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Denman v. Denman

California Court of Appeals, Second District, Third Division
Sep 25, 2008
No. B205132 (Cal. Ct. App. Sep. 25, 2008)

Opinion


LYNDA BECK DENMAN, Plaintiff and Respondent, v. TREVOR DENMAN, Defendant and Appellant. B205132 California Court of Appeal, Second District, Third Division September 25, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. KD 005683, Rocky L. Crabb, Commissioner.

Oddenino & Gaule and Michael L. Oddenino for Defendant and Appellant.

Jones & Ayotte and Gregory A. Jones for Plaintiff and Respondent.

ALDRICH, J.

I.

INTRODUCTION

In 1997, the trial court issued an order adopting the stipulation of appellant Trevor Denman (Trevor) and his ex-wife respondent Lynda Beck Denman (Lynda). The stipulated order modified the parties’ 1992 dissolution judgment to address Trevor’s obligation to pay for the post-secondary education of the couple’s one child, Katrina. In 2007, Lynda brought a motion seeking an order to direct Trevor to pay all of Katrina’s post-secondary education expenses at Azusa Pacific University (APU) and Citrus Community College. Trevor appeals from the order of the trial court granting the motion. He argues he was not obligated to pay for Katrina’s college expenses at APU because, contrary to the stipulated judgment, he was not consulted about, nor agreed to, Katrina’s decision to attend APU. We hold that this argument is persuasive and we reverse that portion of the order directing Trevor to pay for Katrina’s tuition and expenses at APU.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Preliminary facts

The facts are taken from the record in the appeal before us, as well as those contained in the prior appeal, case No. B180150, of which we have taken judicial notice.

1. The marriage and separation

Trevor is a race horse announcer who works at several racing venues, including the Del Mar race track in San Diego County. Trevor and Lynda were married in September 1983. Their one child, Katrina, was born in August 1984. In September 1988, the parties separated.

2. The 1992 dissolution judgment

On January 24, 1992, the trial court entered a judgment of dissolution. In addition to other provisions, the judgment divided the community property and debts, awarded Lynda exclusive use of the family residence until Katrina was 18 years old, and awarded Trevor his separate property. Trevor was ordered to pay Lynda $1,900 per month for spousal support commencing May 1, 1991, and continuing “until the death of either party, the remarriage of [Lynda], further order of the Court or until May 7, 1995.”

Paragraph 2 of the 1992 judgment addressed child support. In Paragraph 2.1, Trevor was ordered to pay Lynda 20 percent of his taxable income for child support commencing on May 15, 1995, and “continuing until the minor child marries, dies, or reaches age 25, or 21 and is not a full-time college student, whichever occurs first, or until further order of the Court.” As additional child support, Trevor was directed to provide Katrina with health insurance and maintain life insurance designating Katrina as the beneficiary.

Paragraph 2.3 addressed the post-secondary education of Katrina. Pursuant to this provision, Trevor was obligated to pay for the child’s educational expenses beyond high school graduation, extending past the child’s majority, for the maximum duration of five years. Educational expenses included tuition, room, board and books. Paragraph 2.3 read: “Post-secondary Education: [Trevor] shall provide education beyond graduation from high school for [Katrina] as follows: [¶] a. Tuition, room, board and books will be paid in full within thirty (30) days notice of due date for payment. [¶] b. The maximum duration of the obligation shall be five (5) years from the date that the minor child graduates from high school, excluding military service, or interim time taken to pursue extern or other work experience related to the study program, so long as such interim time is approved by both parties. [¶] c. The minor child must attend school full time (as defined by the school’s administrative regulations), except as provided by section (b) above. [¶] d. The obligation to pay post-secondary education aid is an obligation to pay support and may be so enforced, even if the minor child is over the then-age of majority.”

3. The 1997 stipulated order

In 1997, the parties negotiated a modification of the support order. During these negotiations, Trevor’s former counsel Sandra N. Baldonado discussed the issue of Katrina’s post-secondary education. In a January 3, 1997 letter, addressed to Lynda’s counsel, attorney Baldonado stated in part, “In reviewing some of the things [Trevor] agreed to in the Judgment without benefit of counsel, there is a glaring problem in the schooling paragraph whereby Trevor has no input whatsoever into the selection of the college that Katrina would go to, or the program she would participate in. If he is footing the bill it’s imperative that any college program that she elects would be with his input and approval. He should not be obligated to pay an exorbitant tuition fee for a program that leads nowhere. I believe that it’s appropriate that he have some input into the selection of both the school and the program.”

