Filed 5/6/20 Marriage of Degenhardt & Nugent CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of THOMAS C. DEGENHARDT and CYNTHIA FULSTONE NUGENT.
THOMAS C. DEGENHARDT,

Appellant,

v.

CYNTHIA FULSTONE NUGENT,

Respondent. A156223

(Sonoma County

Super. Ct. No. SFL-76737)

In this family law case, Thomas C. Degenhardt and Cynthia Fulsome Nugent dispute whether they were married and, if they were, whether they had a valid premarital agreement to keep their separate property and earnings therefrom separate. In a bifurcated trial, the superior court addressed only the second question, rejecting Degenhardt’s theory that Nugent possessed the fully executed written premarital agreement. The trial court also rejected Degenhardt’s claim that Nugent was estopped from denying the existence of a premarital agreement.

On appeal, Degenhardt contends the trial court erred because the undisputed evidence at trial showed the parties had an oral agreement to keep their separate property, including any income therefrom, separate, and the parties fully performed that agreement by maintaining separate bank accounts, filing taxes as single payers, and generally behaving as single, unmarried persons. Degenhardt also argues we must reverse because Nugent is barred by either promissory estoppel or estoppel by conduct from contesting the validity of the premarital agreement. We reject Degenhardt’s contentions and affirm.

I. BACKGROUND

Degenhardt and Nugent were married in a ceremony on November 25, 2000. Although the couple and two witnesses signed the marriage certificate, it is undisputed the marriage certificate was never filed. Almost 14 years later, Degenhardt and Nugent separated.

Degenhardt is an orthopedic surgeon. His medical practice existed for many years prior to the marriage. Nugent also owned her own company before the marriage, Rodolph, Inc. (Rodolph), which supplies home furnishing textiles to individuals and businesses. Between 2000 to 2010, Rodolph reported profits for only three years. At trial, Nugent testified the company owed her millions of dollars.

Degenhardt and Nugent lived together in a home owned by Nugent in Santa Rosa (Santa Rosa home). After the marriage, Nugent did not add Degenhardt to the title of the home. Three years after they separated, Nugent sold the Santa Rosa home for $3.7 million, earning a net profit of $1.8 million.

In 2017, Degenhardt filed a petition to nullify the marriage. In response, Nugent filed a petition for dissolution of marriage. Degenhardt requested the trial court bifurcate for trial the issue of whether the parties had entered a valid prenuptial agreement. In his request, Degenhardt explained the parties were well-established in their respective self-employed businesses at the time they contemplated marriage in 2000, and they each had children from prior relationships. Degenhardt asserted Nugent’s goal was to keep her separate property, income during the marriage, increase in business value, and real property separate from any community property interest that might accrue to Degenhardt as a result of the marriage. Nugent consulted with her attorney, obtained a premarital agreement, filled in the blanks, and presented it to Degenhardt for his signature. Degenhardt claimed he briefly reviewed and discussed the document with Nugent, the parties handwrote an attachment listing their separate property, and Degenhardt signed the agreement. Degenhardt did not recall receiving a signed copy of the agreement, but “believe[d]” it was signed by both parties prior to the marriage. The trial court held a bifurcated, two-day trial to resolve the limited issue of whether the parties had entered a valid prenuptial agreement.

At trial, Degenhardt testified that about a week or 10 days before the wedding, Nugent presented him with a copy of a written premarital agreement and asked him to sign it. He said “okay” and he signed it. He did not recall Nugent saying anything in response. Degenhardt testified Nugent did not draw his attention to any portion of the agreement, and “basically” they did not discuss it. He did not read it “thoroughly” and probably did not read all of it, but read enough of it to convince himself it was a premarital agreement. Nor did Degenhardt have any discussions with Nugent before signing the agreement about whether they would create a community. He never saw Nugent sign the agreement, never discussed with her whether she had signed it, never received a signed copy of it, and never took a copy to an attorney for advice. Degenhardt “thought” he signed the document and handed it back to Nugent. When asked whether Nugent ever told him she agreed with the terms of the premarital agreement, he testified: “She never said anything to me at any time about her opinion—whether she agreed or didn’t agree with any of the contents of these documents.” He also testified that “at some point” they listed their separate property on the back of the written premarital agreement, but he did not know whether that took place before or after the marriage. He did not believe the list was on the document when he signed it.

