Filed 10/23/19 Marriage of Taber CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of RALPH J. and ALENE M. TABER.

RALPH J. TABER,

Respondent,

v.

ALENE M. TABER,

Appellant.

G057081

(Super. Ct. No. 15D003787)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Salvador Sarmiento, Judge. Affirmed in part, reversed in part, and remanded.

Alene M. Taber, in pro. per., for Appellant.

Holstein, Taylor and Unitt, Brian C. Unitt; Howington & Associates and Joseph W. Howington for Respondent.

* * *

INTRODUCTION

Following the entry of a stipulated judgment in a marital dissolution proceeding, the former wife, Alene M. Taber, filed a motion requesting the trial court to award her sanctions against her former husband, Ralph J. Taber, and order him to comply with his obligations under the terms of the stipulated judgment. The trial court denied the motion, concluding it had no jurisdiction to award the requested relief. We affirm in part, reverse in part, and remand for further proceedings.

Although the stipulated judgment provided that the parties would bear their own attorney fees, the request for sanctions due to Ralph’s and his counsel’s obstructionist and improper conduct for six months after the marital settlement agreement was signed but before it was entered as a stipulated judgment was an issue that had properly been placed before the trial court. We reverse this portion of the order and remand for consideration of this issue.

The request for sanctions due to the alleged concealment and destruction of a piece of community property was also an issue that was properly before the trial court. We also reverse this portion of the order and remand for consideration of this issue.

The trial court did not err in refusing to consider Alene’s requests to set new valuation dates and to change the payment terms of a loan. We affirm these portions of the order. However, the terms of the stipulated judgment provide Alene with the ability to seek recourse from the trial court and to seek an award of costs and attorney fees. Our disposition is without prejudice to Alene’s ability to seek such relief.

Finally, the trial court erred by failing to address the issue of Ralph’s failure to transfer a military pension. We reverse this portion of the order and remand for consideration of this issue.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

I.

THE PARTIES’ DISSOLUTION PROCEEDING AND STIPULATED JUDGMENT

Alene and Ralph were married in May 1989 and separated in May 2015. At the time of their separation they had no minor children. The parties entered into a stipulation for dissolution of their marriage and division of their community property, which was entered as a judgment of the court on April 5, 2018.

The relevant portions of the stipulated judgment read as follows:

Paragraph 3(o): “It is the mutual wish and desire of both Petitioner and Respondent to effect a full, complete and final settlement of all their respective property interests, future and present, and, except as otherwise specifically set forth herein, to adjust and determine all legal obligations of any nature which may exist with respect to one another and by reason of their marriage, and to fully and completely resolve all issues relating to spousal support, division of community property, confirmation of separate property, reimbursement claims and attorneys’ and experts’ fees and costs without further litigation.”

Paragraph 3(v): “The Court finds that each party has entered into this Stipulated Judgement voluntarily and free of any fraud, duress, coercion, misrepresentation or undue influence that he/she is aware of or has any information about.”

Paragraph K-1: “The parties knowingly and voluntarily waive the right to have this specific matter proceed to trial, the right to call and confront witnesses, the right to conduct further discovery, and the right to conduct valuation and/or appraisals of property interests. In doing so, each of the parties hereby acknowledges and agrees to the division of property and orders relating to spousal support and fees and costs as set forth in this Stipulated Judgment are fair and equitable, acknowledging also should they proceed with trial, the Court’s decision on these issues may be more or less favorable as a result.”

Paragraph CC-1: “Each party shall be solely responsible for the payment of his/her own attorneys’ fees and costs.”

Paragraph CC-4: “Respondent/Alene hereby waives the right to a contribution to her attorneys’ fees and costs from Petitioner/Ralph. Respondent/Alene knowingly, intelligently, and voluntarily waives all right to receive a contribution to her attorneys’ fees and costs. Respondent/Alene shall be solely responsible for her own attorney fees and costs and expert fees and costs incurred in connection with the negotiation, preparation and execution of this Stipulated Judgment and in connection with this Dissolution of Marriage action.”

Paragraph CC-5: “Petitioner/Ralph shall not be liable to Respondent/Alene for her attorney fees and costs and expert fees and costs. Respondent/Alene shall hold Petitioner/Ralph harmless against any claim arising from the nonpayment of such fees and costs.”

Paragraph OO-1: “By signing his/her approval of this Stipulated Judgment, each party has represented and acknowledged that he/she has read and understands the terms and provisions contained herein, that he/she signed this Stipulated Judgment voluntarily and without undue influence, fraud, coercion or misrepresentation, and that he/she is fully aware of the contents and legal effects of this Stipulated Judgment.”

