effect; (3) even if Bussing intended to vacate the college expenses provision when she drafted the 2016 stipulated order, her unexpressed subjective intention is not enough to alter the parties’ earlier agreement; (4) there was substantial compliance with the “duty to confer” about college expenses; (5) the court had jurisdiction to enforce an agreement to pay an adult son’s expenses; and (6) there was no judicial bias.

We address the parties’ contentions in turn below.

I. The Parties’ Agreement to Share Their Children’s Reasonable College Expenses.

A. The 2009 and 2016 Stipulated Orders.

1. Relevant Principles of Contract Law

The parties agree the 2009 stipulated order and the 2016 stipulated order are to be construed under general principles of contract interpretation. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1221 [“Statutory rules of construction and interpretation are generally applicable to marital settlement agreements”].) They disagree, however, on which principles govern this case and how to interpret them.

“ ‘The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] . . . “The words of a contract are to be understood in their ordinary and popular sense.” ’ [Citation.]” (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518.) “Although ‘the intention of the parties is to be ascertained from the writing alone, if possible’ ([Civ. Code], § 1639), ‘[a] contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates’ (id., § 1647).” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524, first bracketed insertion added.) At the same time, a “contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.” (§ 1643.)

“ ‘California recognizes the objective theory of contracts. (E.g., Titan Group, Inc. v. Sonoma Valley County Sanitation Dist. (1985) 164 Cal.App.3d 1122, 1127 . . . [“It is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation.”]. . . .)’ [Citation.] [¶] Thus, ‘. . . evidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language.’ [Citation.] Rather, it is the outward manifestation or expression of assent that is controlling. [Citation.] With respect to the interpretation of a written settlement agreement, one court has stated that ‘The true, subjective, but unexpressed intent of a party is immaterial and irrelevant.’ [Citation.]” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 948.)

“A contract extends only to those things concerning which it appears that the parties intended to contract. ([Citation], citing Civ. Code, § 1648.) In construing a contract, the court’s function is to ascertain and declare what, in terms and substance, is contained in that contract, and not to insert what has been omitted. [Citation.] The court does not have the power to create for the parties a contract which they did not make, and it cannot insert in the contract language which one of the parties now wishes were there. [Citation.] Courts will not add a term about which a contract is silent.” (Levi Strauss & Co. v. Aetna Casualty & Surety Co. (1986) 184 Cal.App.3d 1479, 1486; see Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 7–8 [“ ‘ “However broad may be the terms of a contract, it extends only to those things . . . which it appears that the parties intended to contract” ’ ”].)

A single contract need not be viewed in isolation. Under section 1642, “[s]everal contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.” As was explained in Versaci v. Superior Court (2005) 127 Cal.App.4th 805:

“ ‘It is a familiar rule . . . that where several papers covering the same subject matter are executed by . . . the same parties . . . , all are to be considered together, and with the same effect as if all had been incorporated in one document.’ [Citation.] Civil Code section 1642 ‘is most frequently applied to writings executed contemporaneously, but it is likewise applicable to agreements executed by the parties at different times if the later document is in fact a part of the same transaction.’ [Citation.] ‘The contract need not recite that it “incorporates” another document,’ but ‘ “ ‘[f]or the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal . . . .’ ” ’ [Citation.]

“Whether a document is incorporated into the contract depends on the parties’ intent as it existed at the time of contracting. The parties’ intent must, in the first instance, be ascertained objectively from the contract language. [Citation.] . . . The applicability of Civil Code section 1642 is a question of fact for the trial court, and the appellate court will affirm the court’s resolution if it is supported by substantial evidence.” (Versaci v. Superior Court, supra, 127 Cal.App.4th at pp. 814–815.)

On appeal, the reviewing court independently construes the parties’ contract and any competent extrinsic evidence that is not in conflict. (Iqbal v. Ziadeh, supra, 10 Cal.App.5th at p. 8.) “ ‘When the competent extrinsic evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction [following a trial] will be upheld if it is supported by substantial evidence.’ ” (Ibid.)

Finally, section 1654 provides that any remaining uncertain language should be interpreted “most strongly against the party who caused the uncertainty to exist.” This is often paraphrased to state that any ambiguity shall be construed against the drafter, and is given particular force when the drafter is an attorney. (See, e.g., Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1370.) Here, both parties are attorneys and the 2016 stipulated order was drafted by Bussing.

2. The Parties’ Contentions

Bussing argues that the 2016 stipulated order alone governs the college expense issue. She asserts that “[w]hen the parties enter into a series of contracts and some provisions are inconsistent, the later contract prevails,” citing Estate of Ferrero (1956) 142 Cal.App.2d 473, 478 and Frangipani v. Boecker (1998) 64 Cal.App.4th 860, 863. In her view, because there is no provision in the 2016 stipulated order providing for the parties to pay college expenses, there is no basis for the trial court’s order that she pay half of A.S.’s expenses. She claims (without record citation) that the “evidence is clear that the reason that provision was taken out was because [she] no longer agreed to it.” Moreover, Bussing claims, Smith’s opposition to removing the college expenses provision for purposes of the 2016 stipulated order is meaningless because, “[i]n contract law, if one party does not agree to something, it is not part of the contract.”

