Opinion
D056861 Super. Ct. No. D389414
09-01-2011
In re the Marriage of W.T. and MARIA L. GURNEE W.T. GURNEE, Appellant, v. MARIA L. GURNEE, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Affirmed.
W.T. Gurnee (Husband) appeals a postjudgment order enforcing the judgment of dissolution that incorporated his marital settlement agreement (MSA) with his former wife, Maria L. Gurnee (Wife). The order required him to cooperate in obtaining life insurance on his life naming Wife as the sole beneficiary in lieu of a 21.37 percent beneficiary interest in his military survivor benefit plan (SBP), which was eliminated after his remarriage and election of his new wife as an SBP beneficiary. On appeal, Husband contends the trial court erred: (1) in interpreting the MSA; (2) by finding he breached the MSA and awarding Wife remedial relief; (3) by issuing an affirmative injunction that is statutorily precluded; (4) by issuing an injunction that violates his constitutional right to privacy; and (5) by awarding attorney fees to Wife.
FACTUAL AND PROCEDURAL BACKGROUND
In 1972, Husband and Wife were married. In 1981, Husband retired from the United States Navy after 20 years of service. In 1994, Husband and Wife separated.
As of August 15, 1995, Husband and Wife entered into the MSA, which was subsequently incorporated in the November 1995 marital dissolution judgment entered by the trial court. The MSA provided that Husband pay Wife 21.37 percent of his gross retirement pay of $1,819 per month, representing one-half of the community interest in retirement pay benefits he earned during their marriage. In addition, section 18(D) of the MSA provided:
Although the record on appeal contains a copy of the MSA, it does not include a copy of the judgment. However, because the parties do not dispute that the judgment was entered incorporating the MSA, the non-MSA provisions of the judgment are not relevant to this appeal.
"Husband hereby voluntarily elects to maintain Wife as the beneficiary of 21.37% of the [SBP] for so long as he is required to pay her a portion of his military retired pay. This election is contingent upon Husband's ability to name the beneficiary of his choosing as to the balance (78.63%) of the SBP benefits. Wife shall reimburse Husband monthly for 21.37% of the cost of the SBP which will be deducted from Husband's military retirement pay. Wife's failure to pay said sum to Husband within 14 days ofSection 18(F) of the MSA provided that the cost of Husband's SBP benefit at that time was $120.79 per month. Section 18(J) provided: "The court shall reserve jurisdiction over this asset to aid in the enforcement of the provisions of this Section." More generally, section 48 provided:
Husband's written demand therefore . . . will allow Husband to irrevocably delete Wife from said beneficiary status."
"In the Judgment of Dissolution of Marriage anticipated by this Agreement, there shall be reserved to the San Diego County Superior Court, in addition to the jurisdiction specifically mentioned elsewhere in this Agreement, the jurisdiction to:
"A. Supervise the payment of any obligation ordered paid or allocated in this Agreement.
"B. Supervise the division of assets as agreed in this Agreement.
"C. Supervise the execution of any documents required or reasonably necessary to carry out the terms of this Agreement.
"D. Supervise the overall enforcement of this Agreement."
Husband remarried and named his new wife as a 78.63 percent beneficiary of his SBP. The military apparently then deleted Wife as an SBP beneficiary. In 2006, Husband stopped paying Wife her 21.37 percent share of his monthly retirement pay. In 2008, while assisting Wife with her financial matters, Rena Baxter (Husband and Wife's daughter) discovered Husband had ceased paying Wife her share of his retirement pay. Wife retained an attorney who obtained documents from the military showing Wife was no longer listed as an SBP beneficiary.
The record on appeal apparently does not show the date of Husband's subsequent marriage or the date he named his new wife as an SBP beneficiary.
On August 26, 2008, Wife filed an order to show cause (OSC), requesting an award against Husband of her retirement pay arrears, reinstatement of her retirement pay share, reinstatement as an SBP beneficiary, and an award of attorney fees and costs. Husband responded to the OSC, consenting to payment of retirement pay arrearages and reinstatement of Wife's share of his retirement pay. However, he did not know the amount of arrearages due. Husband also stated he would inquire whether it was possible to name both Wife and his current wife as SBP beneficiaries.