II.

ALENE’S MOTION FOR SANCTIONS

On April 26, 2018, three weeks after the stipulated judgment was entered, Alene, no longer represented by counsel, filed a motion for sanctions against Ralph, and to modify the stipulated judgment. Alene filed a supplemental memorandum of points and authorities and a supplemental declaration on May 4.

Specifically, Alene’s postjudgment motion for sanctions requested the following relief:

1. $48,230.38 in sanctions against Ralph for the unnecessary attorney fees Alene incurred “as a result of Ralph’s nonresponsive and obstructionist behavior.”

2. $437,653.64 in sanctions against Ralph for allowing a life insurance policy to lapse, breaching his fiduciary duties, and concealing and/or destroying a community property asset.

3. Modification of the stipulated judgment to reflect a different valuation date for the parties’ 401K and retirement plans.

4. Modification of the stipulated judgment to require Ralph to pay reimbursement payments for their daughter’s college loans directly to Alene instead of to the lender.

Ralph filed opposition, and the trial court conducted a hearing on Alene’s motion. The court found that all of the acts alleged by Alene had occurred before the stipulated judgment was entered, and the court did not have the authority to modify the judgment. Therefore, the court denied the motion.

DISCUSSION

I.

IS THERE AN APPEALABLE ORDER?

Alene contends that the order denying her motion for sanctions is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2), which provides that an appeal may be taken from “an order made after a judgment made appealable by paragraph (1).” Thus, only if the stipulated judgment would itself be appealable can the order denying Alene’s motion for sanctions be appealable.

A stipulated or consent judgment is “a judgment entered by a court under the authority of, and in accordance with, the contractual agreement of the parties [citation], intended to settle their dispute fully and finally.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400.) The general rule is that a party may not appeal from a consent judgment. (Ibid.)

A postjudgment order following a nonappealable judgment is itself nonappealable. “Because the consent judgment is nonappealable, it is not ‘a judgment made appealable’ by section 904.1, subdivision (a)(1). Thus, section 904.1, subdivision (a)(2), which requires such an appealable judgment, has no application to the orders entered in this case, and defendant provides no other statutory basis for its asserted right of appeal. ‘“[N]o appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law . . . .” [Citation.] Section 904.1 states that an appeal may be taken from a judgment, except from among other things, an interlocutory judgment. Therefore, final judgments, “as ‘developed by the case law’” [citation], are appealable, but “[i]t is the substance and effect of the court’s order or judgment and not the label” which determines whether the party can appeal [citation].’ [Citation.] ‘Unless expressly authorized by law an appeal does not lie from an interlocutory judgment.’” (City of Gardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595, 601.)

Alene’s motion was, at least in part, a motion to enforce the terms of the stipulated judgment. The stipulated judgment provided for such enforcement actions by reserving jurisdiction, by providing for remedies in the event necessary actions were not taken to effectuate the agreements contained in the stipulated judgment, and by authorizing the trial court to award costs and attorney fees to any party required to seek court action to enforce the terms of the stipulated judgment. The inclusion of these provisions requires us to conclude that the trial court’s postjudgment order is appealable, despite the fact the underlying judgment was a stipulated judgment.

In any event, this court has the discretion to construe Alene’s appeal as a petition for a writ of mandate from the order denying her request for sanctions, and we would choose to exercise that discretion in this case even if the postjudgment order was not appealable. (Black Diamond Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114 115.) This case meets the criteria the California Supreme Court has established for treating an appeal from a nonappealable order as a petition for a peremptory writ of mandate. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745 747.) We would do so because the briefs and the record before us contain, in substance, all the elements required for a writ of mandate proceeding; there are extraordinary circumstances justifying the exercise of this court’s discretionary power; and real parties in interest will suffer no prejudice if we address the merits of the parties’ dispute. (Ibid.)

II.

REQUEST FOR SANCTIONS/ATTORNEY FEES DUE TO OBSTRUCTIONIST CONDUCT

Alene’s request for sanctions in the form of attorney fees involves only conduct by Ralph that predates the entry of the stipulated judgment. Therefore, the language of the judgment providing that the parties will be responsible for their own attorney fees would appear to preclude the trial court from awarding those fees as sanctions. In particular, the stipulated judgment provides: “Respondent/Alene shall be solely responsible for her own attorney fees and costs . . . incurred in connection with the negotiation, preparation and execution of this Stipulated Judgment and in connection with this Dissolution of Marriage action.” Even if Ralph’s conduct during the period leading up to finalization of the stipulated judgment was obstructionist and improperly and unnecessarily frustrated the policy of promoting settlement and reducing the costs of litigation (Fam. Code, § 271, subd. (a)), Alene contractually agreed to be responsible for the payment of her own attorney fees.

