Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. D488305, Thomas Ashworth, III, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
NARES, J.
In this marital dissolution proceeding Erwin J. Shustak, an attorney, appeals from a judgment entered after a trial asserting (1) the court failed to rule on his entitlement to credits for loan reimbursements and reduced retroactive spousal support; and (2) the court erred in refusing to grant Erwin relief under Code of Civil Procedure section 473, subdivision (b) (section 473(b)), based upon an alleged mistake of fact and law, from a stipulation that he entered into on the first day of trial which confirmed that several stock accounts were his wife Andrea's separate property. We affirm.
We refer to the parties by their first names as is customary in family law matters. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.) We intend no disrespect.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Erwin and Andrea married in 1980 and separated in 2004. They have one child, Scott, born September 1994. In January 2005 Erwin filed a petition for dissolution of marriage. The parties stipulated to the appointment of retired San Diego Superior Court Judge Thomas Ashworth III (Judge Ashworth) as a temporary judge for all purposes.
A. Temporary Support Award
In May 2005, by stipulated order, the trial court ordered interim support at $8,500 per month, commencing March 1, 2005. Further, that stipulated order provided, "The Court shall reserve jurisdiction over the amount and allocation of support retroactively." In that same order the parties agreed to the appointment of forensic accountant Dana Basney to determine the income available for support from Erwin's law practice, as well as to determine the value of his practice.
After receiving Basney's draft income analysis, Andrea moved to increase spousal support. In April 2006 the court issued a decision on Andrea's request, finding: "[T]he most reliable information for determining [Erwin's] income for 2005 is the information contained in Mr. Basney's January 9, 2006 final report. Since the support modification request is retroactive to March 1, 2005, the court further finds that the most relevant available period is the first eight months of 2005. Accordingly, the court finds [Erwin's] monthly cash flow available for support is a total of $41,069."
Based upon this finding, the court raised support to a total of $12,666 per month, retroactive to March 1, 2005: "Based on the above findings, the previous order of $8,500 in unallocated support is modified retroactively to March 1, 2005 and [Erwin] shall pay [Andrea] child support of $3,166 monthly and spousal support of $9,500 . . . ."
Further, the court's decision stated, "The court is aware that the structure of [Erwin's] law firm has recently undergone dramatic changes which may result in substantial changes in his income. For this reason the court retains jurisdiction to modify support retroactively to January 1, 2006when more reliable information for this year is available."
In May 2006 the court filed a written order that incorporated the court's decision. That order again stated, "The Court retains jurisdiction to modify support retroactively to January 1, 2006 when more reliable information for the year is available."
That same day, Erwin filed a motion for reconsideration on the grounds Basney had counted loans Erwin had made to an affiliated company, Professional Marketing, LLC (Professional Marketing) as income and made a number of mathematical errors that had overstated his income by more than $4,000 per month. He argued that instead of $41,069 per month, his income was actually $37,796 per month.
The court denied the motion, without prejudice to Erwin renewing the claim concerning Professional Marketing: "The motion of [Erwin] for reconsideration of the Court's Order increasing Temporary Support is denied, without prejudice to Petitioner's right, at the time of trial, to claim and prove that monies he has paid to either Gotham Marine, LLC or Professional [Marketing] are credits to which he is entitled to reimbursement from [Andrea]."
The reimbursement of monies he paid to Gotham Marine is not an issue before us on this appeal.
B. Separate Property Agreement
In 2003 the parties entered into an agreement regarding the characterization and disposition of certain monies and real property (property agreement). The agreement was prepared by attorney James Lauth, who was retained by Erwin, and was part of several several estate planning documents prepared by Lauth. In paragraph 2.2, under the heading "AGREEMENT CONCERNING CHARACTER OF PROPERTY," the property agreement stated that Erwin and Andrea agreed, "The following is separate property of ANDREA J. SHUSTAK and shall remain the separate property of ANDREA J. SUSTAK: All accounts currently in the sole individual name of ANDREA J. SHUSTAK, or in the sole individual name of ANDREA MEYER, as she is also known, including but not limited to brokerage accounts at Charles Schwab, UBS Paine Webber, Janney Montgomery and 20th Century." Similarly, the Shustak Family Trust, which was prepared by Lauth and signed by the parties at the same time, stated that the separate property of Andrea was, "All accounts currently in the sole individual name of trustor ANDREA J. SHUSTAK, or in the sole individual name of ANDREA MEYER, as she is also known, including but not limited to brokerage accounts at Charles Schwab, UBS Paine Webber, Janney Montgomery and 20th Century."