On July 10, 2010, Wife filed a companion OSC, requesting that the trial court order Husband to cooperate in obtaining a $250,000 term life insurance policy on his life, naming Wife as the beneficiary, and that he pay the annual premium. In that OSC, she stated: "This request is based on the fact that [Husband] removed me as the beneficiary of the [SBP] without my knowledge many years ago in violation of the court order." She also requested an award of attorney fees and costs. In her declaration in support of the companion OSC, Wife stated in pertinent part:
"2. . . . This request is based on the fact that I recently discovered that [Husband] either failed to name me, or removed me[,] as the beneficiary of the [SBP]. Although our Judgment and [MSA] provide for [Husband] to name me as the beneficiary with an interest in the amount of 21.37%, he failed to do so. . . . The records subpoenaed from DFAS confirm that [Husband's] current spouse . . . is the beneficiary of the SBP.
"3. I relied on the terms of the Judgment to protect me in the event of [Husband's] death. As it stands, if he were to pass away, my
interest in the military retired pay would terminate. . . . [Husband] and I negotiated in our MSA that he would maintain me as the beneficiary. He failed to notify me that I am not named as a beneficiary. I had no knowledge of this until my attorney issued a subpoena to DFAS.
"4. . . . I have conducted research on the DFAS website, and it does not appear that [Husband] can reinstate me as a former spouse beneficiary due to the passage of time. Therefore, he should be ordered to provide me with life insurance in the reasonable amount of $250,000."
Husband filed a response, opposing the relief requested in Wife's companion OSC. He argued he was not required to continue Wife as an SBP beneficiary if the military would not allow him to name his current wife as SBP beneficiary while also keeping Wife as a beneficiary. He opposed Wife's request that he cooperate in obtaining a life insurance policy naming Wife as the beneficiary and, in any event, the amount of that policy should be only $53,425 and he should not be required to pay its premiums.
In reply, Wife filed a declaration of S. Chris Summers, a financial consultant, who calculated the present value of Wife's current share of Husband's retirement pay ($589.17 per month) to be about $97,763.
On October 7, 2009, the trial court conducted a hearing on Wife's original OSC and her companion OSC. On January 19, 2010, the court issued its findings and order, stating:
"1. Judgment in the amount of $33,090.34 [for retirement pay arrears] shall enter against [Husband] in favor of [Wife] and said amount is payable forthwith. This sum is comprised of principal in the amount of $23,790.33 and interest of $9,300.01 as of October 6, 2009. . . .The court also ordered Husband to contribute $12,000 toward Wife's attorney fees. Husband timely filed a notice of appeal.
"2. The Court finds that [Husband] is responsible to provide life insurance coverage to [Wife] as follows: [Husband] is to cooperate in all ways to obtain a term life insurance policy in the sum of $100,000 with [Wife] being named as the sole beneficiary thereon. [Wife] shall pay the cost, however, and that more closely, as close as possible, puts her in the position that she would have been under the terms of the Judgment had not the military prevented the Judgment. The Court will reserve jurisdiction over this issue of insurability and reserve jurisdiction over the issue pertaining to whether there should be a cap put on [Wife's] liability for the Judgment. If [Husband] is not insurable, the Court will require him to indemnify [Wife].
"3. The Court finds that both parties share the responsibility for the breakdown and implementation of the survivor benefit provision at Section 18-D of the [MSA]. They were both represented by counsel and both of them should have called the military or had somebody call the military to determine what could be done or not done, whether this kind of bifurcated provision would be honored by the military. . . . [T]his provision of the Judgment cannot be accomplished. At the same time, however, the Court finds that [Wife] is entitled to be insured under the terms of the Judgment and that this Order is as close as the Court can come to putting [Wife] back in that position with reserving over extraordinary issues.
"4. . . . The Court also reserves jurisdiction over the number of insurance carriers to which [Husband] will have to submit to a physical exam and all extraordinary issues."
DISCUSSION
I
Interpretation of the MSA
Husband contends the trial court erred in interpreting the MSA to require him to provide Wife with a source of income on his death, whether as a beneficiary of the SBP or an insurance policy on his life.