A marital settlement agreement incorporated into a stipulated judgment is construed under the statutory rules governing the interpretation of contracts generally. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) If the language of the judgment incorporating the marital settlement agreement is clear, explicit, unequivocal, and unambiguous, the court will enforce the express language. (Id. at p. 1440.) Here, the language of the stipulated judgment regarding each party’s responsibility for his or her own attorney fees is clear, explicit, unequivocal, and unambiguous.

The declarations of Alene and her former counsel, which are supported by documentary evidence, show that Alene and Ralph reached an agreement on the terms of a stipulated marital settlement agreement at the mandatory settlement conference in August 2017; both the parties and the trial court signed an Order for Judgment containing most of the major points of what would be the final stipulated judgment. After both Ralph and Alene had signed the marital settlement agreement that would become a part of the stipulated judgment, Ralph’s counsel refused to approve and have it entered. Ralph sent Alene messages indicating his counsel was refusing to sign the stipulated judgment because Ralph and his counsel had a disagreement over payment of Ralph’s fees.

Ralph filed a motion to continue the trial due to his trial counsel’s vacation plans (despite counsel having represented his availability at a trial setting conference in November 2017). On January 24, 2018, Ralph’s counsel filed a motion to be relieved on the ground that “irreconcilable differences have arisen due to a conflict of interest that has developed between the petitioner, Ralph J. Taber, and [counsel] Joseph W. Howington.” Alene objected to the request to continue the trial and requested that the court “Order [Ralph] to pay forthwith sanctions in the form of attorneys’ fees and costs the sum of $5,000 to Hughes & Hughes, LLP, counsel for [Alene], for the failure to timely schedule this matter for trial and for [Ralph] and his counsel’s constant delay of this matter, pursuant to Family Code § 271.” At the continued hearing on the motion to withdraw as counsel, the motion itself was withdrawn; the court found that “existing orders for Judgment are in effect”; the stipulated judgment was finally submitted to the court for execution; and the court denied the ex parte request to continue the trial.

The trial court did not rule on the request for sanctions included in Alene’s response to Ralph’s motion to continue the trial. Alene’s request for sanctions for Ralph’s obstructionist and improper conduct, included in her postjudgment motion, was merely a request for the court to consider this issue that it had failed to rule on.

Ralph argues an award of attorney fees under Family Code sections 271 and 2107, subdivision (c) is a matter for the trial court’s discretion (see In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478; In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991), and that the trial court did not abuse its discretion in denying Alene’s motion. The trial court did not exercise any discretion, having determined it lacked jurisdiction to rule on the merits of the request for sanctions. The failure to exercise discretion is an abuse of discretion. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1090-1091.)

Therefore, we will remand Alene’s motion for sanctions to permit the trial court to exercise its discretion in considering the issue in the first instance. The trial court shall be limited to awarding sanctions for attorney fees and costs incurred by Alene during the period from November 21, 2017, when the marital settlement agreement was fully executed by Alene and Ralph, to April 5, 2018, when the stipulated judgment was finally entered by the court, and solely attributable to the delays in finalizing the stipulated judgment caused by Ralph, Ralph’s counsel, or both.

III.

REQUEST FOR SANCTIONS/ATTORNEY FEES DUE TO DESTRUCTION OF
COMMUNITY PROPERTY ASSET

Alene argues that the trial court should have awarded sanctions against Ralph for purposefully concealing community property—a whole life insurance policy—and then destroying the asset by failing to pay the premium.

Alene and Ralph purchased the policy in 1990. Ralph told Alene in February 2015 that the policy had expired (although apparently the policy was in effect until at least November 2015). Alene would have continued paying the premiums on the policy if she had known Ralph intended to allow it to expire.

By allowing the policy to expire, Ralph unquestionably breached his fiduciary duty to the community. As to undisclosed property, the stipulated judgment provides:

“If a party fails to disclose an asset or has transferred an asset in breach of his/her fiduciary duty, the Court may award the other party 100% of the asset or a sum of money equal to 100% of the asset on the date of transfer, the date of execution of this Judgment, the date of discovery or any other reasonable date together with an award of reasonable attorney fees and costs.