Two copies of the property agreement were sent to Erwin at his law office, and another set was sent to Erwin at the marital residence. According to Erwin, he sent the copies sent to his law office to his sister in Florida for safekeeping. According to Andrea, Erwin removed the other copy from their residence after they separated.
C. Dispute Over Character of Stock Accounts
During the pendency of this litigation, the parties disputed whether the stock accounts listed in Andrea's name were her separate property or, as Erwin contended, community property. During Andrea's deposition, Erwin, representing himself, questioned Andrea about whether she could recall signing a property agreement. Andrea testified she recalled going to the lawyer's office, but did not recall signing the document. Erwin also questioned Andrea as to whether she recalled that the stock accounts were put in her name to protect that money in case he was ever sued. Andrea agreed that was the purpose of putting the accounts in her name.
D. Subpoena to Attorney Lauth
Erwin's deposition was taken on October 30, 2006. At that time, based upon questioning by Andrea's counsel, Andrea determined the name of the attorney who prepared the parties' estate planning documents was Lauth, and Erwin provided his name and the firm name. He also testified that Lauth prepared an agreement indicating Andrea had separate property, but Andrea refused to sign the agreement. He claimed that both he and Lauth had an unsigned copy of the agreement. He also admitted consulting with Lauth about the family's estate planning documents after the parties separated.
On November 3, 2006, Andrea's attorney subpoenaed the estate planning documents from Lauth. Lauth produced his files, which contained the property agreement and the trust, to both parties. According to Erwin, he his office received the documents on December 5, 2006, and they were sent to him by overnight delivery in New York (where he was on business).
E. Erwin's Letter to Judge Ashworth
On December 6, 2006, Erwin faxed Judge Ashworth a letter. In that letter he stated, "I just came across a document, of which I had no recollection, did not have in my personal files and which has not previously been produced by either side in discovery. That document, however, significantly changes a position I have taken in my [trial] brief. As an officer of the court, I have both a moral and an ethical obligation to bring this to your Honor's attention. [¶] In 2003, [Andrea] and I retained a local attorney, James Lauth, to prepare various estate planning and other documents for us. [Andrea's counsel] recently served a subpoena on Mr. Lauth to produce his entire file relating to our marital, as well as my personal, post separation estate planning documents. Mr. Lauth called me when he received the subpoena and I instructed him to produce everything he had in his file and to provide me with a copy of all documents he was supplying in response to that subpoena. [¶] . . . [¶] In that file is a document captioned 'Property Agreement'. I did not have a copy of that document in my own files nor, apparently did [Andrea] or the issue would have been raised much earlier. I have examined the document and, although I have no specific recollection of [Andrea] and I signing it, the document is genuine and bears my signature. [¶] That document specifies that certain accounts that were titled in [Andrea's] name, which as of the date of separation, amounted to approximately $350,000.00, were to be considered [Andrea's] sole and separate property. Although the monies in that account represented earnings of [Andrea] during the tenure of our marriage; transfers into those accounts from joint accounts and my individual account, and despite the fact that all of the earnings on those accounts were reported on our joint tax returns over the years and all taxes paid out of community assets, the document does say what it says and is binding. [¶] I therefore withdraw my claim that the monies in those three accounts (accounts at Schwab, Janney Montgomery Scott and UBS Paine Webber) are community property and I hereby amend my trial brief accordingly. I [brought] this issue to the attention of your Honor as well as [Andrea's] counsel as soon as I reviewed the document and confirmed with outside counsel that the document is genuine and understood the nature of its legal effect on these proceedings." (Italics added.)