Nugent, on the other hand, testified she and Degenhardt “generally” discussed that they wanted to maintain the properties they each had before marriage as their separate property for the benefit of their children and heirs. She called her attorney, James “Jake” Walker, because she wanted a document to clearly state what property she and Degenhardt had prior to marriage. She thought there might be a form for such a statement. Walker told her there was not such a form and faxed her a draft of a prenuptial agreement “ ‘for discussion’ ” instead.

Nugent testified she “skimmed [the prenuptial agreement] very quickly and looked at it very quickly and said there’s a lot of issues here that need to be discussed.” It was “not something [she] would have ever signed because there was [sic] too many questions that arose because of it,” and it was only “a draft for discussion.” She further testified that “certainly [she] was willing to consider some kind of a post-marital agreement, but it had to be defined.” Walker advised her that because he had sent the draft premarital agreement only 10 days before the wedding, she and Degenhardt would likely need to discuss with their respective attorneys and do “something post maritally [sic] if you do anything at all.” Nugent testified she did not sign the agreement and she had only a “[v]ery brief” discussion with Degenhardt about it before the marriage. When she first gave it to him, he started to write on the back listing his separate property, so she did the same. Nugent remembered giving Degenhardt a copy of the document with the lists on the back and keeping a copy for herself. Nugent did not see Degenhardt sign the agreement and he never told her he had.

Degenhardt’s attorney, Dwight Allen, also testified. Allen said he saw “a signed version of a premarital agreement.” At trial, Allen could recall almost nothing else about the circumstances, but he testified at his deposition that Degenhardt had provided him with a copy of the signed agreement. Degenhardt, however, denied providing Allen with a copy of the agreement and said he did not know how Allen got a copy.

The parties also testified extensively about how they handled their finances and conducted their relationship during the marriage. Degenhardt said he intended to marry Nugent on the day of their ceremony, but shortly thereafter she told him they were not married because she had not returned the marriage certificate. After she told him that, he believed he was not married to her. During the 14 years they lived together she never told him they were married.

With respect to their finances, Degenhardt testified Nugent presented him with a written budget with an amount of money he was supposed to pay every month during the period they lived together. Sometimes they negotiated over what would be included in the budget or when additional funds were needed for upkeep and improvements on the Santa Rosa home. Degenhardt would often split home improvement costs with Nugent “50/50.” The couple never owned any property together and never signed quitclaim deeds or interspousal transfer deeds in one another’s favor. Degenhardt never invested in or purchased a share of the Santa Rosa home, though he cosigned a $500,000 home equity line of credit on it. Degenhardt also made loans to Nugent of $150,000 and $50,000 to help with her business, which she never told him were community debts. Degenhardt was “paid back” in full for the loans by deducting monthly loan payments from the $6,300 he was giving her as his monthly contribution. He never discussed his estate plans with her during their marriage. He testified he and Nugent never had a conversation in which either of them suggested they had an interest in one another’s income or earnings. At one point, Nugent and Degenhardt discussed whether they should file taxes jointly to offset her business losses against his income, but Nugent told him she did not want to do that because she wanted to use the losses in the future. Degenhardt filed tax returns as a “single” taxpayer because Nugent told him to do so because she never filed their marriage certificate.

