Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and orders of the Superior Court of Orange County, No. 09D001057, Michael J. Naughton, Judge.
Channels Law Offices and Walter D. Channels for Appellant.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Respondent.
MOORE, J.
Even lawyers sometimes suffer buyer’s remorse. Here, a lawyer sought to short-circuit his own marital dissolution proceedings by preparing a handwritten marital settlement agreement intended to be a completely confidential resolution of all the marital affairs of himself and his wife. Curiously, he intended the settlement agreement to be kept confidential even from the court.
But a marital dissolution does not come about by itself. The wife eventually hired a lawyer of her own to obtain a decree of dissolution and enforce the settlement agreement. Of course, her lawyer, in moving to enforce the settlement agreement on her behalf, filed a copy of it with the court.
He also spruced up the handwritten financial disclosure the wife had made around the time the parties entered into the settlement agreement, by having a more complete, formal disclosure prepared. Unfortunately, there were a few clerical errors in the formal disclosure that made it appear to the husband that the wife had lied to him about assets on hand at the time of settlement. Even after explanation was made, the husband wanted out. It was too late.
Substantial evidence supports the trial court’s implied finding that the wife’s disclosure about cash on hand at the time of settlement was correct. Even if the amount of cash on hand had been more than the wife represented, the husband has not shown that she would have been entitled to “keep” the overage to his disadvantage. Consequently, the husband has not met his burden to show that he was prejudiced by the failure of the parties to exchange final declarations of disclosure in advance of their entering into the settlement agreement. Finally, we reject the husband’s various arguments concerning the intent of the parties and the purported defects in the settlement agreement. We affirm.
I
FACTS
A. Background:
(1) Introduction
Cedric and Mitchellene Channels were married on December 4, 1984. At the time of marriage, Cedric was an attorney with a home in Three Arch Bay in Laguna Beach. Cedric had practiced law since 1972 and was a certified workers’ compensation attorney. The parties had one child together, in 1995. Mitchellene had been a waitress prior to marriage and was primarily a homemaker after marriage, although she did odd jobs at Cedric’s office from time to time. Cedric put Mitchellene on the title to his house early in the marriage.
“Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a lack of respect. [Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
Cedric saw his business begin to decline after the workers’ compensation laws changed in 2004. He and Mitchellene feared they would not be able to maintain their lifestyle and sold the house in June 2008, netting $3,120,598.32 from the sale.
The two separated on February 4, 2009, when Mitchellene was in her early 50’s and Cedric was in his mid-60’s. The next day, Mitchellene, through legal counsel, filed a petition for dissolution of marriage.
(2) Handwritten settlement agreement
On February 16, 2009, Cedric and Mitchellene signed a handwritten settlement agreement. The settlement agreement stated that the parties had agreed to settle all issues pertaining to the dissolution, including all issues known or unknown. The settlement agreement addressed spousal support, child support and child custody, insurance, medical and dental expenses, existing debts, confidentiality, and the division of the proceeds of the house. Although the settlement agreement purported to resolve all issues between the parties, it did not address the division of any asset other than the proceeds of the house. It stated that those proceeds would be divided 50/50. The settlement agreement also stated that Cedric would pay Mitchellene a lump-sum of $450,000 for spousal and child support, with $200,000 of that amount being allocated to child support. It further provided that the parties were settling all issues “in pro per” and that the settlement agreement was not to be disclosed “to anyone including... attorney[s]....”
(3) Dissolution proceedings
On February 25, 2009, a substitution of attorney was filed, wherein Mitchellene substituted herself, in propria persona, in place of her attorney of record. The first week of March 2009, the parties exchanged financial disclosure statements. Cedric’s disclosure statement noted approximately $2,860,000 in proceeds remaining from the sale of the house, about $86,000 in motor vehicles, and various other items whose value was designated only with question marks. Mitchellene’s disclosure statement reflected 12 savings accounts totaling $2,860,587, plus $155,000 in motor vehicles, and $30,000 as the cash surrender value of a life insurance policy.
At the end of April 2009, Mitchellene filed another substitution of attorney, this time substituting Gary S. Gorczyca as her attorney of record in place of herself. His office prepared more detailed financial disclosure statements for Mitchellene. On June 25, 2009, Mitchellene signed two versions of a schedule of assets. One version showed total assets of $3,718,059, including savings and checking accounts, firearms, motor vehicles, life insurance, stocks and bonds, and an IRA. The other version reflected total assets of $3,486,109. It appears the former version included a $231,950 U.S. Bank money market account that the latter version did not.