A
At the October 7, 2009, hearing, the trial court rejected Husband's argument that his obligation to name Wife as an SBP beneficiary was contingent on his ability to name another beneficiary as to the remaining 78.63 percent interest and, on the failure of that contingency, he owed Wife no further obligation under the MSA to provide her with equivalent death benefits at her expense (e.g., a life insurance policy with Husband as insured and Wife as the beneficiary). The court explained:
"[T]hat is part of the deal [Husband] made. Once the deal [MSA] became an order of the Court, it's no longer voluntary. He had to elect. He had to ensure under the terms of this judgment sort of a bifurcated insurance coverage in the percentages cited in the provision."
Accordingly, the court issued the order discussed above.
B
In general, "[m]arital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally." (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) Nevertheless, "[c]ourts interpreting provisions of marital settlement agreements may be subject not only to general contract interpretation rules but also to family law public policy considerations." (1 Cal. Marital Settlement and Other Family Law Agreements (Cont.Ed.Bar 3d ed. 2011) § 3.9, pp. 82-83, citing In re Marriage of Vomacka (1984) 36 Cal.3d 459, 469.)
We briefly discuss the principles of contract interpretation we deem most relevant to deciding the issues in this case. "The interpretation of a written instrument is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. [Citation.] Unless interpretation turns upon the credibility of extrinsic evidence, an appellate court is not bound by the trial court's construction but makes an independent determination of the meaning of the writing." (In re Marriage of Smith (2007) 148 Cal.App.4th 1115, 1120.)
In interpreting a written agreement, we "look first to the language of the contract . . . to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it." (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.) "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code, § 1636.) The intent is to be inferred, if possible, solely from the written provisions of the contract. (§ 1639.) Language in a contract must be interpreted as a whole and in the circumstances of the case, and cannot be found ambiguous in the abstract. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265; §§ 1641, 1647.) However, if contract language is reasonably susceptible to more than one construction, it is ambiguous. (Waller, at p. 18.)
All statutory references are to the Civil Code unless otherwise specified.
In general, an ambiguous or uncertain provision of a contract "must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (§ 1649.) " '[W]here the language of the contract is ambiguous, it is the duty of the court to resolve the ambiguity by taking into account all the facts, circumstances and conditions surrounding the execution of the contract.' " (Frankel v. Board of Dental Examiners (1996) 46 Cal.App.4th 534, 544, quoting Floystrup v. City of Berkeley Rent Stabilization Bd. (1990) 219 Cal.App.3d 1309, 1318.) If extrinsic evidence is admitted to interpret an ambiguous contract but that evidence is undisputed and the parties draw conflicting inferences, a reviewing court independently draws inferences and interprets the contract. (City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 71; Richeson v. Helal (2007) 158 Cal.App.4th 268, 276; Frankel, at p. 546.)
Whether or not a contract is ambiguous, "[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, italics added; see also Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 953-954; Richeson v. Helal, supra, 158 Cal.App.4th at p. 277; City of El Cajon v. El Cajon Police Officers' Assn., supra, 49 Cal.App.4th at p. 71.) "[W]e must interpret a contract in a manner that is reasonable and does not lead to an absurd result." (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 651.) "The court must avoid an interpretation which will make a contract extraordinary, harsh, unjust, or inequitable." (Strong v. Theis (1986) 187 Cal.App.3d 913, 920.)
Terms may be implied if necessary to make a contract reasonable regarding matters to which the contract does not manifest a contrary intention. (§ 1655.) "[A] contract includes not only the promises set forth in express words, but, in addition, all such implied provisions as are indispensable to effectuate the intention of the parties and as arise from the language of the contract and the circumstances under which it was made." (Sacramento Navigation Co. v. Salz (1927) 273 U.S. 326, 329.) " 'The supplying of an omitted term is not technically interpretation, but the two are closely related; courts often speak of an "implied" term. . . . [¶] . . . The parties to an agreement may entirely fail to foresee the situation which later arises and gives rise to a dispute; they then have no expectations with respect to that situation, and a search for their meaning with respect to it is fruitless. Or they may have expectations but fail to manifest them, either because the expectation rests on an assumption which is unconscious or only partly conscious, or because the situation seems unimportant or unlikely, or because discussion of it might be unpleasant or might produce delay or impasse. [¶] . . . [¶] . . . Sometimes it is said that the search [for an omitted term or omitted meaning] is for the term the parties would have agreed to if the question had been brought to their attention. Both the meaning of the words used and the probability that a particular term would have been used if the question had been raised may be factors in determining what term is reasonable in the circumstances. But where there is in fact no agreement, the court should supply a term which comports with community standards of fairness and policy rather than analyze a hypothetical model of the bargaining process.' " (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 852, italics added, citing Rest.2d Contracts, § 204, coms. a, b and d, pp. 97-98.) However, "[a] court may find an implied contract provision only if (1) the implication either arises from the contract's express language or is indispensable to effectuating the parties' intentions; (2) it appears that the implied term was so clearly within the parties' contemplation when they drafted the contract that they did not feel the need to express it; (3) legal necessity justifies the implication; (4) the implication would have been expressed if the need to do so had been called to the parties' attention; and (5) the contract does not already address completely the subject of the implication." (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1222.)