Nugent denied she ever told Degenhardt they were not married and stated she thought she was married. She testified in the 14 years they were together he never told her they were not married. As to the couple’s financial arrangement, Nugent said she and Degenhardt discussed before the wedding keeping their property prior to marriage separate, but not their finances. After they returned from their honeymoon, Nugent testified she and Degenhardt further discussed their finances and her concerns about the future. She had made a number of notes about issues to discuss with him, because she had been contemplating a “community property [arrangement],” and the premarital agreement made her realize they needed to discuss how they could save enough money for retirement. Nugent and Degenhardt discussed a household budget where she would contribute to the house by paying the mortgage and property tax, and he would contribute money to a household account. The parties agreed that would be “an equitable participation.” Nugent testified the “concern that I had was that I was giving 100%, pretty much, of my income into . . . my end of it, and he was giving far less.” Degenhardt contributed approximately 20 percent of what he earned—at least a million dollars over the course of their relationship—to the household budget. During the conversation, Nugent shared with Degenhardt her concern that there was an age difference between them, she was concerned she would have fewer years of earning if they retired at the same time and he would probably die earlier, and she wanted to be sure they planned for her care. She testified there was never a follow-up conversation, however.

Nugent explained she was “careful to keep [her] prior property separate so that there would be no confusion as to it becoming community property because we did not have [the prenuptial] agreement.” Nugent affirmed she wanted to keep her separate property separate during the marriage, but she also testified she expected to share her earnings with Degenhardt. She claimed she put “a hundred percent of everything [she] earned into [their] household account,” and she expected to share in Degenhardt’s income because it was community property. Though she could not recall all the instances in which she asked him to contribute from his earnings, the objective of his contributions was to build “a nest egg” for retirement. At one point, Nugent asked Degenhardt to invest “into 50% of the house” by contributing an investment of $1.8 million. When he replied he did not have the funds to do that, she asked if he would be willing to contribute $500,000 when he sold his own house. When he eventually did sell, he offered to cosign a home equity loan rather than invest in the Santa Rosa home. Nugent affirmed they never had a discussion where they “negotiated a deal” because she “was quite happy with the community property situation,” which she understood to be that she “was contributing 100% of . . .[her] earnings . . . to the community . . . and he was contributing substantially less, which [she] understood. [¶] But it was . . . also [her] understanding that the rest of the balance of it was . . . building of [their] nest-egg for the future.”

Nugent said she was concerned about Degenhardt filing taxes as a single taxpayer because she thought they were married. When she asked him about it, he told her he felt he could avoid a marriage penalty tax. One year when she had a $100,000 loss in her business, Nugent approached Degenhardt about filing their taxes jointly “because I had a loss that he might be able to counter his payments to the government with and we’d get a return.” He told her he would consider it but would want to keep half of it. She told him she was concerned she would “have a problem with the loss carryforward” and ultimately decided it would be better if she filed separately.

After hearing two days of testimony, the trial court issued a detailed draft statement of decision. Degenhardt filed objections to the proposed statement of decision, after which the trial court issued its final statement of decision.

The court made explicit determinations about the parties’ credibility. It found Degenhardt’s testimony credible, noting he gave forthright responses even when they were detrimental to his case. The court found Nugent’s testimony “lacked credibility in some areas,” found her evasive, and noted her responses were often inconsistent with other evidence presented during trial. Nugent’s testimony that she did not sign the premarital agreement, however, was consistent with the documentary evidence. Regarding Degenhardt’s trusts and estates lawyer, Dwight Allen, the court found he was “clearly experiencing some cognitive deficiencies both in his testimony at trial and his testimony at deposition.” The court found “extremely suspect” Allen’s testimony that he saw a copy of the premarital agreement signed by both parties, particularly because he testified confidently that Degenhardt had given him the signed copy of the premarital agreement, but Degenhardt testified he never saw a signed copy and did not provide it to his attorney.

