Opinion
G059369
07-08-2021
In re the Marriage of MARIANNE AILIE TERRY and CHARLES FRANKLIN ZEIGLER III. MARIANNE AILIE TERRY ZEIGLER, Appellant, v. CHARLES FRANKLIN ZEIGLER III, Respondent.
Kaver Law Office and Andrew M. Kaver for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 13D008459 Donald F. Gaffney, Judge. Reversed and remanded, with directions.
Kaver Law Office and Andrew M. Kaver for Appellant.
No appearance for Respondent.
OPINION
THOMPSON, J.
As part of their marital settlement, which was incorporated into a dissolution judgment, Marianne Ailie Terry Zeigler (Appellant) and Charles Franklin Zeigler III (Respondent) agreed to share certain expenses for the care of their daughter. Respondent sought, and the trial court awarded, approximately $19,000 in past expenditures for which the court found Appellant was financially responsible. In doing so, the court rejected Appellant's contentions that Respondent's unclean hands should preclude him from recovering anything and that the expenditures at issue were solely Respondent's responsibility under the terms of their dissolution judgment.
Appellant argues the trial court erred in both respects. We agree, in part, as to Appellant's obligations under the dissolution judgment. Based on the judgment's plain language, Appellant should not have been obligated to reimburse Respondent for the cost of before and after school childcare while the parties' daughter lived in Respondent's sole physical custody in Virginia. Appellant has not shown error as to the remainder of the expenditures, and she has not demonstrated an abuse of discretion concerning the trial court's rejection of her unclean hands argument. We reverse the order and direct the trial court on remand to recalculate the amount owed to Respondent by Appellant as specified in the Disposition.
FACTS
Appellant and Respondent are divorced and have a minor daughter (daughter). In March 2014, the trial court entered a dissolution judgment pursuant to a stipulation of the parties (2014 judgment). The 2014 judgment granted Respondent sole legal custody of their daughter, with Appellant and Respondent sharing physical custody-60 percent to Respondent and 40 percent to Appellant.
Regarding child support, the parties expressly stipulated to deviate from the statutory child support guidelines, with the 2014 judgment specifying how daughter related costs would be divided. All “[c]hild [c]are costs” are to be shared equally, except for “everyday child expenses.” With respect to the latter, the 2014 judgment states that “everyday childcare needs and expenses that arise during their physical custody period shall be borne by that parent.” It further specifies that healthcare premiums, co-pays and any other uncovered health care expenses for daughter are to be shared equally.
In November 2015, Respondent moved to Virginia with then six-year-old daughter. Appellant remained living in California, meaning daughter lived solely with Respondent. Appellant and Respondent remained in communication about daughter during this time, and Appellant appears to have seen daughter on occasion.
From mid-June to November 2016, Appellant moved to Virginia. During this time, Respondent and Appellant shared physical custody of daughter pursuant to the 2014 judgment.
Upon Appellant's return to California in November 2016, daughter remained in Virginia with Respondent. The parties remained in communication about daughter, and Appellant saw daughter from time-to-time.
In November 2017, Appellant filed an order to show cause for contempt against Respondent, contending he violated the 2014 judgment by moving with daughter to Virginia without Appellant's consent or an order from the court. At the same time, Appellant filed a request for order asking the trial court to modify the child custody order to give her joint legal custody and full physical custody. Father opposed the motions, contending Appellant agreed to daughter's move to Virginia.
On our own motion, and for background information purposes, we take judicial notice of certain documents filed in the trial court which were not included in the record on appeal. (Evid. Code, §§ 452, subd. (d)(1), 459.)
The trial court ultimately dismissed Appellant's contempt request, but it entered a temporary child custody order pending a hearing on the matter. Finding daughter to be living “in a state in direct violation of the [2014] stipulated judgment reached by the parties[, ]” the court ordered Respondent to return daughter to California within 48 hours. In addition, the temporary order gave Appellant sole legal and physical custody of daughter.
In May 2019, Respondent filed a request for order regarding purported outstanding monies owed to him by Appellant under the terms of the 2014 judgment and a separate agreement between the parties concerning summer of 2018 daughter-related expenses. He sought to recover over $19,000, with the items grouped into three categories: “[t]uition, extracurricular and 529 College Savings, etc. [e]xpenses”; “health insurance/health payments”; and “other child expenses[.]” All the expenses related to the time period daughter lived in Virginia.
Appellant opposed the request. She claimed many of the items fell outside the scope of expenses to be split by the parties under the 2014 judgment, Respondent failed to show proof of payment of any of the claimed expenses and any order to pay should be offset by outstanding amounts owed to her by Respondent. In subsequent briefing allowed by the trial court, Appellant also argued Respondent's request should be denied based on the equitable unclean hands doctrine given that the expenses related to the time period he took daughter to live in Virginia in violation of the 2014 judgment.
The trial court heard the matter and found in Respondent's favor, ordering Appellant to pay the full amount requested, not including interest. It found, in relevant part: (1) neither party had unclean hands or engaged in sanctionable conduct; (2) the expenses for which reimbursement was sought “fall within those categories of items that pursuant to the [2014] judgment the parties are required to share equally”; (3) Appellant did not show the expenses in Virginia were more than they would have been in California; and (4) Respondent proved he paid all the expenses at issue through attachments to his responsive declaration.