C
Section 18(D) of the MSA provided:
"Husband hereby voluntarily elects to maintain Wife as the beneficiary of 21.37% of the [SBP] for so long as he is required to pay her a portion of his military retired pay. This election is contingent upon Husband's ability to name the beneficiary of his choosing as to the balance (78.63%) of the SBP benefits. Wife shall reimburse Husband monthly for 21.37% of the cost of the SBP which will be deducted from Husband's military retirement pay. Wife's failure to pay said sum to Husband within 14 days of Husband's written demand therefore . . . will allow Husband to irrevocably delete Wife from said beneficiary status." (Italics added.)Husband argues his obligation to Wife under that provision was "contingent" on his ability to name another beneficiary (e.g., his new wife) as to the remaining 78.63 percent and he subsequently learned that he could name only one beneficiary. Because when he named his new wife as a 78.63 percent beneficiary the military deleted Wife as an SBP beneficiary, Husband argues that under the MSA's contingency provision he owes Wife no further obligation regarding the SBP or other death benefits.
Based on our review of the language of section 18(D) of the MSA, we conclude it is ambiguous regarding whether Husband owes Wife any obligation after he chose to name his new wife as a 78.63 percent beneficiary of the SBP and, as a result, Wife was deleted by the military as an SBP beneficiary. Husband agreed in the MSA to elect to maintain Wife as a 21.37 percent SBP beneficiary "for so long as he is required to pay her a portion of his military retired pay." Although the MSA provided that agreement was "contingent" on his ability to name another beneficiary as to the remaining 78.63 percent, it did not provide for what was to happen to Wife's 21.37 percent beneficiary interest in the event Husband named another person as a 78.63 percent beneficiary and, as a result, the military deleted Wife entirely as an SBP beneficiary. Because the parties did not expressly provide for what was to occur in that event, we look to whether the MSA's language is reasonably susceptible to two different constructions. Based on our review of the MSA's language and the parties' undisputed extrinsic evidence, we conclude the MSA is ambiguous regarding what was to occur in that event. One reasonable construction is that proposed by Husband—that he owed Wife no further obligation to continue Wife as an SBP beneficiary or otherwise provide her with benefits on his death. The other reasonable construction is that generally proposed by Wife—that if Husband could not name two SBP beneficiaries and in effect deleted Wife as a beneficiary by naming his new wife as a beneficiary, Husband nevertheless owed Wife an obligation to name her as a beneficiary of a substitute death benefit plan or policy (e.g., via an insurance policy on his life) reasonably equivalent to her terminated SBP beneficiary interest.
Wife's failure for 13 years to pay him the monthly premium for her 21.37 percent SBP beneficiary interest does not show she understood she had no interest in it or to a substitute plan or policy. Rather, her failure to make payments can reasonably be explained by Husband's failure to notify her of the amounts due and/or his failure to notify her that she had been deleted as an SBP beneficiary. As Wife notes, section 9 of the MSA required Husband to notify her in writing when her liability for or payment of any obligation (e.g., for her SBP beneficiary interest) is terminated or reduced. Because Husband never notified Wife that she no longer owed any payments to him for her SBP interest because she was no longer was a beneficiary, we cannot presume Wife intended that Husband have no obligation whatsoever if her SBP beneficiary interest was terminated on his naming his new wife as an SBP beneficiary.