On the validity of the prenuptial agreement, the court found Degenhardt never saw Nugent sign the original premarital agreement and never saw a signed copy of the agreement. Noting Degenhardt admitted Nugent remained in possession of the original agreement which included the parties’ original handwritten property lists on the back, the court rejected the argument that Nugent could have removed the signed signature page and substituted an unsigned signature page. The trial court found “there was not sufficient evidence to support the finding of the existence of a fully executed prenuptial agreement.”

The trial court also rejected Degenhardt’s equitable estoppel arguments. It found insufficient evidence that the parties had a mutual understanding or agreement, or that Nugent misrepresented to Degenhardt that she actually signed the agreement. The trial court further determined Degenhardt could not rely on Nugent’s statements the marriage was invalid because estoppel is based on statements of fact, not statements of law, and thus Nugent’s “incorrect legal opinion” that failure to return the marriage certificate invalidated the marriage did not create an estoppel. Further, because Degenhardt was fully aware of the facts as represented by Nugent, specifically, that she had not returned the marriage certificate, he could not meet one of the elements of equitable estoppel.

Following issuance of a certificate of probable cause by the trial court, Degenhardt timely filed a motion for interlocutory appeal under Family Code section 2025 and California Rules of Court, rule 5.392, which we granted.

II. DISCUSSION

A. Standard of Review

The parties disagree which standard of review governs this appeal. Degenhardt contends we should review the issues presented de novo because the facts in this case are “essentially undisputed.” He argues when the evidence is undisputed, the existence of both a contract and an estoppel is a question of law. (Serafin v. Balco Properties, Ltd., LLC (2015) 235 Cal.App.4th 165, 173; Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315 (Steinhart).) Nugent, on the other hand, contends the facts are disputed, and to the extent any facts are undisputed, the inferences from those facts are disputed. Because the issues presented to the trial court required factual determinations, she argues, the appropriate standard of review is substantial evidence and we must indulge all intendments and presumptions to support the judgment.

Nugent has the better argument, with a caveat. Because the material facts are indeed disputed, and the questions the trial court was tasked with determining were factual issues, we agree deference to the trial court’s judgment is mandated, and we must construe the facts in the light most favorable to the judgment. (See Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 756 [equitable estoppel is a factual question subject to substantial evidence standard of review]; Vita Planning & Landscape Architecture, Inc. v. HKS Architects, Inc. (2015) 240 Cal.App.4th 763, 771–772 [existence or terms of contract is question of fact subject to substantial evidence review if evidence is conflicting or admits of more than one inference].) However, because Degenhardt had the burden to prove the existence of either a premarital agreement or estoppel and the trial court concluded he failed to meet that burden, the appropriate question on review is whether the evidence compels a finding in his favor as a matter of law. As explained in Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, the substantial evidence test is “ ‘typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] ‘Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Id. at pp. 465–466; see Valero v. Board of Retirement of Tulare County Employees’ Assn. (2012) 205 Cal.App.4th 960, 965 [describing this alternative test as a “conceptual and substantive distinction within the substantial evidence analysis depending on who has the burden of proof on a particular issue, which party prevailed on that issue and who appealed”].) With that standard in mind, we turn to the merits of the parties’ arguments.

B. Existence of Premarital Agreement

Degenhardt first contends the trial court erred in finding no premarital agreement existed because the parties’ admissions and undisputed evidence shows the parties had an oral agreement to keep separate the property each owned before marriage and the parties fully performed in accordance with that agreement for 14 years. Acknowledging Family Code section 1611 requires prenuptial agreements to be in writing, Degenhardt argues section 1611 is a statute of frauds subject to traditional exceptions to the statute of frauds, including full performance, partial performance, and equitable estoppel. Because the parties fully performed their agreement by maintaining separate finances throughout their marriage, Degenhardt contends, the oral agreement was taken out of the statute of frauds. Nugent counters that because Degenhardt did not raise this theory in the trial court, he is precluded from raising it for the first time on appeal.