“If it shall hereafter be determined by a Court of competent jurisdiction that either party is now possessed of any community and/or quasi-community property not set forth is this Stipulated Judgment, or that one of them has made, without the consent of the other, any substantial gift or transfer of any community property not set forth in this Stipulated Judgment (other than a transfer in exchange for a valuable consideration to the community or a family gift known to the other party), each of them hereby covenants and agrees to transfer or pay to the other, at the other’s election, (a) an amount of the other property equal to the other’s interest in it, if it is reasonably susceptible to division, (b) the full market value of the other’s interest on the effective date of this Stipulated Judgment, or (c) the full market value of the other’s interest at the time either party discovers the other’s ownership of the property. This Stipulated Judgment is not intended to impair the availability, in a Court of competent jurisdiction, of any other remedy arising from the undisclosed ownership.”

Alene cites In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 35, in which the appellate court concluded the wife committed fraud within the meaning of Civil Code section 3294 when she concealed lottery winnings obtained during the marriage but not disclosed during the dissolution proceedings. The husband was awarded the full amount of the winnings based on the language of the parties stipulated judgment, Civil Code section 3294, and Family Code section 1101, subdivision (h). (In re Marriage of Rossi, supra, at p. 39.) In the present case, the trial court should have considered whether the stipulated judgment’s provisions regarding undisclosed property applied to the whole life insurance policy that Ralph allowed to expire. We will remand this matter to the trial court to make such a determination. If the court does so, it shall also determine on what date the asset should be valued, how much of it should be distributed to Alene, and how much Alene should be awarded in attorney fees and costs.

IV.

REQUEST TO SET NEW VALUATION DATES

Alene requests that the valuation dates of the retirement accounts addressed in the stipulated judgment be modified. The terms of the stipulated judgment provide that the majority of the parties’ retirement accounts and pensions should be divided 50/50 with a valuation date of September 15, 2017. The valuation date was selected based on the parties’ intention to immediately finalize the stipulated judgment. Although the stipulated judgment was not entered until April 2018, the valuation date was not changed by the parties and became a part of the court’s judgment.

As of April 5, 2018, the affected retirement accounts were effectively split in half by operation of the stipulated judgment, at which point half of each became Alene’s separate property. (In re Marriage of Janes (2017) 11 Cal.App.5th 1043, 1049.) If, as Alene claims, Ralph has not signed the necessary paperwork to effectuate a transfer of half of these retirement accounts to Alene, he retains the responsibility to account for the gains and losses on Alene’s separate property when the transfer is effected. Ralph may not transfer only half the amount of the retirement accounts and pensions as of September 15, 2017; he must also account for gains or losses on the separate property since that date. (Id. at pp. 1049-1050.) The stipulated judgment requires the parties “[t]o act as a fiduciary with respect to all activities affecting the other party’s property and support rights from the date of separation until the date of distribution of the community asset or liability in question.” The issue of any alleged breach of fiduciary duty in Ralph’s management of the retirement accounts after the stipulated judgment as entered is not yet a matter for consideration by this court.

In his opposition to Alene’s motion, Ralph submitted a declaration stating: “[The 401K accounts] are all being divided by Qualified Domestic Relations Order. I have cooperated with the QDRO attorney pursuant to the terms of our judgment. I ask that the court deny Respondent’s request.”

The trial court did not err in refusing to rule on Alene’s motion on this ground, as there was not a dispute ripe for consideration. Our ruling is without prejudice to Alene’s right to request sanctions against Ralph if Alene later proves a breach of fiduciary duty by Ralph in the management or transfer of the retirement accounts.

V.

REQUEST TO CHANGE PAYMENT TERMS FOR STUDENT LOAN DEBT

The stipulated judgment provided that Ralph would pay the outstanding $20,000 balance on their daughter’s student loans in $5,000 installments. Ralph paid $10,000 to the lender. In early 2018, Alene paid off the student loan in order to restructure her debt, and the loan account was closed. Ralph has paid $5,000 of the remaining amount directly to Alene.

Alene also asked the trial court to order Ralph to make the final payment to her, rather than to the student loan lender. The trial court refused to grant this part of the motion because to do so would require the court to modify the judgment, which it did not have the jurisdiction to do. Ralph does not address this issue on appeal.

In his declaration in opposition to the motion, Ralph stated: “[Alene] is asking to modify the final judgment requiring me to pay $10,000 of a $20,000 equalizing reimbursement payment to [Alene] instead of making the payment directly to Sofi.
. . . With regard to the remaining payment, I have no issue, if [Alene] paid the remaining debt off, paying her directly, but I was given a year to pay this debt and thus would like until October to pay as scheduled.”