F. Trial
1. The stipulation
On December 13, 2006, the first day of trial, the parties entered into the following stipulation:
"[T]he separate property claim of [Andrea] to the Schwab account that was held in her name at date of separation and the Janney Montgomery account in her name at date of separation and the UBS Financial account held in her name at date of separation are confirmed as her separate property along with the proceeds from the sale of the Claiborne residence, including but not limited to the $300,000 that is currently held in a segregated trust account in our office."
2. Oral motion to withdraw stipulation
On December 18, 2006, Erwin made an oral motion to withdraw from the stipulation, arguing Andrea had abused the discovery process. He contended that his prior counsel had propounded discovery that requested production of documents to which the property agreement would have been responsive, and she did not mention the property agreement in response to interrogatories.
The court denied the motion. The court first found that the document was within the scope of Erwin's discovery requests. However, the court did not believe that Andrea concealed the document, but only had forgotten about it. In fact, as the court pointed out, it was "to her advantage to have recalled it and to [Erwin's] advantage not to disclose it." Further, the court found that even if Andrea had concealed the document, "waiting to spring a surprise" on Erwin shortly before trial, "I still would consider that [Erwin] waived that [claim] when at the beginning of the trial after talking to the estate planning attorney and having access to this information there is a stipulation that it is going to be honored as far as these accounts . . . . And I think that is waived absolutely. And so, number 1, I do not believe that she withheld this information. I think she did not have the document in all likelihood and had forgotten about it; and, number 2, I will give [Erwin] the same benefit of the doubt; that he had forgotten about it and whatever happened to the document sent to his office, that he certainly -- I am not saying he concealed them, but somehow they just got lost in the process. So I am taking both people at face value and assuming they are truthful here and that people had just forgotten about this and the significance of it. [¶] Even if that weren't the case, we don't stipulate and then withdraw a stipulation 4 days into the trial after it has been tried on that assumption on [Erwin's] side of the case."
3. Formal motion to vacate stipulation under section 473 (b)
Prior to the conclusion of the trial, Erwin brought a formal motion, under section 473(b), to set aside the stipulation. A great deal of the motion centered on Erwin's contention the accounts were in fact not separate, but community, property. Erwin also recounted his discovery requests and Andrea's failure to produce the property agreement or mention it in her responses. Erwin pointed out the fact a copy of the property agreement had been sent to the marital residence.
Erwin stated that he was "extremely surprised" to see the property agreement in the estate planning documents produced by Lauth in response to Andrea's subpoena and was "shocked" to find out Lauth had sent her a copy of the estate planning documents to their home. Erwin stated that when the documents were produced, "I was in the midst of an arbitration in New York; my long time partners had left the firm the prior year and I inherited all of the overhead of the law firm with two offices while losing almost half of the firm revenues when my partners left. It was, and continues to be an extremely stressful time in my life and I am working harder than I ever worked just to try to keep things afloat. I was representing myself; heavily in debt to carry my law practice and make the substantial payments I had been ordered to pay to [Andrea] and had, at the time, absolutely no recollection of the Property Agreement or knowledge of the law relating to such agreements. I was representing myself, having run out of funds with which to pay Mr. Leto. I assumed it was a valid agreement and immediately wrote to this Court to so advise the Court that the agreement had just come to my attention and much to my surprise but that it bore my signature." Erwin argued the parties had been litigating the case under a "mutual mistake of fact" that no property agreement existed. He also asserted there was a mistake of law as to the enforceability of the agreement. Erwin argued that he was surprised and prejudiced by the production of the property agreement six days before trial and could prove the funds in the stock accounts were community property and that Andrea could not rebut the presumption of undue influence arising from a transaction between two spouses.