Ordinarily, a party cannot raise a new theory for the first time on appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603; Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1230.) “ ‘This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal . . . .’ [Citation.] . . . ‘ “Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. . . . Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.” ’ ” (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)

The only theory Degenhardt presented to the trial court regarding the existence of a premarital agreement was that Degenhardt and Nugent executed a written agreement. Degenhardt’s request for bifurcation identified the factual issue to be tried as whether the parties had entered a valid prenuptial agreement, and described the prenuptial agreement prepared by Jake Walker, faxed to Nugent, and presented to Degenhardt “for his review and signature” as the prenuptial agreement entered into by the parties. The request for bifurcation attached Degenhardt’s declaration, which attested Nugent presented him with a written premarital agreement drafted by her attorney, he signed it, and Nugent retained it. Degenhardt’s declaration also attached a copy of the written premarital agreement, and further stated he “recall[ed]” that Nugent also signed the agreement and the parties’ intent in signing it was to keep their property separate during the marriage. He attested he had not seen a signed copy of the premarital agreement since he and Nugent separated, but his estate planning attorney, Dwight Allen, was provided a copy of the signed agreement at his request in 2002. Nowhere did Degenhardt’s declaration mention an oral premarital agreement, or even suggest the parties had a conversation about or discussed terms of a premarital agreement.

Degenhardt’s trial brief likewise focused on his theory that he signed the prenuptial agreement provided by Nugent, but the document had been lost and therefore oral testimony was admissible to prove the contents of the writing. He cited Family Code section 1611 and argued he and Nugent “entered into a written agreement waiving the rights of each party to the other party’s property, including earnings during marriage.” (Italics added.) He further argued that “[a]lthough the writing signed by both parties has not been located, [Degenhardt] requests this court find [Nugent] is estopped from denying the existence of the agreement.” At trial, Degenhardt did not advance a theory of an oral agreement to keep property separate, and Degenhardt’s closing brief expressly requested the trial court find he and Nugent “entered into a valid written agreement in November 2000, prior to participating in any wedding ceremony.” Indeed, he wrote: “The overwhelming weight of the evidence at trial should lead the court to but one conclusion—a valid written agreement exists thereby precluding the creation of any community property or any interest by either party in the assets, property, income or retirement plans of the other.” (Italics added.) The trial court did not address the existence of an oral agreement in the proposed statement of decision, nor did Degenhardt request such a finding in the objections he filed to the proposed statement of decision.

In his reply brief, Degenhardt contends that even if he did not raise it below, his oral agreement argument is not forfeited because it is undisputed based on the testimony of both parties that they had an agreement to keep their separate property, including any income derived therefrom, separate. The record, however, does not support his argument. Specifically, Nugent testified the parties agreed to keep separate property acquired before marriage separate, but she understood their earnings during the marriage were community property. Nor does Degenhardt cite to any of his own testimony that the parties reached an agreement to treat income from their separate properties as separate property. Nugent stated the written premarital agreement she received from her attorney was not acceptable to her, they had only a “[v]ery brief” discussion about it, she never signed it, and she never saw Degenhardt sign it. Degenhardt testified he signed the written premarital agreement Nugent presented, but he and Nugent did not discuss it, he did not read it thoroughly, and he did not have any discussions with her before signing it about whether they would create a community. Moreover, Degenhardt testified Nugent “never said anything to [him] at any time about . . . whether she agreed or didn’t agree with any of the contents” of the premarital agreement prepared by her attorney. To the extent these parties had an oral agreement, it was hardly “undisputed” what that agreement was.

In sum, we conclude Degenhardt has forfeited the argument the parties reached an oral premarital agreement by failing to assert it at trial.