Because none of the extrinsic evidence cited by Husband (or Wife) is disputed or involves credibility determinations, we independently decide how the ambiguous MSA language should be construed under the applicable principles of contract interpretation
discussed above. In so doing, we conclude the trial court's interpretation of the ambiguous MSA language is the most reasonable and just interpretation. (§ 1643; Edwards v. Arthur Andersen LLP, supra, 44 Cal.4th at pp. 953-954; Richeson v. Helal, supra, 158 Cal.App.4th at p. 277; City of El Cajon v. El Cajon Police Officers' Assn., supra, 49 Cal.App.4th at p. 71; Roden v. AmerisourceBergen Corp., supra, 186 Cal.App.4th at p. 651; Strong v. Theis, supra, 187 Cal.App.3d at p. 920.) It would be both unjust and unreasonable for Husband to agree to elect and maintain Wife as a 21.37 percent SBP beneficiary pursuant to the MSA, while allowing him to in effect avoid that obligation (or any substitute obligation) by subsequently naming his new wife as an SBP beneficiary as to the remaining 78.63 percent and thereby causing Wife's deletion as an SBP beneficiary and divestment of her interest in benefits on Husband's death. Absent an express provision showing a contrary intent, we conclude the MSA should be reasonably interpreted as requiring Husband to provide Wife with a source of benefits equivalent to her share of his retirement pay on his death, whether as an SBP beneficiary or by a substitute plan or policy. Although Husband had the right to name his new wife as a 78.63 percent SBP beneficiary, his action in so doing (and its effect in deleting Wife as an SBP beneficiary) did not relieve him of his obligation under the MSA to provide Wife with a source of income on his death reasonably equivalent to her divested 21.37 percent SBP beneficiary interest.
For example, Wife submitted a declaration of a financial consultant showing the present-day value of her share of Husband's retirement pay (i.e., $589.17 per month) was $97,763. Because Husband did not provide any evidence to refute that amount, that extrinsic evidence was undisputed.
Furthermore, we conclude the trial court properly supplied an implied term of the MSA to clarify the ambiguous MSA language and provide a reasonable term necessary to effect its purpose. (§ 1655; In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1222; Binder v. Aetna Life Ins. Co., supra, 75 Cal.App.4th at p. 852.) The trial court supplied the implied term that Husband was required by the MSA, as adopted by the judgment, to provide that on termination of Wife's 21.37 percent SBP beneficiary interest he must provide her (at her expense) with an interest in a plan or policy that provides a source of income on his death in an amount reasonably equivalent to the terminated SBP beneficiary interest. Each of the five requirements for providing an implied term is satisfied. First, the implied term is indispensable to effectuating the parties' intentions. (In re Marriage of Corona, at p. 1222.) Without providing Wife with that substitute interest, Wife would not have any source of income on Husband's death in an amount reasonably equivalent to her former 21.37 percent SBP beneficiary interest. Based on the entire MSA, we infer the parties' intent was to provide Wife with a source of income on Husband's death reasonably equivalent to her share of his monthly retirement pay during his lifetime. Second, that implied term was within the parties' contemplation when they entered into the MSA because they did not feel a need to express it in the MSA. (Ibid.) We believe it would be an unreasonable construction of the MSA to wholly omit any source of income for Wife on Husband's death merely because the parties did not know, or anticipate, that his naming of his new wife as an SBP beneficiary would in effect delete Wife as an SBP beneficiary. We believe the parties intended that Husband would provide Wife with a source of income on his death whether that source was through the SBP or alternative source (e.g., life insurance policy). Third, legal necessity justifies the implied term. (Ibid.) Absent the implied term, there would be uncertainty regarding the nature and extent of Husband's substitute obligation on his naming his new wife as an SBP beneficiary and resultant deletion of Wife as an SBP beneficiary. The implied term is necessary to effectuate the parties' intent. Fourth, we conclude the parties would have expressed the implied term if the need to do so had been brought to their attention. (Ibid.) Finally, the MSA does not already completely address the subject of the implied term. (Ibid.) The express terms of the MSA do not specifically provide for the contingency when Husband names his new wife as an SBP beneficiary and thereby in effect deletes Wife as an SBP beneficiary. Therefore, the implied term is necessary to provide for that contingency and what should occur on Wife's deletion as an SBP beneficiary.