Appellant timely appealed. Respondent did not submit any briefing on appeal.
DISCUSSION
Appellant challenges the trial court's order on two grounds. First, she contends some of the expenses for which Respondent sought reimbursement are not of the type which the 2014 judgment requires the parties to equally share. Second, she argues the trial court should have exercised its equitable powers to deny Respondent's request pursuant to the unclean hands doctrine. We do not find any error in the latter determination, but we agree some of the disputed expenses concerning before and after school childcare should have been deemed Respondent's sole obligation.
2014 judgment child-related expense obligations
The trial court concluded all the expenses at issue fall into categories which the parties are obligated to equally split under the terms of the 2014 judgment. Appellant contends otherwise, focusing on two categories of expenses-one category referred to by Respondent as “tuition, ” and the second category being “other child expenses.” With the relevant facts undisputed, and because we must interpret the pertinent 2014 judgment provisions, our review is de novo. (Fox v. Fox (1954) 42 Cal.2d 49, 52.)
“Marital 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.) “When the language... is clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language. [Citations.] Extrinsic evidence of the parties' intentions is inadmissible to vary, alter, or add to the terms of an unambiguous agreement.” (Id. at p. 1440.) If, on the other hand, the language is ambiguous-i.e. susceptible to more than one reasonable interpretation-we may look to extrinsic evidence to determine the parties' intent. (Id. at p. 1439.) In such a context, extrinsic evidence is admissible so long as “it supports a meaning to which the language is reasonably susceptible.” (Ibid.)
The 2014 judgment provides, in relevant part:
2. CHILD SUPPORT
a. Petitioner and Respondent shall share equally all Child Care costs, with the exception of everyday child expenses (as defined below).
b. Respondent and Petitioner shall share all Child Care costs, including the cost of tuition and extracurricular activities. Everyday childcare needs and expenses that arise during their physical custody period shall be borne by that parent. Petitioner and Respondent may agree to share equally the costs of the Child's groceries, clothing, or other household expenses as they arise.
The language concerning the basic division of child related expenses is unambiguous. “[A]ll Child Care costs” are to be shared equally. This is the default.
The one exception to the equal division default is “everyday child expenses.” Two types of expenses expressly fall into this category: (1) “[e]veryday childcare needs and expenses”; and (2) “the Child's groceries, clothing, or other household expenses[.]” The former type are to be borne by the parent having physical custody at the time the expense arises. The latter type may be shared equally if the parties so agree.
Appellant's challenge centers on only two types of expenses for which Respondent sought reimbursement. We discuss each in turn, along with the applicable language from the 2014 judgment.
The category constituting one of the largest amounts of expenses is what Respondent characterized below as “tuition.” Appellant contends these expenses were “everyday childcare” expenses because they were payments for before and after school care. Thus, she argues, they should be Respondent's responsibility given that he exercised sole physical custody of daughter during the time daughter lived in Virginia.
Below, Respondent did not dispute the “tuition” expenses were for daughter's before and after school care. Instead, he took the position that “‘everyday childcare needs and expenses' [did] not mean day care so a parent can work but things such as gas to drive the child to school, money to buy McDonald's for the child, etc.”
We agree with Appellant's interpretation. The exception to the default division of expenses uses the phrase “everyday childcare.” The compound word “childcare, ” which is notably different than the separate words “Child Care” used elsewhere, means “the care of children especially as a service while parents are working.” (Merriam-Webster Dict. Online (2021) <https://www.merriam-webster.com/dictionary/childcare> [as of May 11, 2021].) And, “everyday” means “encountered or used routinely or typically.” (Merriam-Webster Dict., supra, <https://www.merriam-webster.com/dictionary/everyday> [as of May 11, 2021].)
Thus, the exception to the default concerns routinely or typically used care for daughter, including services used while a parent works. The plain, ordinary meaning of the language is unambiguous and not susceptible to the interpretation urged by Respondent below.
Notwithstanding this interpretation, we conclude Appellant was responsible for some of the before and after school care costs. Appellant moved to Virginia in 2016. During the five months she lived there, she shared physical custody with Respondent pursuant to the 2014 judgment. Accordingly, and as she appears to concede, Appellant is responsible for any before and after school care costs arising during her custodial time while she lived in Virginia. The remaining before and after school care costs were solely Respondent's responsibility.
The other category of expenses Appellant contests is somewhat of a catchall category. It includes the cost of birthday gifts, clothing and shoes, teacher appreciation week gifts, school supplies, school pictures, sports equipment and roundtrip airfare between Virginia and California. Appellant claims these are everyday childcare expenses, and, alternatively, argues they fall within the category of everyday expenses which the parties could, but did not, agree to share.
These items are not childcare expenses. As previously discussed, childcare concerns the care of daughter by, for example, a daycare, babysitters or a nanny. None of the “other expense” items concern such matters.
