Opinion
A161680
01-28-2022
In re Marriage of HALCYON FOSTER and BARBARA FIGARI. v. BARBARA FIGARI, Respondent. HALCYON FOSTER, Appellant,
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. FL1202069)
Kline, J. [*]
Appellant Halcyon Foster and respondent Barbara Figari participated in a judicially supervised settlement conference related to their family law case, and then stipulated orally before the court that they had reached a settlement agreement resolving the outstanding issues between them. Among other terms, Figari agreed to dismiss an Arizona lawsuit she had commenced against Foster, and Foster agreed to waive outstanding child support arrearages owed by Figari. The court subsequently entered an order that it deemed reflective of the agreement reached by the parties.
Pursuant to the terms of the settlement agreement, Figari petitioned for dismissal of the Arizona lawsuit. Foster requested that the hearing on the petition be moved up to an earlier date. At that hearing, Foster's counsel indicated that the dismissal was one of the terms of the parties' settlement 1 agreement, and the settlement agreement "was entered and essentially binding at this point." The Arizona court granted the dismissal.
Foster filed this appeal only a few days after that dismissal. She now argues, for the first time, that the order on the settlement agreement is invalid as a matter of law because (1) the court lacked authority to enter the order without a pending motion to enforce the settlement agreement; (2) the settlement agreement impermissibly waived child support arrearages; and (3) the settlement agreement modified the existing parental timeshare for the parties' minor son, increasing separation from his sibling without evidence of compelling circumstances to do so.
Figari responds that Foster should be equitably estopped from pursuing these arguments, given her prior stipulation to the settlement agreement and subsequent position that the Arizona case had to be dismissed pursuant to that binding agreement. We agree and affirm.
We grant Figari's request for judicial notice of the first amended complaint and December 10, 2020 hearing transcript. (Roe v. Foster (Super. Ct. Yuma County, 2020, No. S1400CV202000229).) (Evid. Code, § 452, subd. (d); see also Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [appellate court may exercise its discretion to take judicial notice of records not before trial court].) We deny her request for judicial notice of Arizona Revised Statutes sections 12-514 and 13-1405, as well as the order denying summary judgment in Roe, as unnecessary to our resolution of this appeal. (See, e.g., TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 146, fn. 3.)
Foster and Figari were married in 2008. There were two minor children of the marriage. The judgment of dissolution was entered in 2013. It provided that Foster and Figari would have joint legal and physical custody of their minor son, but Foster would have sole legal and physical custody of their minor daughter. It also provided that both children would 2 reside primarily with Foster, and Figari would make child support payments to Foster, but set forth a timeshare schedule regarding the parties' son.
In February 2020, Figari filed a request for order to modify custody and visitation, and for move away orders. She sought sole legal and physical custody of the parties' son, and claimed that he should reside primarily at her home in Arizona. Foster opposed the request, and filed her own request for order seeking sole legal and physical custody of their son, as well as modification of the child support order.
Figari subsequently filed a civil lawsuit against Foster for sexual assault/sexual abuse/molestation, breach of fiduciary duty, child abuse, and intentional infliction of emotional distress. It alleged that Foster had engaged in sexual conduct with Figari while she was a minor. The operative complaint requested, among other things, general and special damages, punitive or exemplary damages, and civil penalties.
On September 24, 2020, Foster and Figari participated in a six-hour judicially supervised settlement conference in their family law matter. According to the court, the parties reached a "global resolution of all existing claims" against each other. The court went on the record and recited the terms of the settlement agreement. The parties released "any and all" existing claims they had against each other. Figari would dismiss the Arizona lawsuit against Foster, and Foster would waive any outstanding child support arrearages owed by Figari. With respect to the parties' son, Foster and Figari would continue to share joint legal and physical custody. While schools were in remote learning (triggered by COVID-19), their son would equally split time between the two households, but would return to "the default" once school resumed in person. 3
Foster and Figari then testified under oath that they understood the terms of the agreement, were in agreement with those terms, and had agreed freely and voluntarily. Following that testimony, the court stated that the settlement agreement "now becomes a binding and enforceable agreement as of this moment." The court then offered to memorialize the agreement in writing so that the parties would have the necessary documentation for third parties and the court file.
The next day, on September 25, 2020, Figari submitted a request for dismissal of the Arizona lawsuit and the request was calendared for hearing.
On September 30, 2020, the court circulated a draft order to the parties. On October 14, 2020, counsel for Foster submitted a six-page letter seeking edits that did not reflect the terms of the agreement recited on the record. He requested, for example, additional language that the new remote learning timeshare schedule not be factored into any child support calculations and that the existing summer schedule be "abandoned" if remote learning continued through the end of the school year.