We conclude the trial court correctly concluded Husband was obligated under the MSA, incorporated into the judgment, to provide Wife, on her termination as an SBP beneficiary, with a substitute plan or policy providing her (at her expense) with a source of income on Husband's death in an amount reasonably equivalent to her terminated 21.37 percent SBP beneficiary interest. The trial court properly supplied the implied term requiring Husband, as the insured, to cooperate in obtaining a term life insurance policy in the sum of $100,000 with Wife being named as the sole beneficiary (but at her cost) to put her in the same position she would have been in under the terms of the MSA and the judgment had the military not prevented her from continuing as an SBP beneficiary on Husband's naming his new wife as an SBP beneficiary.
Because the parties did not, either in the trial court or on appeal, address the question whether Wife has an insurable interest in Husband's life, we do not address that question. In the event that issue becomes a practical one in the future (e.g., a denial by an insurance company of Wife as a beneficiary of an insurance policy on Husband's life), we leave it to the trial court to resolve that question in the first instance pursuant to its continuing jurisdiction should either party seek modification of the court's order.
II
Breach of MSA and Relief Awarded
Husband contends the trial court erred by finding he breached the MSA (and therefore violated the judgment) and awarding Wife relief. He summarily argues that because the military, not he, deleted Wife as an SBP beneficiary, he did not breach his obligations under the MSA, as incorporated into the judgment, and therefore the trial court should not have awarded Wife the relief it did.
However, based on the trial court's proper interpretation of the MSA and its provision of the implied term, as discussed above, we conclude the trial court correctly found Husband breached his obligation under the MSA to provide Wife with a source of income on his death in an amount reasonably equivalent to her share of his retirement pay and her 21.37 percent SBP beneficiary interest. Although Husband may not have directly deleted Wife as an SBP beneficiary when he named his new wife as an SBP beneficiary, he in effect caused the military to terminate Wife's interest as an SBP beneficiary when he named his new wife as an SBP beneficiary. The trial court correctly found Husband breached his obligation to provide Wife with a source of income on his death either as a beneficiary of the SBP or of a substitute plan or policy (e.g., life insurance policy).
Because the parties do not dispute the issue, we presume the military deleted Wife as an SBP beneficiary based on its rule or regulation allowing only one SBP beneficiary.
III
Affirmative Injunction
Husband contends the trial court erred by awarding Wife an affirmative injunction that is statutorily precluded. He argues sections 3390 and 3423 preclude the injunctive relief awarded by the court.
A
Section 3390 provides in pertinent part: "The following obligations cannot be specifically enforced: [¶] . . . 3. [a]n agreement to perform an act which the party has not power lawfully to perform when required to do so; [or] [¶] 4. [a]n agreement to procure the act or consent of . . . any other third person . . . ." Husband argues that pursuant to this statute, the trial court could not order him to maintain Wife as an SBP beneficiary because he did not have the power to require the military to allow him to name two SBP beneficiaries. However, the court did not order him to do so. Rather, it found that because Husband named his new wife as an SBP beneficiary and thereby caused the military to terminate Wife as an SBP beneficiary, he was required to cooperate in obtaining a term life insurance policy as an insured with Wife as a beneficiary (at her expense). (Cf. Johnson v. Pogue (Miss. 1998) 716 So.2d 1123, 1131.) The court's order did not require him to do any act not within his lawful power to perform or require him to procure the act or consent of a third person (e.g., military). (§ 3390.)
B
Section 3423 provides in pertinent part: "An injunction may not be granted: [¶] . . . [¶] (e) [t]o prevent the breach of a contract the performance of which would not be specifically enforced . . . ." Husband argues the trial court's order violates that statute because although the court recognized he could not name Wife as an SBP beneficiary, it ordered him to provide her with alternative performance of the MSA by cooperating in obtaining a life insurance policy naming her as a beneficiary. However, Husband does not cite any apposite cases showing, or otherwise persuade us, that the court's order violates section 3423, subdivision (e). The court's order did not require him to specifically perform an act that could not be specifically enforced (i.e., require the military to allow him to name two SBP beneficiaries).
Likewise, the court's order did not require him to submit to an unlimited number of medical examinations for insurance applications. Rather, the court reserved jurisdiction to limit the number of such examinations should Wife request an unreasonable number.