In a February 25, 1997 letter, attorney Baldonado again discussed Trevor’s obligations with regard to paying for Katrina’s post-secondary education. In the letter sent to Lynda’s counsel, attorney Baldonado stated, “In addition [to having a termination date for Trevor’s obligation to pay for Katrina’s education], we need to give Trevor input into the educational choice Katrina may make and there must be some reassessment of her needs once she elects to go to college. Again, this support is for Katrina’s benefit, not [Lynda’s]. The existing language gives Trevor no protection against a potential blank check. [¶] I would suggest that we use language that the choice of a college shall be mutually agreed upon among the parties.”

In the summer of 1997, the parties entered into a stipulation to modify the January 1992 judgment. In addition to other changes, paragraph 1 of the 1997 stipulation read in part, “[Trevor] shall pay [Lynda] as and for Family Support the sum of $4,792 per month, commencing July 1, 1997 and continuing until the parties’ minor child, . . . marries, dies, is not a full-time college student or August 30, 2009, whichever event first occurs.” Paragraph 2 of the 1997 stipulation stated that “[t]he Orders contained in paragraph 2.3 of the January 24, 1992 Judgment shall remain in full force and effect, except that the minor child’s choice of post-secondary education shall be discussed and be mutually agreed upon by [Lynda, Trevor], and [Katrina].” (Italics added.) Paragraph 3 required Trevor to “pay $2,500 per year for [Katrina’s] educational travel expenses, provided such trips are made.”

On August 5, 1997, in accordance with the stipulation of the parties, the trial court entered an order modifying the January 24, 1992 judgment.

B. Trevor’s April 2004 order to show cause for termination of family support and the first appeal

In August 2003, Katrina turned 19 years of age.

In March 2004, Lynda wrote Trevor a letter informing him that Katrina hoped to enroll in either Pomona College or Claremont McKenna College. Lynda stated that Katrina had decided that she was not ready to attend Cambridge University.

On April 16, 2004, Trevor filed an order to show cause for the termination of family support. Trevor requested the family support order be terminated because his daughter had not obtained her high school diploma after being home schooled and was not a full-time college student. Alternatively, Trevor contended that because Katrina was over 19 years of age and had not attended college, family support payments should be terminated. He also sought termination of the “spousal support component of the Family Support order.” Trevor suggested that if Lynda was to be believed, the order could not be upheld because its purpose was to evade taxes by combining spousal and child support.

Lynda opposed the order to show cause. She stated, and showed by exhibits, that Katrina had received her high school diploma in June 2004. Lynda represented in a July 2004, declaration that Katrina hoped to attend APU in the fall, and as a backup, Citrus Community College.

At the hearing on the order to show cause, the trial court noted that there was an omission in the stipulation because it did not consider what would occur if Katrina’s education was interrupted for a period of time, i.e., if she spent a year away from school.

On October 14, 2004, the trial court issued an order denying Trevor’s order to show cause to terminate family support. However, the trial court recognized that the stipulated judgment did not address what would happen if Katrina was over 19 years of age, but was not a full-time student. The trial court modified the order to make it clear, consistent with the parties’ intention, that Trevor was not responsible for support if the daughter was not in school. The court found “that the parties intended that: [¶] [] The family support order was an amount payable by [Trevor] to [Lynda] in lieu of child support during the years before [Katrina] reached the age of nineteen; [¶] [] After reaching the age of nineteen, the family support would be suspended during any period of time [Katrina] would not be a full-time college student excluding regular vacation breaks; and [¶] [] The obligation to pay the family support would resume upon [Katrina’s] return from any hiatus and continues until August 30, 2009.” In rendering its ruling, the trial court noted that Katrina planned on attending APU. The trial court rejected Trevor’s argument that the 1997 stipulation and judgment were void or voidable.

Trevor appealed from the order denying his order to show cause. Trevor argued the trial court erred in failing to terminate the 1997 family support order. In an opinion filed February 8, 2006, in case No. B180150, we held that Trevor forfeited his argument that the 1997 order violated state and federal law because he negotiated the deal, obtained from the trial court an order he had requested, and fulfilled his obligations under the court order for seven years. We also held that the family support order was not void or voidable as against public policy. We found unpersuasive Trevor’s argument that the 1997 stipulation was akin to an illegal contract.

C. Lynda’s April 2007 motion and the issues presently before us

1. The facts relevant to Lynda’s April 2007 motion for order to pay educational expenses

On April 2, 2007, Lynda filed a motion seeking an order to direct Trevor to pay for Katrina’s post-secondary educational expenses incurred at APU and Citrus Community College. Lynda’s declaration and Katrina’s declaration were submitted to support the motion. In opposing the motion, Trevor attached his declaration.