Andrea opposed the motion, pointing out the property agreement was prepared by an attorney Erwin retained and two copies of the estate planning documents had been sent to Erwin's law office. She also pointed out the fact the copy sent to the marital residence was addressed to Erwin, and he removed it from the residence following the parties' separation. Andrea also noted Erwin had consulted with Lauth about the estate planning documents following the parties' separation. She asserted she did not discover the name of the estate planning attorney until Erwin's deposition and thereafter subpoenaed the file. She stated she truthfully responded to discovery because she was not in possession of the document, all copies were in the possession and control of Erwin, and she had forgotten about the property agreement. Andrea also noted it was Erwin who proposed the stipulation, after consulting counsel. Andrea pointed out Erwin was an attorney licensed to practice law in New York and California and had practiced securities litigation for over 25 years. Finally, Andrea noted she had no motive to withhold the property agreement as Erwin was challenging her separate property claims.
G. Proposed Statement of Decision
In August 2007 the court issued its proposed statement of decision on reserved issues. With regard to support, the court agreed that Erwin's income had been overstated for 2005 to the extent "that loans were treated as income." The court therefore reduced his income for 2005 from $40,459 to 36,400 a month. As a result, the court reduced his temporary spousal support from $9,000 to $8,000 a month and child support from $3,666 to $2,772. The court made that order retroactive to January 1, 2006.
The court denied Erwin's motion to set aside the stipulation, noting first it had previously denied the motion during trial. The court further found Erwin's "claims of surprise, mistake of law or fact or injustice are not believable. [Erwin] is very knowledgeable and sophisticated. He generally represented his case in great detail and with a clear understanding of Family Law. The evidence did not support any finding or inference that [Andrea] subjected him to undue influence in entering into the property agreement or subsequent stipulation upholding its terms."
H. Motion To Clarify or Reopen Court's Ruling
In response to the proposed statement of decision, Erwin filed a motion requesting that the court either clarify or reopen the proposed statement of decision, or enter a different judgment than announced. Erwin requested that the court make the lowered temporary support order retroactive to March 2005, the date the court had initially increased temporary support, or, in the alternative, grant him credit for one-half of the $22,280 he paid Professional Marketing for loan payments from his separate post-separation funds.
I. Final Statement of Decision
In September 2007 the court entered a final statement of decision on reserved issues. On the issue of retroactivity, the court stated: "The court did not retain jurisdiction to modify temporary support prior to January 1, 2006 and, accordingly, [Erwin's] request for an earlier modification is denied." Further, the court reiterated its denial of Erwin's request to vacate the stipulation.
DISCUSSION
I. RETROACTIVITY OF REDUCED INTERIM SUPPORT
Erwin asserts the court erred in failing to order the reduced child and spousal support it ordered at trial retroactive to March 2005, or, in the alternative, failing to grant him a credit for loan payments made to Professional Marketing. We reject this contention.
"An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date . . . ." (Fam. Code, § 3653, subd. (a).) Thus, by its plain terms, the statute "permits the trial court to make its ruling retroactive to the filing date of the motion, but no earlier." (In re Marriage of Cheriton (2005) 92 Cal.App.4th 269, 300 (Cheriton).) As one court has put it, "[t]he filing date, in other words, establishes the outermost limit of retroactivity." (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 (Murray).) A court lacks jurisdiction to make a modification retroactive to any earlier date. (Cheriton, supra, 92 Cal.App.4th at p. 300.)
However, this rule is not applicable where the parties stipulate to a different result. In In re Marriage of Czapar (1991)232 Cal.App.3d 1308, the parties owned a business called ACE. The husband was the manager, and the wife was an employee of the business. After they separated, husband fired his wife from her job, whereupon she filed an order to show cause for spousal support. In response, the parties stipulated ACE would pay the wife $2,000 a month. These payments were characterized in the stipulation as a distribution of community property, but were made " 'subject to being re-classified at the time of trial ─ in the trial judges [sic ] discretion . . . .' " (Id. at p. 1316.) In the judgment of dissolution the trial judge reclassified the payments as spousal support. Husband challenged the reclassification on appeal, claiming the court's reclassification of the spousal support constituted an improper retroactive award of temporary support. The Court of Appeal rejected this argument: "We reject [husband's] argument that the trial court cannot award pendente lite support retroactively. [Husband] specifically stipulated that the amounts paid to wife by ACE weresubject to reclassification, essentially agreeing to just such an action by the court. The evidence amply supports the trial court's exercise of its discretion." (Id. at p. 1317; see also Murray, supra, 101 Cal.App.4th at pp. 597-598 [distinguishing Czapar on this basis to find support could not be made retroactive to date earlier than motion].)