IV
Constitutional Right to Privacy
Husband contends the trial court erred by awarding an injunction that violates his state constitutional right to privacy. He argues his privacy right is violated by the court's order requiring him to submit to "a potentially unlimited number of physical examinations—which include the giving of blood—and to provide his private medical information to a potentially unlimited number of insurance carriers, as selected in [Wife's] sole discretion."
Because Husband does not cite or rely on any federal constitutional privacy provisions or cases, we focus solely on his right to privacy under the California Constitution.
Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, . . . and pursuing and obtaining safety, happiness, and privacy." (Italics added.) In support of his privacy right argument, Husband cites Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, in which the California Supreme Court stated: "[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. [¶] Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. [Citations.] Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law." (Id. at pp. 39-40.) "Hill and its progeny further provide that no constitutional violation occurs, i.e., a 'defense' exists, if the intrusion on privacy is justified by one or more competing interests." (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287-288.) "The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests." (Hill, at p. 40.)
For purposes of this discussion, we assume arguendo, but do not decide, that the principles set forth in Hill and its progeny applicable to civil actions between private parties for an alleged violation of the state constitutional right to privacy are also applicable to orders issued by trial courts to the extent they impact privacy rights. Based on that assumption, we conclude the trial court's order in this case did not violate Husband's state constitutional right to privacy. The trial court ordered Husband to cooperate in applying for term life insurance as an insured with Wife named as the sole beneficiary. The order states: "[Husband] is to forthwith start getting insurance lined up. By the end of October he's to have made arrangements to get a physical and all that he has to do to see if he can get insurance back in place. [Wife's] counsel can provide [Husband] with any number of carriers and [Husband] is ordered to cooperate with every single carrier that is provided to him, and to do all that he has to do, such as physicals and signing paperwork. . . . [T]he Court reserves jurisdiction over the issue of insurability and reserves jurisdiction over issues pertaining to whether there should be a cap put on her liability for the Judgment. The Court also reserves jurisdiction over the number of insurance carriers to which [Husband] will have to submit to a physical exam and all extraordinary issues."
Although we do not decide that issue, we nevertheless express our doubt that the same criteria apply when addressing the effect of a trial court order on an individual's privacy rights.
We presume the order's requirement that Husband cooperate in obtaining insurance, including submitting to physical examinations and providing medical information, affects his legally protected privacy interest and his reasonable expectation of privacy in the circumstances. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 39-40.) Furthermore, although we have our doubts, we presume, as Husband asserts, that order constitutes a serious invasion of his privacy. (Id. at p. 40.) Nevertheless, we conclude this presumed serious invasion of Husband's privacy is justified by the countervailing interest of Wife to enforcement of Husband's obligations under the MSA as incorporated into the judgment. Husband took action (i.e., by naming his new wife as an SBP beneficiary), which caused Wife to be deleted as an SBP beneficiary. Husband therefore had an obligation to provide Wife with a substitute for that loss of income on Husband's death (i.e., by providing Wife with a $100,000 term life insurance policy at her expense). Although Husband may suffer some invasion of his privacy in obtaining that insurance for Wife (e.g., during physical examinations and by providing private medical information to insurance companies), that intrusion on his privacy is justified by Wife's right to enforcement of her rights under the MSA and the judgment.
Husband complains the court's order allows Wife to require him to undergo an unlimited number of physical examinations and provide his private medical information to an unlimited number of insurance companies. Based on his interpretation of the order, Husband argues there are less intrusive alternatives to effect the court's enforcement of the MSA and its judgment, presumably by limiting the number of physical examinations and insurance applications. However, the trial court contemplated the possible burden on Husband and/or undue intrusion into Husband's privacy and expressly provided for its continuing jurisdiction to decide whether a limit should be imposed. The order states: "The Court also reserves jurisdiction over the number of insurance carriers to which [Husband] will have to submit to a physical exam and all extraordinary issues." In the event Husband's privacy right becomes unduly invaded by excessive physical examinations and/or insurance applications (with release of private medical information), the trial court, on a proper motion by Husband, presumably will limit the intrusion on Husband's privacy right to that reasonably warranted to enforce the MSA and the judgment. Therefore, we conclude the trial court's order, as currently stated, does not violate Husband's state constitutional right to privacy.