From these declarations, the following facts can be gleaned:

Between October 2003 and mid-December 2004, Trevor had no contact with Katrina. Lynda had changed her telephone number and had not notified Trevor of the change. Trevor sent two payments to Lynda with letters requesting the new telephone number. Although his checks were cashed, he was not provided with a telephone number.

On August 10, 2004, Katrina wrote a letter to Trevor informing him of her acceptance at APU and her intention to attend Citrus Community College in the fall of 2004 and APU in the spring of 2005. The letter also stated that Katrina planned on transferring to Pomona College or Claremont McKenna College in her sophomore or junior years. Thereafter, Katrina unsuccessfully tried to call Trevor to discuss her school tuition and book expenses. Prior to this communication, Katrina had had no specific conversations with Trevor about her attendance at APU. Rather, she had mentioned to him that she wanted to attend Pomona College, Claremont McKenna College, or Cambridge University. Katrina decided to attend APU because she was not admitted to Pomona College or Claremont McKenna College.

In her declaration, Katrina declared in part: “[I talked to my father about attending Pomona College, Claremont McKenna College, and Cambridge University in England.] My father and I never specifically discussed [APU], since this was not a school I planned on attending until I found out that I had not been admitted as a freshman to either Pomona or McKenna. However, this is also a nationally recognized school that has a good history department. The cost is lower than that of Pomona, McKenna, or Cambridge, so I did not think that there would be any objection on my father’s part. [¶] [My planned enrollment at APU] was disclosed in my mother’s declaration filed with the Court in this matter . . . [and] twice referred to in the Court’s Order entered on October 14, 2004 . . . . From these documents alone, I assumed my father was expressly aware of my intention to enroll and attend APU, as I believe he would have received [this information] from his attorney.” (Italics added.)

From mid-July through September 2004, Trevor was in the San Diego area working at the Del Mar race track. While there, Trevor’s mail was supposed to be forwarded to him from his San Dimas home. However, he never received Katrina’s August 10, 2004 letter.

On August 18, 2004, after completing her high school education, Katrina enrolled and attended Citrus Community College as a full-time student.

At the beginning of December 2004, possibly on December 6, 2004, Katrina left a telephone message for Trevor requesting $10,000 to pay for tuition at APU. Trevor received this message, which was the first time Trevor had heard from Katrina in years.

On December 6, 2004, Lynda sent a letter to Trevor’s attorney, Michael Oddenino, requesting that Trevor pay for APU’s tuition by December 10, 2004.

In the December 6, 2004, letter, Lynda stated: “My daughter, Katrina, has tried in vain to reach her father at his Minnesota residence to inform him of a pending tuition payment. After numerous attempts to speak to him directly, she left a detailed message, informing him that the first installment payment for her 2005 Azusa Pacific University tuition is due by this Friday, December 10th. Failure to make payment will eliminate the option of making installment payments and the full semester’s tuition will have to be paid in full by Monday, January 10, 2005. [¶] We would like to give Trevor every opportunity to exercise the option to make payments. Therefore we are contacting you as well in an effort to ensure that this information reaches him in time.”

On December 6, 2004, attorney Oddenino responded to Lynda’s letter. Attorney Oddenino stated in part, “[p]lease advise your client that at no time has anyone discussed with my client what school his daughter would attend and at no time has he ever agreed to pay the tuition for any school. Absent discussion with him and his agreement, there can be no expectation that he has any obligation to pay anything beyond the specific court orders that may be in effect.”

On December 18, 2004, Trevor sent a long email to Katrina. Trevor stated, in part, that he had “been away for a while and just received [Katrina’s] request for $10,000 over the phone.” Trevor also stated the following: “The revised agreement we have just made stipulates that I pay $60,000 a year, period. This amount includes college fees. Not $60,000 PLUS college fees. So, you are now responsible for your college fees out of the $60,000. Whichever college you choose you will still have more than $50,000 per year to live on after college . . . fees are paid. That is very reasonable. The courses for the first two years of college are pretty much the same no matter what college you go to, so I would think Citrus College would be just fine for two years and then step up to another college. I was supposed to have a say in which college you attended, but I guess that fell by the wayside as well. It is all very well to tell me what college you are going to when the price has not been considered. When I was paying the bill the choice was easy. Maybe it will be given a second thought now. [¶] I can pay the $10,000 by January 10 for 2005, but this amount will be subtracted from the payments once I start making them in full again, which will be in May.” (Italics added.)

Trevor forwarded $10,033 to Katrina, which was applied to the tuition expenses charged by APU. According to Trevor, he agreed to pay Katrina the money “so she would not miss college, but that the money was going to be deducted from [his] future family support payments. . . . The payment was in no way an acceptance of Azusa Pacific University as the college for her to attend.”