Here, in originally setting temporary support, the parties stipulated that the court "shall reserve jurisdiction over the amount and allocation of support retroactively." Thus, the court had the jurisdiction to modify that original support order and apply the modification retroactive to March 2005. However, it was not required to do so. Rather, the extent of retroactivity is within the trial court's discretion. (Cheriton, supra, 92 Cal.App.4th at p. 300; Fam. Code, § 3653, subd. (d)(1)-(4).)
In determining the outside limit of retroactivity, courts consider (1) the amount to be paid; (2) the duration of the support order before it was modified or terminated; (3) the financial impact on the support obligee of any particular repayment method, such as an offset against future support payments or wage assignment; and (4) "[a]ny other facts or circumstances that the court deems relevant." (Fam. Code, § 3653, subd. (d)(1)-(4).)
Here, when the court increased Erwin's support obligation in May 2006, it retained jurisdiction to modify the support orders retroactive only to January 2006. The court explained the reason for the limit on retroactivity as follows: "The court is aware that the structure of [Erwin's] law firm has recently undergone dramatic changes which may result in substantial changes in his income. For this reason the court retains jurisdiction to modify support retroactively to January 1, 2006when more reliable information for this year is available." Erwin has not shown, or even argued, that this reasoning was an abuse of discretion by the court.
Further, as Erwin acknowledges, the court's decision whether or not to grant post-separation credits also lies entirely within the discretion of the court. (In re Marriage of Epstein (1979) 24 Cal.3d 76, 81.) Thus, the court did not err in failing to alternatively give Erwin a credit for monies loaned to Professional Marketing, as that would have been in effect making the reduction in support retroactive to March 2005. By restricting the retroactivity of any modification of support to January 2006, the court necessarily rejected the alternative Erwin suggested as well.
Erwin argues that the court had no discretion not to award him credits for amounts he had paid on loans to Professional Marketing as the court, in allowing him to argue the loan issue at trial had stated Erwin would be "entitled to reimbursement" of those amounts. However, that contention misstates the court's ruling. In denying Erwin's motion for reconsideration of the order increasing support, the court stated: "The motion of [Erwin] for reconsideration of this Court's Order Increasing Temporary Support is denied, without prejudice to [Erwin's] right, at the time of trial, to claim and prove that monies he has paid to either Gotham Marine, LLC or Professional [Marketing] are credits to which he is entitled to reimbursement from [Andrea]." (Italics added.) Thus, the court did not state Erwin would be entitled to reimbursement from Andrea for monies he had paid on loans to professional marketing, but rather Erwin had the right to "claim and prove" such entitlement. The court thus did not err in failing to grant Erwin a credit for loan payments to Professional Marketing.
II. RELIEF FROM STIPULATION
Erwin asserts the court erred in refusing to grant him relief from the stipulation under section 473(b) because (1) the parties were operating under a mutual mistake of fact that the property agreement did not exist and the stock accounts were community property; and (2) the parties were operating under a mutual mistake of law that the stock accounts were Andrea's separate property. We reject these contentions.
A. Standard of Review
To obtain reversal of the trial court's ruling on the section 473(b) motion, Shustak must establish that the trial court clearly abused its discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora) ["'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse'"].) "Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) "'"The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [¶] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." [Fn. omitted.]'" (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448, italics added, quoting In re Cortez (1971) 6 Cal.3d 78, 85-86.)