Smith starts from the proposition that the 2009 stipulated order provides that the parties are to share equally the children’s reasonable college expenses. The 2016 stipulated order, which was presented to the court as a “ ‘modification’ ” to the 2009 stipulated order, addresses several issues relating to the parties’ parenting plan but is silent as to many items contained in the 2009 stipulated order, including the children’s college expenses. According to Smith, under these circumstances, any provision of the 2009 stipulated order not expressly modified (including the college expenses provision) remains in force.

3. Analysis

The trial court found that the college expense provision of the 2009 stipulated order remained part of the parties’ agreement, notwithstanding the 2016 modification. There is substantial evidence and law to support that.

As the trial court aptly noted, a court order does not automatically supersede all prior orders. Those earlier orders not in conflict with the modification remain in full force and effect.

When filing the 2016 stipulated order, Bussing attached the document to Judicial Council form FL-355. There, she checked the box marked “Modification” of “Stipulation and Order for Custody and/or Visitation of Children.” The trial court accepted Smith’s argument that the 2016 stipulated order modified the 2009 stipulated order rather than superseded it. That was a reasonable decision. (See Harm v. Frasher (1960) 181 Cal.App.2d 405, 414 [“ ‘separate written documents between the same parties and relating to the same subject-matter as indicated by the language contained therein, or satisfactorily proved by the circumstances under which they are executed, are to be construed together as one transaction’ ”].)

Indeed, when the parties executed the 2009 stipulated order they specifically included language stating that the 2009 stipulated order “supersedes the ‘Parenting Plan’ attached and incorporated [into the 2006 judgment].” The 2016 stipulated order—which Bussing drafted—contained no such language. Any ambiguity created by the lack of such language should be resolved in Smith’s favor. “ ‘[I]n cases of uncertainty not removed by [other] rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.’ (Civ. Code, § 1654; [citation].)” (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 834 (Kashmiri).)

Nonetheless, Bussing relies upon the rule that where “there is an inconsistency between two agreements, both of which are executed by all of the parties, the later supersedes the former,” citing Frangipani v. Boecker, supra, 64 Cal.App.4th 860 at p. 863. However, as the trial court implicitly found, the 2009 and 2016 stipulated orders are not inconsistent with respect to college expenses; one provides for sharing college expenses, the other does not address the matter.

As Smith notes, the same is true of several provisions of the 2009 stipulated order, including those relating to the children’s legal custody and the allocation of dependency exemptions. Those provisions necessarily remained in effect after the 2016 stipulated order was entered.

In addition, the 2009 stipulated order contains certain “procedural” terms that surely were meant to continue in full force and effect. For example, the 2009 stipulated order expressly provides that it supersedes the Parenting Plan in the 2006 judgment. Similarly, it requires any changes to the terms of the 2009 agreement to be “made in writing in the form of a Stipulation and Order signed by both parents and approved by the court.” If the 2016 stipulated order fully superseded the 2009 stipulated order, then those portions of the 2009 stipulated order would be vacated, leaving no contractual framework with respect to key issues arising out of the dissolution of the parties’ marriage. We doubt either party intended such an absurd result; nor should this court allow it. “The interpretation of a contract ‘must be fair and reasonable, not leading to absurd conclusions.’ [Citation.] ‘A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.’ (Civ. Code, § 1643.)” (Kashmiri, supra, 156 Cal.App.4th at p. 842.)

Still, Bussing claims that she “intentionally omitted provisions regarding college expenses” because her “finances were depleted and uncertain in 2016, a year before [A.S.] was starting college, [and therefore] she could not agree to pay half of the expenses.” Yet Bussing directs this court to no evidence that she communicated to Smith her alleged inability to pay half of A.S.’s expenses. Instead it appears Bussing simply refused to pay her share or to respond to Smith’s requests for reimbursement of the expenses he already paid. Bussing’s unexpressed intention or unilateral conduct does not operate to vacate paragraph 10 of the 2009 stipulated order which requires the parties to share their children’s college expenses. (Berman v. Bromberg, supra, 56 Cal.App.4th at p. 948.)

Thus, we affirm the trial court’s determination that the 2016 stipulated order did not supersede the 2009 stipulated order with respect to the sharing of college expenses.

B. Smith Did Not Materially Breach the 2009 Stipulated Order.

Bussing alternatively argues that even if the college expenses provision in the 2009 stipulated order is enforceable, she is nonetheless excused from complying with this provision due to Smith’s material breach. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277 [“When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, §§ 813, 814, p. 906 (Witkin) [‘Material failure of consideration discharges the other party’s duty . . .’]”]; see also § 1439 [“Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon himself; and must be able and offer to fulfill all conditions concurrent so imposed upon him on the like fulfillment by the other party”].)

Specifically, Bussing claims Smith failed to confer with her regarding what college A.S. would attend and what college expenses would be reasonable before seeking reimbursement from her. Bussing asserts this was a material breach that excuses her contractual duty to share these expenses.