On January 5, 2005, upon completing the fall 2004 semester at Citrus Community College, Katrina transferred to APU, enrolling as a full-time student. She completed the spring 2005 semester at APU. During the summer of 2005, Katrina attended summer school programs at Citrus Community College.

On September 25, 2005, Katrina wrote a letter to Trevor informing him that she would be attending APU in the fall 2005 and that tuition for the semester was past due. She also stated that because he had paid the tuition for the prior semester, she assumed that he agreed with her attendance at APU and it was not necessary for her to seek his approval each semester.

Katrina’s September 25, 2005, letter stated in part, “As you demonstrated agreement with my attendance at Azusa Pacific University last semester by paying my tuition, it is a reasonable assumption that it is not going to be necessary to seek approval each semester. Therefore, I would appreciate it if you continue to honor your legal obligation to pay for my college education by making payment for this semester. . . . [¶] I would appreciate it if you would do this in a timely fashion as my student loan will not cover the entire semester.”

Trevor did not contact or respond to Katrina’s September 25, 2005 letter.

On October 24, 2005, Lynda requested Trevor pay for all of Katrina’s outstanding education expenses.

Katrina returned to APU where she completed two additional years. Each summer Katrina attended Citrus Community College.

Katrina expended approximately $45,000 for tuition and other expenses at APU, but this amount was reduced by the $10,033 she had received from Trevor and an additional $6,500 she had obtained in scholarships. Katrina also expended approximately $3,700 at Citrus Community College. For her education expenses, Katrina obtained three interest bearing loans for $10,500, $14,000, and $5,000. She incurred $3,228.14 in interest.

2. The arguments

In Lynda’s 2007 motion, she sought an order to direct Trevor to pay for all expenses incurred by Katrina for attendance at both APU and Citrus Community College.

In opposing the motion, Trevor contended he was not responsible for the APU expenditures because the 1997 stipulated judgment required mutual agreement on which college Katrina would attend and he had not been consulted with, nor agreed to, Katrina’s choice to attend APU. Trevor noted that Katrina admitted that Trevor had not discussed her attendance at APU before she decided to enroll in that university. (See fn. 2.) Trevor stated in part, that “[h]ad Katrina and [Lynda] discussed Katrina’s choice of college with me I would not have agreed to her attending Azusa Pacific University. I do not agree with its emphasis on religion and would have never agreed to Katrina attending college there.” (Trevor did not object to paying for Katrina’s expenses incurred to attend Citrus Community College.)

3. The court’s ruling on Lynda’s motion

A hearing on Lynda’s motion was held on June 28, 2007. Lynda’s counsel represented that Katrina had graduated from APU and had been accepted into graduate school at Claremont Graduate University. The trial court made a factual finding that Katrina sent the August 2004 letter, but that Trevor never received it. The trial court concluded that once Katrina left the message on Trevor’s answering machine in December 2004 that she was going to attend APU, it was incumbent on Trevor to object strenuously. Thus, when Trevor paid the $10,000 and did not object, there was an “acquiescence implicit on his part that she may attend that college.”

On November 20, 2007, the trial court granted Lynda’s motion and ordered Trevor to pay or reimburse for expenses for tuition and books incurred by Katrina to attend Citrus Community College and APU. In so ruling, the court made the following findings: “Katrina . . . by letter dated August 10, 2004 informed [Trevor] of her enrollment at [APU]. [¶] [Trevor] by his email to Katrina in December 2004, acknowledging his daughter’s enrollment, did not object to her choice of post-secondary education, thereby implicitly acquiesced to her enrollment and attendance at APU, and therefore is responsible for the reasonable post secondary educational expenses, including tuition and books, incurred during her attendance as contemplated by the Judgment. [¶] Prior to Katrina[’s] enrollment at APU, she attended Citrus College, a community college and the expenses incurred by her for tuition and books while attending Citrus College are also contemplated by the Judgment and should be paid by [Trevor].”

Trevor appealed from the November 20, 2007 order. We reverse that part of the order directing Trevor to pay for the expenses Katrina incurred at APU.

III.

DISCUSSION

The trial court erred in ordering Trevor to pay for Katrina’s post-secondary education expenses to attend APU.

Trevor contends he was not obligated to pay for the expenses Katrina incurred to attend APU. This contention is persuasive.