Moreover, even if we were to reach the merits, we disagree the undisputed facts show the existence of an oral contract as a matter of law. An oral contract, just like any contract, requires mutual assent and terms specific enough to be enforced. (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 406; Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208–209 (Bustamante).) In addition, the consent of the parties to a contract must be mutual and communicated by each party to the other. (Civ. Code, § 1565, subds. 2 & 3.) As summarized above, neither party testified they entered an oral premarital agreement or what the terms were, and the parties testified to different understandings of how they would and did maintain their finances. Degenhardt testified they did not discuss the terms of the written premarital agreement from Nugent’s attorney, and Nugent said they had only a “[v]ery brief” discussion about the agreement. Though Degenhardt repeatedly asserts Nugent testified the parties agreed to keep any income derived from their separate property businesses separate, she actually testified (1) the parties agreed to keep separate property acquired before the marriage separate (without saying anything about an agreement with respect to the income from that separate property generated during the marriage), (2) she understood the parties were contributing their respective earnings to the community, and (3) she believed Degenhardt did not acquire an interest in the Santa Rosa home. As Degenhardt acknowledges in his briefing, “ ‘[m]utual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.’ ” (Serafin v. Balco Properties, Ltd., LLC, supra, 235 Cal.App.4th at p. 173.) Because there is no evidence the parties discussed or agreed on the terms of a premarital agreement, we cannot conclude the trial court erred in finding insufficient evidence they formed one. (Bustamante, supra, 141 Cal.App.4th at p. 208 [“Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed.”].)

These facts distinguish this case from the cases cited by Degenhardt. In Hall v. Hall (1990) 222 Cal.App.3d 578, for example, the issue was not whether an oral premarital contract was ever formed, but whether it was enforceable because it was not in writing and signed by both parties. (Id. at pp. 582–583.) There, the trial court found based on substantial evidence that the parties had entered an oral agreement for husband to convey to wife a life estate in their residence. (Id. at pp. 582–583, 586–587.) Similarly, in Handley v. Handley (1952) 113 Cal.App.2d 280, plaintiff-wife conceded the evidence was sufficient to warrant a finding the parties had entered an oral agreement to treat their property as community property, and the only issue before the appellate court was whether the evidence was sufficient to justify a finding that the agreement was confirmed by the acts and conduct of the parties. (Id. at p. 283.) And in In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, the trial court found the parties had reached an oral agreement to transmute their separate property to community property. (Id. at pp. 685–686.) On this record, by contrast, the trial court did not find the parties entered an agreement, and there is no uncontradicted evidence of mutual assent to any terms, let alone specific terms, of a premarital contract, whether oral or written.

Degenhardt further asserts Nugent’s testimony is not substantial evidence to support the judgment because the trial court found Nugent lacking in credibility. The fact that the trial court found Nugent not credible in “some areas,” however, does not demonstrate it rejected all of her testimony. Indeed, the trial court specifically credited her testimony she did not sign the written prenuptial agreement and her testimony she would have required changes to the draft and had further questions about it, but there was not time before the ceremony. Further, because the trial court was not presented with the oral agreement theory of the case, it had no opportunity to weigh in on the credibility of the parties with respect to the formation or terms of an alleged oral premarital agreement. And, as explained above, because Degenhardt had the burden of proof at trial, the question for this court is not whether Nugent’s testimony is sufficient to support the judgment, but whether all of the evidence taken together compels a finding in Degenhardt’s favor.

Because the facts are disputed, and do not show the existence of an oral contract as a matter of law, the trial court did not err.

C. Estoppel

Degenhardt next contends “[e]stoppel can—and should—be applied on numerous grounds supported by the evidence in this case.” Initially, he contends the undisputed evidence established promissory estoppel because Nugent “admitted that she and [Degenhardt] had a premarital agreement to keep their property and income separate” and her “own testimony established that [Nugent] made a promise to [Degenhardt] to keep their property and income separate.” Degenhardt further contends he relied on Nugent’s promise when amending his estate plan and not taking any steps to protect his 401k plan.