On October 7, 2009, Mitchellene filed a Code of Civil Procedure section 664.6 motion to enforce the settlement agreement and enter partial judgment thereon. She requested that child and spousal support be ordered, and that property be divided, as the parties had agreed. She also requested that the court reserve “jurisdiction over all remaining issues, including but not limited to child custody and visitation; characterization, valuation and disposition of all remaining assets not disposed of in this Judgment; income tax liability; and attorney fees and costs.”
Also on October 7, 2009, Mitchellene filed an order to show cause in which she sought temporary spousal and child support and an award of attorney fees. She attached a declaration wherein she stated: “I am a stay-at-home mother. I have spent the last several years home-schooling our son.... I quit my job as a waitress at Coco’s at [Cedric’s] insistence just before I married him in 1984 in order to care for his daughter. Following our marriage, I worked very sporadically for [Cedric] in his law firm doing ‘odds and ends’. While I hope to eventually reenter the job market, ... as yet, [I] am still completely financially dependent on [Cedric]. Since we separated, [Cedric] has not provided me with support. Instead, I have had to tap into community funds in the form of proceeds from our former family residence in order to meet my living expenses.”
Mitchellene’s final declaration of disclosure was dated October 28, 2009. The final declaration of disclosure showed total assets of $3,599,758, including savings and checking accounts, stocks and bonds, firearms, and an IRA.
In his October 29, 2009 responsive declaration to the order to show cause, Cedric objected to Mitchellene’s various requests. Cedric said that when he saw the discrepancies between Mitchellene’s March 2009 disclosure statement showing total assets of $3,045,587 and the June 2009 disclosure statement reflecting total assets of $3,718,059, he realized that Mitchellene had previously lied to him about their cash assets. He stated if he had known that Mitchellene “was going to keep an extra $600,000.00 over and above the cash [he] was giving her out of [his] share, [he] never would have agreed to [the] settlement.” He also said he would never have entered into the settlement agreement had he known either that the spousal support and child support “buy outs” would be modifiable or that Mitchellene would not keep the settlement agreement confidential.
In his points and authorities in support of his opposition to Mitchellene’s motion to enforce the settlement agreement, Cedric argued the settlement agreement violated Family Code sections 2105 and 2106 pertaining to required financial disclosures, was vague and ambiguous, and would unduly benefit Mitchellene. In addition, he asserted that the settlement agreement was rescindable because of his mistakes of fact—the amount of money on hand, and law—the modifiability of spousal and child support awards and the ability of Mitchellene to enforce the settlement agreement in a public forum.
In her reply declaration, Mitchellene asserted that Cedric’s claimed lack of knowledge with respect to family law matters was unsupportable. She noted that he had engaged in the practice of law for 37 years and had held himself out as a family law practitioner. In support of the latter allegation, she attached copies of printouts from websites wherein Cedric represented that he practiced family law. Mitchellene also pointed out that Cedric could not have been clueless about the amount of the proceeds from the sale of the residence inasmuch as he had signed the various real estate documents involved, including the sellers’ settlement statement clearly showing the net proceeds of the sale.
Where the financial disclosures were concerned, Mitchellene declared that Cedric had approached her about working out the settlement agreement. She said that, “[t]hereafter, [he] advised me we both had to exchange ‘disclosure documents.’ He told me how we completed them didn’t matter as it was just a formality.”
Mitchellene stated that after she hired Attorney Gorczyca, his office prepared an updated financial disclosure. She explained that the June 25, 2009 disclosure statement showing $3,718,059 in total assets contained several errors that made it appear there was more cash than in fact there was. She noted that two accounts, one in the amount of $231,950 and one in the amount of $203,664, each had inadvertently been listed twice. Mitchellene also represented that the disclosure statement reflected the opening balances of two accounts, when it should have shown the closing balances, which were zero. When the cash on hand as shown in the disclosure statement in question was adjusted to account for these errors, the correct amount of cash on hand on June 25, 2009 was $2,528,000, an amount less than the amount on hand in March 2009, not more. Mitchellene said that the cash making up the difference between the amount on hand in March and the amount on hand in June was spent on living expenses and attorney fees.
Finally, Mitchellene bristled at the assertion that she had breached the confidentiality clause of the settlement agreement by filing the settlement agreement with the court. She suggested that as an attorney with 37 years of experience Cedric had to know that a stipulated agreement was required to be filed with the court.