In re Marriage of Chester (1995) 37 Cal.App.4th 1624, cited by Alene, is not on point. That case involved the effect of a law changing the age of majority from 21 to 18 on preexisting judgments providing for child support until a child reached age 21. (Id. at pp. 1635 1636.) In In re Marriage of Bowen (2001) 91 Cal.App.4th 1291, the court was interpreting the judgment’s formula for determining the wife’s share of the husband’s pension. That case, too, is inapposite to the issues before this court in this case.

Ralph has declared under penalty of perjury that he will pay the remaining portion of the student loan debt to Alene on the date the stipulated judgment required him to make the payment to the lender. If that has not timely occurred, the stipulated judgment provides for recourse to the trial court with the payment by Ralph of costs and attorney fees. (See post at pp. 14-15.)

VI.

REQUEST TO ORDER RALPH TO COMPLY WITH THE TRANSFER OF HIS MILITARY PENSION

Alene also requested that Ralph be ordered to comply with the stipulated judgment’s requirement that he cooperate in the process of transferring his military retirement pension and right of survivorship benefits to Alene. Ralph does not address this issue on appeal.

The stipulated judgment retained in the trial court the jurisdiction to address the failure of a party to comply with his or her obligations thereunder. “Jurisdiction is reserved over all other issues, and all present orders remain in effect except as provided below.”

The stipulated judgment also included provisions regarding the parties’ cooperation in effectuating the terms of their agreement, specifically with respect to the transfer of retirement plans. “One-half (1/2) of the Military pension/disposable retired pay, in Petitioner Ralph’s name, shall be equally divided pursuant to a Military Division Order (‘MDO’). [¶] 1. Petitioner/Ralph shall fully cooperate regarding the MDO process and shall provide the MDO attorney with all information, statements, etc. requested by the attorney. The parties shall equally divide the cost of preparing the MDO. Respondent/Alene shall choose the MDO attorney.” “Y. COOPERATION AND EXECUTION OF DOCUMENTS [¶] Y-1. Each party shall, on demand of the other, acknowledge, execute, and deliver any instrument, furnish any information, or perform any other act reasonably necessary to carry out the provisions herein without undue delay or expense. The Clerk of the Superior Court of California is authorized, on ex-parte [sic] notice, to execute on behalf of either party any document or instrument which is reasonably necessary to carry out the provisions herein if a party hereto refuses or fails to so execute. Notwithstanding the failure or refusal of either party to execute any such instrument, the terms herein shall constitute a complete transfer and conveyance of the properties designated as being transferred, conveyed, or assigned by each party. [¶] Y 2. Each party agrees, on the demand of the other, to execute any instrument, furnish any information, or perform any other act reasonably necessary to carry out the provisions of this stipulated Judgment without undue delay or expense. Either of the parties who fail to comply with this paragraph shall reimburse the other party for any expenses, including attorney fees and court costs that as a result of this failure become reasonably necessary to carry out this paragraph. If necessary documents are not signed in a timely fashion the documents may be submitted to the clerk of the court or his designee for signature.”

Finally, the stipulated judgment included provisions for its enforcement if either party failed to perform their agreed-upon obligations. “Z. ENFORCEMENT OF JUDGMENT [¶] Z-1. In the event either of the parties shall be required to bring any action or proceeding to enforce any of the provisions of this Stipulated Judgment or any court order made after merger of any of the provisions of this Stipulated Judgment into the dissolution judgment, the prevailing party shall be entitled to recover all costs of such enforcement proceeding, including reasonable attorney fees.”

The trial court should have made factual findings regarding whether Ralph had taken the necessary steps to transfer his military pension. We remand the matter for further proceedings, including an award of attorney fees and costs to Alene if Ralph has failed to do so.

DISPOSITION

The portions of the postjudgment order denying the request to set new valuation dates, and denying the request to change the payments terms of the student loan are affirmed, without prejudice to Alene requesting sanctions against Ralph if Alene later proves a breach of fiduciary duty by Ralph in the management of the retirement accounts or in paying the student loans. The portions of the postjudgment order denying the request for sanctions due to the obstructionist and improper conduct of Ralph and his counsel during the period following the execution of the marital settlement agreement and before the entry of the stipulated judgment, denying the request for sanctions due to the alleged concealment and destruction of a piece of community property, and denying the request to order Ralph to complete the transfer of his military pension are reversed. The matter is remanded for further proceedings on these issues.

In the interests of justice, Alene shall recover her costs on appeal.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.