For several reasons, we reject this argument. First, Degenhardt did not raise promissory estoppel as a theory in the trial court. As discussed above, we will generally not consider theories raised for the first time on appeal. (See Nellie Gail Ranch Owners Assn. v. McMullin, supra, 4 Cal.App.5th at p. 997.) Second, Degenhardt’s argument does not provide citations to the record in support of his contentions, and we may therefore deem them waived. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Third, as also discussed above, the evidence on this point was not undisputed. Nugent did not testify that she promised, or the parties had an agreement, to keep their income separate as Degenhardt argues, and therefore we cannot conclude as a matter of law that Nugent made a clear and unambiguous promise on which Degenhardt relied. (See, e.g., Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734 [elements of promissory estoppel are (1) a promise clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) reliance must be reasonable and foreseeable, and (4) the party asserting the estoppel must be injured by his reliance].)

Next, Degenhardt contends equitable estoppel or estoppel by conduct precludes Nugent from denying the existence of a premarital agreement. “ ‘The doctrine of equitable estoppel is based on the theory that a party who by his declarations or conduct misleads another to his prejudice should be estopped from obtaining the benefits of his misconduct.’ ” (Cotta v. City and County of San Francisco (2007) 157 Cal.App.4th 1550, 1567; see Evid. Code, § 623.) Unlike promissory estoppel, which is based on a promise, equitable estoppel is based on a misrepresentation of an existing fact. (Cotta, at p. 1566, fn. 8.) “ ‘ “ ‘Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.’ ” ’ ” (Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 564–565.) As Degenhardt acknowledges, the existence of estoppel is a question of fact for the trial court, whose determination is conclusive on appeal unless the opposite conclusion is the only one that can be reasonably drawn from the evidence. (Id. at p. 565; In re Marriage of Turkanis & Price (2013) 213 Cal.App.4th 332, 353.)

Degenhardt contends the trial court erred in refusing to estop Nugent from denying the existence of a premarital agreement because the undisputed evidence showed he and Nugent both “performed their respective parts of their bargain during the course of their 14-year relationship, right up until trial when [Nugent] changed her position.” The first problem, however, is that, as discussed above, there is no conclusive evidence the parties reached a bargain, whether oral or written. Accordingly, there is no undisputed evidence Nugent knew the parties had a premarital agreement, knew its terms, or intended Degenhardt to rely on the existence of a premarital agreement. (See, e.g., Steinhart, supra, 47 Cal.4th at p. 1318 [“where a party asserts estoppel, ‘the facts proved must be such that an estoppel is clearly deducible from them. . . . [Citation.] [¶] The representation, whether by word or act, to justify a prudent man in acting upon it, must be plain, not doubtful or matter of questionable inference. Certainty is essential to all estoppels.’ ”].)

In addition, the evidence does not show Degenhardt was ignorant of the true state of the facts. (See In re Donovan L. (2016) 244 Cal.App.4th 1075, 1085 [all parties knew the same facts, precluding the application of equitable estoppel].) As the trial court so aptly summarized in its statement of decision: “[Degenhardt] has not alleged that [Nugent] misrepresented a fact to him. At no time during his testimony did [Degenhardt] allege that [Nugent] told him she had signed the premarital agreement. To the contrary, [Degenhardt] testified that he at no time saw [Nugent] sign the document or actually saw a fully executed copy of the document himself. In fact, [Degenhardt] testified that the parties had only minimal conversation regarding the draft premarital agreement that was faxed to [Nugent] by her attorney. [Nugent] testified that she would require changes to the draft that was sent to her and had additional questions she would want answered, but there was no time for that to occur prior to their marriage ceremony.” The court concluded the estoppel exception to the statute of frauds “is to [e]ffect the mutual understanding and agreement of the parties that would be enforceable but for the failure to have a signed writing.” Because Degenhardt “failed to present sufficient evidence to establish that the parties had a mutual understanding and agreement or that [Nugent] misrepresented to him that she actually signed the agreement,” his equitable estoppel argument failed.