The record does not support Bussing’s argument. Rather, it shows that between October 2016 and September 2017 Smith made numerous attempts to communicate with Bussing by e-mail regarding, initially, A.S.’s options for college and, later, his choice of Chico State. Smith also communicated to Bussing the expenses he had already incurred and those he would likely incur once A.S. began at Chico State. (See p. 4, ante.) It was Bussing, not Smith, who remained uncommunicative.

Bussing does not explain why she believes that it was solely Smith’s obligation to initiate communication on the subject. She, too, knew that her son was ready to enter college. At the hearing, Bussing informed the trial court that she had told A.S., “all along,” that she preferred he attend SRJC. Paragraph 10 of the 2009 stipulated order does not say which parent must initiate the communication “about what college each child attends . . . .” Both parties knew A.S. was about to enter some college. Either could have raised the subject with the other.

Bussing also contends there is no evidence in the record that A.S.’s college expenses were reasonable, but the record belies her contention. The evidence before the trial court reflected that A.S. was offered admission to Chico State as well as several out-of-state colleges, with Chico State, a four-year public university, offering the cost savings of in-state tuition, as well as some scholarship funds to offset his overall expenses. As the trial court noted, Chico State had the added benefit of providing greater academic opportunities than the junior college Bussing was proposing for A.S.

As of the hearing, Smith had incurred approximately $6,480 in expenses on A.S.’s behalf, and submitted receipts and invoices for these expenses, which covered such items as a campus bedding and bath set, desk lamp and textbooks, as well as various tuition expenses. This record adequately supported the finding by the trial court that A.S.’s college expenses to date had been reasonable and, thus, its order requiring Bussing to reimburse Smith $3,240.11.

C. The Trial Court Had Jurisdiction to Order Payment of College Expenses.

Bussing next argues that the trial court lacked jurisdiction to order her to pay expenses on behalf of her adult child. Bussing is, of course, correct that parents have no legal obligation to pay for the college education of an adult child. (In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 597.) However, this principle does not preclude a parent from making an agreement to pay for these expenses, which the trial court is then authorized to enforce in a marital dissolution proceeding. (Ibid.; see also Fam. Code, § 3587 [“Notwithstanding any other provision of law, the court has the authority to approve a stipulated agreement by the parents to pay for the support of an adult child or for the continuation of child support after a child attains the age of 18 years and to make a support order to effectuate the agreement”].) That is exactly what happened here—Bussing and Smith entered into a written agreement that each would pay an equal share of their children’s college expenses. The trial court had jurisdiction to enforce that agreement.

II. Judicial Bias.

Finally, Bussing argues that her right to a fair hearing was violated by the trial judge at the contested hearing due to his lack of impartiality toward her. We reject this argument on both procedural and substantive grounds.

As an initial matter, Bussing’s claim is not cognizable on appeal because under Code of Civil Procedure section 170.3, subdivision (d), a petition for writ of mandate is the exclusive method by which a party may seek review of a judicial disqualification claim. (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 672; see also People v. Barrera (1999) 70 Cal.App.4th 541, 552 [“parties who were aware of the basis for disqualification and chose to waive it are bound by the requirements governing review set forth in subdivision (d) of [Code of Civil Procedure] section 170.3. Absent a timely petition for a writ, the issue is not reviewable”].)

Moreover, while “ ‘a [party] may assert on appeal a claim of denial of the due process right to an impartial judge . . .’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 445, fn. 16), this rule does not excuse Bussing’s failure to raise this constitutional issue in the trial court as a prerequisite for preserving it on appeal. (See People v. Guerra (2006) 37 Cal.4th 1067, 1111 [“ ‘If a judge refuses or fails to disqualify [him- or herself], a party may seek the judge’s disqualification. The party must do so, however, “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification” ’ ”].)

Last, as our colleagues in the Second Appellate District aptly explained when rejecting a similar constitutional claim of judicial bias: “Even were we to address the merits of the constitutional claim, we would find it to be without merit on the ground that there is no evidence of judicial bias on this record. Appellant failed below to submit any declaration of prejudice or to make any oath establishing the basis for her claim of bias; no statement of disqualification was filed pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1).” (Roth v. Parker (1997) 57 Cal.App.4th 542, 549.)

These circumstances are also present here. Bussing not only failed to assert a due process claim in the trial court in a timely manner, on appeal she has failed to provide us with any evidence of bias aside from a transcript of an exchange she had with the trial court judge during the hearing on Smith’s motion to enforce the college expenses provision.

It is well established that a judge’s mere anger or annoyance toward a litigant does not, without more, establish bias or partiality. (Liteky v. United States (1994) 510 U.S. 540, 555.) In particular, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. . . . Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as [court] judges, sometimes display.” (Id. at pp. 555–556.) Bussing’s evidentiary showing in support of her judicial bias claim does not meet this standard for reversal.

DISPOSITION

The trial court order of March 13, 2018, is affirmed.

 

_________________________

Goode, J.*

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Fujisaki, J.

A154081/In re Marriage of Smith