On November 20, 2009, Cedric filed an order to show cause seeking rescission of the settlement agreement. The grounds were largely the same as those stated in his opposition to Mitchellene’s motion to enforce the settlement agreement. Mitchellene filed opposition.
At a hearing on January 11, 2010, the parties stipulated to have a forensic accountant, Mr. Zamucen, determine the amount of proceeds from the sale of the house remaining on hand in February 2009, at the time the settlement agreement was signed. In addition, Cedric stipulated that if the accounting showed that the amount on hand at the time of the settlement was approximately $2.8 million, then he would further stipulate that the settlement agreement was valid.
On February 18, 2010, Mitchellene filed a declaration of attorney in support of her motion to enforce the settlement agreement. Attached to the declaration was a copy of a report prepared by accountant Robert Plante of Zamucen & Curren, LLP. According to the attorney declaration, the accountant’s report showed that it was correct the parties had approximately $2.8 million in cash on hand in February 2009, and further, that the June 25, 2009 disclosure statements contained the clerical errors Mitchellene had previously explained.
The court granted Mitchellene’s motion to enforce the settlement agreement and denied Cedric’s motion to rescind it. On February 26, 2010, the court entered a partial judgment in accordance with the terms of the settlement agreement and reserved “jurisdiction over all remaining issues, including but not limited to child custody and visitation; characterization, valuation and disposition of all remaining assets not disposed of in [the] Judgment; income tax liability; and attorney fees and costs.” That same date, it also entered judgment of dissolution as to status.
Cedric passed away two days later. Cedric’s daughter, Sarah O’Connor, and Mitchellene stipulated that the dissolution proceedings would continue, with Sarah acting as Cedric’s successor-in-interest. Sarah appeals.
For convenience, we will refer to the arguments Sarah makes on behalf of Cedric as being Cedric’s arguments.
II
DISCUSSION
A. Statement of Decision/Standard of Review:
Citing Family Code section 2127, Cedric argues that the court erred in failing to issue a statement of decision upon his request, and that this error requires a reversal. He claims his attorney requested a statement of decision at the February 26, 2010 hearing. At that hearing, the court expressed its intention to grant Mitchellene’s motion to enforce the settlement agreement and to deny Cedric’s motion to rescind it. Cedric’s attorney then asked: “For the record, is the court saying all of my legal arguments are without merit?” The court responded: “No. I didn’t say that. You know, I can deny this without insulting you, you know?”
The attorney’s question to the court was not tantamount to a request for a statement of decision. Consequently, the court did not err in failing to issue one.
“Where, as here, no statement of decision was requested, all intendments will favor the trial court’s ruling and it will be presumed on appeal that the trial court found all facts necessary to support the judgment.” (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 649, fn. omitted.) Furthermore, we apply the substantial evidence standard to the review of a trial court’s determination, on a Code of Civil Procedure section 664.6 motion, as to whether the parties entered into a binding settlement agreement. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.)
B. Mistake of Fact:
Cedric argues that the settlement agreement should be rescinded due to mistake of fact regarding the amount of money the parties had at the time they signed the settlement agreement. Whether there was a mistake of fact is a question the trial court addressed and determined.
At the February 26, 2010 hearing, the court stated: “Prima facie, we have an agreement that was signed by both parties. And there wasn’t any suggestion that there was any duress or any fraud or anything. There was a suggestion that there was a mistake—a mutual mistake of fact that... would... be grounds to rescind the agreement....” It also stated that the burden of proof was on Cedric to show there was a mistake of fact. The court concluded that the allegations of mistake of fact had “not panned out, ” and that there had been no offer of proof to show that the parties were mutually mistaken or that there was any unaccounted for money.
Inasmuch as the court granted the motion to enforce the settlement agreement and denied the motion to rescind it, we presume, consistent with the above-quoted statements, that the trial court ultimately found there was no mistake of fact as to whether the parties had approximately $2.8 million in cash at the time they entered into the settlement agreement. (In re Marriage of Ditto, supra, 206 Cal.App.3d at p. 649.) As we shall show, there is substantial evidence to support this implied finding.