Nor, as Nugent points out, is there evidence that Degenhardt actually relied on the existence of a premarital agreement in failing to make changes to his 401k or his estate plan as he argues on appeal. Degenhardt affirmed he was unmarried in his will and 401k beneficiary designation and filed his tax returns as a single person because Nugent told him they were not married and he did not believe he was married. Moreover, Degenhardt testified that other than reviewing the written document to identify it as a premarital agreement, he did not read it. This testimony supports an inference he was not familiar with the terms of the unexecuted written agreement, and Degenhardt cannot show he relied on the existence of a premarital agreement if he did not know what the agreement was. On this record, we simply cannot conclude the trial court erred in rejecting Degenhardt’s equitable estoppel claim.

Finally, Degenhardt contends the trial court erroneously determined Nugent could not be estopped to deny a premarital agreement because she told Degenhardt that their marriage was not valid. At trial, Degenhardt argued Nugent told him they were not validly married because she never returned the marriage certificate to the county registrar, and that statement led Degenhardt to believe they were not married and he did not need to do anything to maintain the separate nature of his property. As a result, he argued, Nugent is now estopped from claiming an interest in Degenhardt’s assets.

Degenhardt has failed to show the trial court erred in rejecting his estoppel claim based on the invalidity of the marriage. First, as with the existence of the premarital agreement, Degenhardt cannot show he was ignorant of the true facts as required for the application of equitable estoppel. (See Krolikowski v. San Diego City Employees’ Retirement System, supra, 24 Cal.App.5th at pp. 564–565.) He was fully aware of the true facts as represented by Nugent; she did not conceal from him that she failed to return the marriage certificate.

The trial court also pointed out that established precedent holds registration of a marriage certificate is not necessary to the validity of a marriage. In In re Marriage of Cantarella (2011) 191 Cal.App.4th 916, 919, a judge conducted a marriage ceremony for a couple but the marriage certificate was twice rejected for registration because of a technical error on the document. After the second rejection, the couple decided not to resubmit the certificate for registration, perhaps because they wanted to reap the tax benefits of remaining single. (Ibid.) The Court of Appeal concluded the failure to register the marriage certificate did not render the marriage invalid. (Id. at pp. 919–920.) Here, Degenhardt contends Cantarella does not apply because it was decided 11 years after his and Nugent’s marriage ceremony, and is distinguishable because the couple in that case behaved as if they were married. But as the trial court in this case observed, it did not rely on Cantarella to decide the validity of Nugent and Degenhardt’s marriage, it only noted the legal principle that failure to register a marriage certificate does not invalidate a marriage as a matter of law so far as it related to Degenhardt’s equitable estoppel argument. (See Cantarella, at pp. 924–926; see also Chaney v. Netterstrom (2018) 21 Cal.App.5th 61, 68.)

In any event, as the trial court also concluded, the theory of estoppel looks to statements of fact, not statements of law. (Steinhart, supra, 47 Cal.4th at p. 1315.) Nugent’s belief that her failure to return the certificate invalidated their marriage, whether legally correct or not, is not a basis for estoppel by conduct.

For all of these reasons, we conclude Degenhardt has failed to show the trial court erred in rejecting his estoppel argument based on the invalidity of the marriage.

We conclude with an observation. In both his opening and reply briefs on appeal, Degenhardt essentially argues Nugent cannot “have her cake and eat it, too”—that is, she cannot contend on the one hand their earnings would be community property with respect to the income from Degenhardt’s business but, on the other hand, her earnings from her business and financial losses resulting in tax benefits are her separate property. Nugent does not respond to this argument and, admittedly, the argument has some facial appeal. Of course, these issues are not before us, and we express no opinion on the validity of the marriage, or the community property or separate nature of specific property, earnings, or income in this case. These will be issues for the trial court to determine on remand.

III. DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Nugent.

 

____________________________

Margulies, J.

We concur:

_____________________________

Humes, P. J.

_____________________________

Banke, J.

A156223

In re Marriage of Degenhardt and Nugent