B. Principles Governing Motions for Relief under the Discretionary Provision of Section 473 (b)
"The discretionary provisions of section 473 have been in place since the 1800's. [Citation.] . . . Very early on, the courts decided that the failure of counsel to meet a procedural deadline was a proper subject for section 473 relief." (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192-1193.) However, "'A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable . . . .'" (Zamora, supra, 28 Cal.4th at p. 258, italics added.) "In determining whether the attorney's mistake or inadvertence was excusable, 'the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' [Citation.]" (Ibid.)
Lack of prejudice to the opposing party and the diligence of the party seeking relief are also important factors in deciding whether to grant relief under the discretionary relief under section 473(b). (Zamora, supra, 28 Cal.4th at p. 258 ["Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue"].)
In reviewing the trial court's order denying relief, we are mindful that "because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston).)
C. Analysis
1. Mistake of fact
The court did not abuse its discretion in finding there was no mistake of fact by Erwin or the parties together. The court could have reasonably concluded he was aware of the property agreement as (1) he was an experienced attorney; (2) he retained Lauth to prepare the agreement; (3) executed copies were sent to both his office and home; (4) he contacted the court, after consulting with counsel, to notify it of the existence and validity of the agreement; and (5) he consulted with Lauth concerning the estate planning documents, of which the property agreement was a part, after the parties' separation.
Further, the court had ample basis for finding Erwin's claimed mistake of fact was not credible, given the fact (1) it was in his interest to deny the existence of the agreement, not in Andrea's; (2) she claimed he took the property agreement from the marital residence after the parties' separation; and (3) he claimed in his deposition that Andrea had never signed the property agreement.
In claiming both parties were operating under a mutual mistake of fact that no property agreement existed and the stock accounts were community property, Erwin points to the fact Andrea failed to produce the property agreement in response to discovery and the fact he rejected an offer made by Andrea at a mandatory settlement conference to give him half the stock accounts. However, Andrea adequately explained her discovery response when she declared she had forgotten about the agreement and did not have it in her possession. Further, whatever offer Andrea made to settle that case not only is an inadmissible confidential settlement communication (see Evid. Code, § 1152, subd. (a)), but is irrelevant to what a party's legal position is. At all times Andrea claimed the stock accounts were her separate property.
This case is similar to In re Marriage of King (2000) 80 Cal.App.4th 92, 119, where the wife asserted a stipulated judgment should be set aside on the basis of, among other things, her "negligence" and "mistakes" of fact. The trial court and Court of Appeal rejected this claim. As the Court of Appeal concluded, "Aside from the powerful evidence of [wife's] express acknowledgement on voir dire, the record shows that every fact she now claims as a basis for seeking reversal of the judgment was actually known to her prior to the bench/bar conference and at the time she stipulated on the record to the settlement agreement." (Id. at p. 121.) As in Marriage of King, the court in this matter did not abuse its discretion in rejecting Erwin's claimed mistake of fact and denying his motion to set aside the stipulation under section 473(b).
2. Mistake of law
Nor did the court abuse its discretion in refusing to set aside the stipulation based upon a mistake of law. On this issue, Erwin focuses on the fact he purportedly could have shown the stock accounts subject to the property agreement were community, as opposed to separate, property. However, Erwin's focus is misplaced.
The question presented is whether there was a mutual or unilateral mistake of law in entering the stipulation. He was not seeking to set aside the underlying property agreement, specifying that the stock accounts were Andrea's separate property. The court could reasonably conclude he was not operating under a mistake of law when he entered into the stipulation at trial given the fact (1) he was an experienced attorney; (2) he admitted the validity of the property agreement in a writing sent to the court; and (3) he had consulted with counsel prior to entering into the stipulation. Further, as stated, ante, given the state of the record, the court reasonably concluded Erwin's claims of surprise and mistake were simply not credible.
DISPOSITION
The judgment is affirmed. Andrea shall recover her costs on appeal.
WE CONCUR: BENKE, Acting P. J. IRION, J.