The report of accountant Robert Plante addressed the discrepancies between Mitchellene’s disclosure statements of March and June 2009. It contained, inter alia, a summary of conclusions, a comparison of the three disclosure statements, and copies of account statements from 16 banks and other entities. The summary confirmed Mitchellene’s prior representations that the June 2009 disclosure statement showing total assets of $3,718,059 contained two duplicate entries and improperly reflected balances on hand in accounts that had been closed. It also confirmed that the difference between the June 2009 disclosure statement showing total assets of $3,718,059 and the June 2009 disclosure statement reflecting total assets of $3,486,109 was that the latter had made a correction serving to eliminate one of the duplicate entries, in the amount of $231,950. The summary concluded that when adjusted for errors, the June 2009 disclosure statements showed about $2.3 million in liquid assets then on hand.
In other words, while the June 2009 disclosure statements had caused Cedric to believe that Mitchellene had hidden $600,000 from him in February 2009, the accountant’s analysis showed that there was no additional $600,000 on hand in June 2009. Clerical error in putting the June 2009 disclosure statements together had given rise to unnecessary concern. The accountant’s report gave no reason to believe that there had been any more than $2.8 million in cash on hand in February 2009, at the time the parties entered into the settlement agreement. The accountant’s report and supporting documentation provided substantial evidence to support the implied finding that there was no mistake of fact as to the amount of cash on hand in February 2009.
Faced with this evidence, Cedric argues on appeal that the trial court abused its discretion in granting the motion to enforce the settlement agreement because it failed to consider Mitchellene’s October 28, 2009 final declaration of disclosure. That disclosure showed total assets on hand of $3,599,578 as of that date. Cedric maintains that this evidence was uncontradicted, and showed that Mitchellene must have lied when she made her representations as to the amount of cash on hand in February 2009.
There are several problems with this argument. First, assuming the final declaration of disclosure was correct as to the total value of assets on hand in October 2009, it was not proof of either the total value of assets, or the total amount of cash, on hand in February 2009. Second, we do not know whether the trial court did or did not consider the final declaration of disclosure. Even if it did not, as we have already indicated, the accountant’s analysis and supporting documentation provided substantial evidence to support the implied finding that there was approximately $2.8 million in cash on hand in February 2009. Third, Cedric has not shown that the court’s ruling resulted in a miscarriage of justice.
Cedric simply asserts that the trial court decided the matter based on the parties’ declarations and their exhibits, including the accountant’s report. In support of this assertion, he cites a 20-page expanse of the reporter’s transcript. However, it is Cedric’s obligation to provide a pinpoint page reference to show that the court actually excluded the October 2009 final declaration of disclosure from consideration. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) In any event, as we note above, whether the court did or did not consider the final declaration of disclosure does not control the outcome of this case.
As we have stated previously, article VI, section 13 of our state Constitution mandates “that no judgment may be set aside or new trial granted unless there has been a miscarriage of justice. [Citations.]” (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 526.) But there is no apparent miscarriage of justice here.
Cedric asserts that Mitchellene’s final declaration of disclosure shows that the parties had at least $554,171 more in February 2009 than Mitchellene disclosed at the time. He says that he “would have been entitled to at least half of that amount or $277,085.50” and “would clearly have obtained and reached a result more favorable but for the error.” He does not explain his reasoning.
In their settlement agreement, Cedric and Mitchellene agreed to divide the proceeds of the sale of the house 50/50. So, to the extent there may be an additional $554,171 or so in assets, if those assets are proceeds of the sale of the house, then Cedric is entitled to his half. However, the parties’ settlement agreement was patently incomplete, for it failed to address the division of any other assets. For example, it alluded to insurance and repair bills associated with certain vehicles, but it did not address which party would take title to which vehicle.
The court, in the partial judgment about which Cedric complains, reserved jurisdiction “over all remaining issues, including but not limited to... characterization, valuation and disposition of all remaining assets not disposed of in this Judgment....” So, to the extent there may be an additional $554,171 or so in assets, if those assets are not proceeds of the sale of the house, then Cedric may move the court to divide those additional assets and award him his due share. In short, if Cedric is correct that there are greater assets than initially believed, either he is entitled to his share as part of the assets divided under the settlement agreement and partial judgment, or he is entitled to seek an award of his share as part of the previously undivided assets. Either way, Cedric is not prejudiced.
C. Family Code Section 2105 Disclosure Requirements:
Family Code section 2105, subdivision (a) provides in pertinent part: “Except by court order for good cause, before or at the time the parties enter into an agreement for the resolution of property or support issues..., each party... shall serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council, unless the parties mutually waive the final declaration of disclosure.”