V
Attorney Fee Award
Husband contends the trial court erred by awarding Wife $12,000 for attorney fees incurred in obtaining the order. He argues the court erred by relying on Family Code sections 2030 and 2032, rather than on the MSA's provision for awarding attorney fees to the prevailing party "irrespective of either party's need or ability to pay at the time of such hearing, and irrespective of any fee provision of the Family Code of the State of California."
A
Wife's initial OSC and companion OSC requested awards of attorney fees because Husband is responsible for the arrears in paying Wife her share of his retirement pay. Husband opposed her attorney fee requests, arguing Wife's "basis for bringing this motion is unfounded (and bordering on bad-faith), and I am acting reasonably in opposing this motion." At the hearing on Wife's OSC's, her counsel reminded the court he had "the issue of fees . . . under [Family Code section] 2030." He stated the total amount of the fees he billed Wife in this case was $19,076.26. He argued: "I believe under the circumstances that under [Family Code section] 2030, [Wife is] entitled to a contribution to fees." At the hearing, the trial court awarded Wife attorney fees, explaining:
"[Family Code section] 2030 fees. The court finds that [Husband's] income gross is in excess of [$]6,000 a month. [Wife's] income hovers around [$]1400 a month. His income is four to five times more than hers. Since there's no support order that is in place, there's no equalization of these incomes. His income just outstrips her income by three times, almost four times, I guess.Husband did not object to the award based the court's use of the wrong standards in determining whether to award Wife attorney fees and, if so, in what amount. In awarding Wife attorney fees, the court stated in its written order:
"Her expenses, [$]19,000 in round numbers, in attorney fees in this matter. The court has taken into consideration the complexity of the litigation. The court made findings about their incomes. Any other relevant findings as to fees under [Family Code section] 4320; in other words, sort of an overlapping analysis, . . . his [expenses] are [$]9300 a month. Her expenses are significantly less, [$]1850 a month. I said [$]1400. Really it's $500 in salary and [$]1100 in public assistance. That's [$]1600 in round numbers for her in materials of income. [$]12,000 in fees [are awarded]."
"6. On the issue of attorneys' fees, the Court finds that [Husband's] income exceeds that of [Wife] and that there is no existing support order to equalize the income of the parties. The Court also considers the complexity of the litigation, the amount of fees incurred by [Wife], and the income and expenses of both parties. The Court orders [Husband] to contribute to [Wife's] fees in the amount of $12,000, which shall be paid by [Husband] to [Wife] within 60 days. . . ."
B
Wife asserts Husband has waived or forfeited his contention by not raising it below in the trial court. The record shows that Husband did not at any time argue in the trial court, whether in his opposition papers or at the OSC hearing or otherwise, that Wife's attorney fees request should be determined pursuant to the MSA's "prevailing party" attorney fees provision, rather than pursuant to Family Code section 2030 and related Family Code fee provisions.
In Children's Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, the court concluded the appellant had waived the right to challenge the attorney fees award based on its use of the wrong standard because it had not raised that issue below in the trial court. (Id. at pp. 776-777.) Bontá stated:
"[T]he theory was never presented to the trial court, either in a motion to vacate . . . , in the memorandum in opposition to the award of attorney fees [it] submitted to the trial court, orally at the postjudgment hearing conducted by the trial court on the issue ofBecause Husband did not raise his MSA "prevailing party" attorney fee theory or argument in opposing Wife's request for attorney fees in the trial court, we conclude he has waived or forfeited that argument for purposes of appeal. Therefore, we do not address its merits.
fees, or in any other way. Had it been presented, and had the court agreed, the problem could easily have been rectified, which may be the reason the argument was never raised. 'An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.' [Citation.] It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial." (Children's Hospital & Medical Center v. Bontá, supra, 97 Cal.App.4th at p. 776; see also Planned Protective Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 12-13 [appellant waived attorney fees theory or argument by not raising it in trial court].)
To the extent Husband argues we nevertheless may have discretion to consider this contention, we decline to exercise that discretion in the circumstance of this case. (Cf. Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167; Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 1, overruled on another ground in Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 183.)
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DISPOSITION
The order is affirmed. Wife is entitled to costs on appeal.
McDONALD, J. WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.