This leaves two categories within which these other expenses may fall-everyday groceries, clothing, or other household expenses (split 50/50 upon agreement), or general child care expenses (required 50/50 split). We need not decide the precise category within which each of the remaining items belong because the record evidences the parties' historical practice of sharing equally such costs. Writings dating back as far as 2013 show Appellant and Respondent each paid half the cost of, inter alia, daughter's birthday and Christmas gifts, birthday gifts for daughter's friends, clothing and shoes, equipment related to daughter's extracurricular activities, school related supplies and donations, and travel. Thus, either the parties agreed to share the costs (there are some text messages in the record indicating as much), or they considered them to be general child care expenses subject to the default cost sharing. Either way, Appellant was responsible for half.
In sum, Appellant has not demonstrated trial court error in the allocation of expense obligations under the 2014 judgment except as to the costs of daughter's before and after school during the time Respondent exercised sole physical custody over daughter while living in Virginia.
Unclean hands
“The [doctrine] of unclean hands arises from the maxim, ‘“‘He who comes into Equity must come with clean hands.'”' [Citation.] [It] demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim....
“The unclean hands doctrine protects judicial integrity and promotes justice. It protects judicial integrity because allowing a plaintiff with unclean hands to recover in an action creates doubts as to the justice provided by the judicial system. Thus, precluding recovery to the unclean plaintiff protects the court's, rather than the opposing party's, interests. [Citations.] The doctrine promotes justice by making a plaintiff answer for his own misconduct in the action. It prevents ‘a wrongdoer from enjoying the fruits of his transgression.'” (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978 (Kendall-Jackson).)
Misconduct need not be a crime or an actionable tort to constitute unclean hands. (Kendall-Jackson, supra, 76 Cal.App.4th at p. 979.) Generally speaking, “[a]ny conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine.” (Ibid.) At the same time, not every wrong will suffice. “The misconduct that brings the unclean hands doctrine into play must relate directly to the cause at issue. Past improper conduct or prior misconduct that only indirectly affects the problem before the court does not suffice. The determination of the unclean hands defense cannot be distorted into a proceeding to try the general morals of the parties.” (Ibid.) As one court described: “The issue is not that the plaintiff's hands are dirty, but rather ‘“‘that the manner of dirtying renders inequitable the assertion of such rights against the defendant.'”'... [The misconduct must] ‘“prejudicially affect[] the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief.”'” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 846.)
California courts apply “a three-pronged test to determine the effect to be given to [a party's] unclean hands conduct. Whether the particular misconduct is a bar to the alleged claim for relief depends on (1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries.” (Kendall-Jackson, supra, 76 Cal.App.4th at p. 979.) The trial court's decision whether to apply the doctrine of unclean hands is an exercise of its broad discretion, subject to the abuse of discretion standard of review on appeal. (Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1109; Lovett v. Carrasco (1998) 63 Cal.App.4th 48, 55.)
We begin by recognizing what Respondent appears to still not acknowledge by continuing to assert Appellant agreed to the Virginia move: the trial court previously found Respondent directly violated the 2014 judgment by moving daughter to Virginia. He should not have done it, and upon making its finding, the trial court ordered him to return daughter to California immediately. It also granted Appellant full legal and physical custody.
Even so, we are not convinced the trial court abused its discretion by declining to apply the unclean hands doctrine. Unlike in In re Marriage of Damico (1994) 7 Cal.4th 673, 675-676, a case in which the court applied the unclean hands doctrine to preclude recovery of child support arrearages by a mother who unilaterally removed father from her children's lives and actively concealed their whereabouts (see also In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175), Respondent was forthcoming about daughter's whereabouts and allowed daughter to visit Appellant at various times. He also agreed to shared physical custody pursuant to the 2014 judgment during the four months Appellant lived in Virginia. And throughout the years, Respondent remained in communication with Appellant, sharing information concerning daughter and her activities, and seeking input from Appellant concerning a wide variety of daughter-related matters-input which Appellant provided.
Further, although the trial court gave Appellant an opportunity to show the Virginia costs were greater than the costs that would have been incurred (& shared pursuant to the 2014 judgment) if all parties had remained in California, she did not do so. Under the judgment, aside from the everyday childcare and household expenses which we deal with above, all costs of caring for daughter were to be borne equally by the parties irrespective of the physical custody allocation. Thus, it is questionable whether Respondent's misconduct even affected the incurring of expenses at issue. (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 820 [“The misconduct must ‘“infect the cause of action before the court”'”].)
Given the circumstances, we cannot say the trial court's decision is arbitrary, capricious, whimsical, or exceeds the bounds of reason. (See Estate of Gilkison (1998) 65 Cal.App.4th 1448-1449.) Appellant has not demonstrated an abuse of discretion.
DISPOSITION
The order is reversed. On remand, the trial court is directed to recalculate the amount Appellant owes Respondent, excluding all costs for before and after school care for daughter except those arising during Appellant's custodial time while she lived in Virginia, and enter a new order in accordance with that calculation. Appellant is entitled to costs on appeal.
WE CONCUR: O'LEARY, P. J., FYBEL, J.