Cedric reminds us that the parties executed the settlement agreement on February 16, 2009, but that Mitchellene did not serve her final declaration of disclosure upon him until October 28, 2009. He says that she failed to comply with the requirements of Family Code section 2105, subdivision (a), that he did not waive compliance with that statute, and that the court did not have good cause to eliminate the requirement of compliance.
Cedric acknowledges our opinion in In re Marriage of Steiner & Hosseini, supra, 117 Cal.App.4th 519, wherein we held “that the failure on the part of two divorcing spouses to exchange final declarations of disclosure (Fam. Code, § 2105) does not constitute a ‘get-a-new-trial-free’ card, giving either one of them the automatic right to a new trial or reversal on appeal when there is no showing of a miscarriage of justice. (Cal. Const., art. VI, § 13.)” (In re Marriage of Steiner & Hosseini, supra, 117 Cal.App.4th at p. 522.) However, he insists that he was prejudiced by the failure of Mitchellene to deliver her final declaration of disclosure before the parties signed the settlement agreement. He reiterates the claim that he would have been entitled to at least $277,085.50 more if he had known about the “extra” $554,171 in community assets not disclosed until October 2009. We have already stated why this claim does not demonstrate prejudice. We need not reiterate that discussion here.
D. Intent of the Parties:
Next, Cedric asserts that the judgment fails to reflect the intent of the parties as expressed in the settlement agreement. He claims that while the court may interpret the parties’ intent, it does not have the authority to rewrite their agreement. More to the point, Cedric contends that the judgment is not the same as the settlement agreement and that the trial court “simply added terms... it felt would make the agreement enforceable.” In making these arguments, Cedric fails to cite any particular portion of the judgment that he feels is inconsistent with the parties’ intent as expressed in the settlement agreement or any specific terms that the court added to the parties’ agreement. Consequently, his argument on the topic is deemed waived. (Niko v. Foreman, supra, 144 Cal.App.4th at p. 368; Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)
As an aside, we observe that, as Mitchellene herself notes, there are two clerical errors in the partial judgment. The settlement agreement states that $200,000 of the $450,000 lump sum payment is allocated towards child support. The partial judgment erroneously states that $250,000 of the lump sum payment is allocated towards child support and $200,000 is allocated towards spousal support. Mitchellene consents to the correction of the clerical errors. We shall instruct the trial court to correct the partial judgment on remand, to reflect that $200,000 of the lump sum payment is allocated towards child support and $250,000 is allocated towards spousal support.
E. Defective Settlement Agreement:
Finally, Cedric contends the settlement agreement is ambiguous and violates public policy. An ambiguity in the spousal support provision, he says, could make that provision modifiable, contrary to the intent of the parties. However, as Mitchellene concedes, Family Code section 4337 precludes her from seeking a modification of spousal support, because Cedric is now deceased. That statute provides in pertinent part that “the obligation of a party under an order for the support of the other party terminates upon the death of either party....” Consequently, the issue of the effect of the perceived ambiguity in the spousal support provision is moot.
Cedric also maintains that the child support provision is ambiguous. However, he fails to articulate any particular way in which it is ambiguous. Consequently, any argument on that point is deemed waived. (Niko v. Foreman, supra, 144 Cal.App.4th at p. 368; Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)
In addition, Cedric asserts that the child support provision violates public policy because it purports to be non-modifiable, therefore restricting the jurisdiction of the trial court over child support. (In re Marriage of Bereznak (2003) 110 Cal.App.4th 1062, 1068-1069.) However, the settlement agreement itself states only that the lump sum child support payment is nonrefundable. It does not state that child support can never be modified. There is a difference.
While Cedric claims that some handwritten notes appearing in the record immediately following the signed settlement agreement show that Mitchellene agreed, as part of the settlement, not to seek a modification of the child support award, he fails to cite any authority to show that these handwritten pages should be deemed to be a part of the settlement agreement. Consequently, any argument to that effect is waived. (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 648-649.)
III
DISPOSITION
The judgment is affirmed except to the extent that it erroneously reflects that $250,000 of the $450,000 lump-sum payment is allocated to child support and $200,000 is allocated to spousal support. On remand the trial court shall correct the judgment to reflect that $200,000 of the $450,000 lump-sum payment is allocated to child support and $250,000 is allocated to spousal support. Mitchellene shall recover her costs on appeal. The trial court, in its discretion, shall determine whether to award Mitchellene her attorney fees incurred on appeal.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.