In 1992, a judgment of dissolution was entered that included a provision obligating Trevor to pay for Katrina’s post-secondary education for a maximum of five years. This agreement exceeded the statutory requirements that do not mandate such payments. (Fam. Code, § 3901.) By stipulation, this provision was modified in 1997. It continued to obligate Trevor to pay for Katrina’s post-secondary education as long as Katrina’s “choice of post-secondary education [was] discussed and . . . mutually agreed upon by [Lynda, Trevor], and [Katrina].” Additionally, the stipulation required “[Trevor to] pay $2,500 per year for [Katrina’s] educational travel expenses, provided such trips are made.” We construe these provisions under the statutory rules governing contracts (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518). They were designed, as articulated by Trevor’s prior counsel, to enable Trevor to have input “into the selection of the college that Katrina would go to, or the program she would participate in.” Thus, Trevor did not agree to give Katrina a “blank check.” Rather, Trevor agreed to pay for Katrina’s post-secondary expenses as long as there was mutual agreement among himself, Lynda, and Katrina. (Cf. Civ. Code, § 1636 [contracts construed in conformity with parties’ intent].)

The provisions addressing Trevor’s obligation to pay for Katrina’s post-secondary education expenses set forth a condition precedent. (Civ. Code, § 1436.) Katrina’s choice of college had to be discussed with Trevor and mutually agreed to by him before he became obligated to pay Katrina’s college expenses. The phrase “except that the minor child’s choice of post-secondary education shall be discussed and . . . mutually agreed upon by [Lynda, Trevor], and Katrina” limits Trevor’s obligations to pay for Katrina’s college. It requires discussion and mutual agreement.

Katrina admitted that she never discussed her possible attendance at APU with Trevor. Rather, she made a unilateral decision as to which university she would be attending, and after the fact, asked Trevor to pay for that decision. These actions did not comply with the condition in the parties’ negotiated agreement and the stipulated judgment based thereon.

The trial court concluded that once Trevor received Katrina’s December 2004 letter, Trevor was obligated to object if he did not agree with Katrina’s decision to attend APU, and that by forwarding to Katrina the money she requested, Trevor acquiesced to her decision. This conclusion is not soundly based on the facts or the clear meaning of the stipulated judgment.

First, Trevor’s December 18, 2004 email cannot be interpreted in the manner ascribed to it by the trial court. Trevor clearly stated in his email that he expected that the amount he sent to her was to be deducted from other sums he owed. Second, Katrina and Lynda cannot decide on a college, and then ask Trevor for funds to pay for the education at that college. There is no ambiguity in the language of the stipulated judgment. It mandated that Katrina and Lynda had to discuss with Trevor Katrina’s university choice and the three of them had to agree to that choice. Trevor was to have the opportunity to be a participant in the decisionmaking process and the selection of the college where Katrina would attend. Otherwise, Trevor was under no financial obligation to pay for Katrina’s post-secondary education.

This is not a situation in which a parent unreasonably withholds consent. (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 160 [when contract requires satisfaction, the satisfaction must be genuine and not arbitrary]; Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 363 [contract giving party right to be satisfied with a contractual condition, promisor is sole judge of satisfaction as long as conclusion was made in good faith].) This is not a situation in which a parent who promised to pay for education only after discussions and agreement, refused to participate in a discussion about that choice. This was not a situation where a parent’s whereabouts were unknown and thus, it was impossible for discussions to occur. Rather, Katrina and Lynda knew where Trevor could be located according to the racing schedule and never attempted to discuss with him Katrina’s education decision. (Cf. Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 58-61 [discussing objective and subjective tests applied when condition precedent requires promisor’s satisfaction].)

Even if Trevor had learned from Lynda’s July 2004 declaration presented in the first order to show cause, that Katrina hoped to attend APU, Lynda and Katrina had an obligation to bring Trevor into the decisionmaking process. Since they did not do so, Trevor was not bound to pay for their educational choice.

Thus, the order of the trial court must be reversed insofar as it directed Trevor to pay for Katrina’s expenses at APU.

IV.

DISPOSITION

The order is reversed insofar as it directed Trevor to pay for tuition and other expenses Katrina incurred to attend Azusa Pacific University. In all other respects, the order is affirmed. Lynda is to pay costs on appeal.

We concur: KLEIN, P. J. KITCHING, J.


Summaries of

Denman v. Denman

California Court of Appeals, Second District, Third Division
Sep 25, 2008
No. B205132 (Cal. Ct. App. Sep. 25, 2008)
Case details for

Denman v. Denman

Case Details

Full title:LYNDA BECK DENMAN, Plaintiff and Respondent, v. TREVOR DENMAN, Defendant…

Court:California Court of Appeals, Second District, Third Division

Date published: Sep 25, 2008

Citations

No. B205132 (Cal. Ct. App. Sep. 25, 2008)