Foster's counsel also took issue with a sentence in the draft stating that the dismissal of the Arizona action was "entered into purely for the benefit of abandoning disputes in the best interest of the Parties minor child." Counsel explained: "we know that Ms. Foster agreed to waive her claim for a sum approaching $100,000 in child support arrearages and statutory interest thereon in return for Ms. Figari's dismissal with prejudice of her tort action filed in Arizona." He questioned whether the sentence, as drafted, violated contract law if the "best interest" of the child was insufficient to constitute consideration for the parties' agreement.
On October 19, 2020, the court entered an order it deemed reflective of the settlement agreement reached by the parties. The order included 4 clarifications requested by the parties "when not contradictory to the agreement." The sentence in the draft regarding the "best interest" of the parties' minor child was omitted from the final order.
On December 10, 2020, the Arizona court held a hearing on Figari's request for dismissal of her civil lawsuit. Foster had previously requested that the hearing be moved up to an earlier date. At the hearing, counsel for Figari explained that she had sought dismissal pursuant to the parties' settlement agreement, but expressed concern that Foster had recently filed new claims in the California family law matter, in violation of that agreement. Counsel for Foster responded that the parties had already agreed to dismissal of the Arizona case, the settlement agreement was "essentially binding at this point," and Figari could not now "renegotiate on that." He argued that any dispute regarding Foster's compliance with other terms of the settlement agreement was "outside of this [Arizona] forum." He referenced Arizona Rules of Civil Procedure, rule 80, subdivision (a), which provides: "If disputed, no agreement or consent between parties or attorneys in any matter is binding, unless: (1) it is in writing; or (2) it is made orally in open court and entered in the minutes." He represented that the settlement agreement was binding because it was made orally in court and then in writing per the October 19, 2020 order. The Arizona court concluded that the "provisions" of rule 80 did not apply because "nothing has been presented to the Court that indicates . . . that the agreement is disputed." The Arizona court dismissed the action.
A few days later, on December 16, 2020, Foster filed her notice of appeal. 5
DISCUSSION
In this appeal, Foster challenges the validity of both the underlying terms of the settlement agreement, as well as the court's authority to enter an order reflecting those terms. Figari disputes the merits of these claims, but argues first that Foster should be equitably estopped from asserting them altogether. We thus begin with the issue of equitable estoppel. (See, e.g., Doe v. Marten (2020) 49 Cal.App.5th 1022, 1032, fn. 2 (Marten) [declining to reach additional arguments upon conclusion that defendant must be deemed equitably estopped from asserting defense].)
"The doctrine of equitable estoppel is founded on concepts of equity and fair dealing." (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) "The essence of an estoppel is that the party to be estopped has by false language or conduct 'led another to do that which he [or she] would not otherwise have done and as a result thereof that he [or she] has suffered injury.'" (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 16.) Equitable estoppel is thus "not a punitive notion, but rather a remedial judicial doctrine employed to insure fairness, prevent injustice, and do equity" that "stems from the venerable judicial prerogative to redress unfairness in the application of otherwise inflexible legal dogma, based on sound public policy and equity." (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1270 (Spray).)
"' "Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he [or she] must intend that his [or her] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he [or she] must rely upon the conduct to his 6 [or her] injury." '" (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37 (Honeywell), quoting City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 489.)
We conclude that the elements of equitable estoppel are satisfied here. Foster orally stipulated on the record that she understood and agreed to the terms of the settlement agreement. The court then explained that the settlement agreement "now becomes a binding and enforceable agreement as of this moment." Only days before filing this appeal, Foster continued to seek dismissal of the Arizona case based on the terms of the settlement agreement. Indeed, her counsel explicitly argued at the hearing that the settlement agreement "was entered and essentially binding at this point" and thus the Arizona case should be dismissed. Foster was thus fully apprised of the facts here: that despite her previous stipulation to the settlement agreement and her continuing position that the Arizona case should be dismissed based on the settlement agreement, she would soon be challenging the validity of the terms of the agreement and related court order. (Honeywell, supra, 35 Cal.4th at p. 37.)
The record also demonstrates that Foster intended Figari to act upon the stipulation by dismissing the Arizona case with prejudice. The dismissal was a key term of the agreement, and prior to entering the stipulation the parties discussed "at length" how they would be providing the requisite notice of such dismissal. (Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 582 [estoppel established where defendant "manifestly intended" its representations to be acted upon by petitioners].) Moreover, it was reasonable for Figari to rely on Foster's position in the Arizona case that it should be dismissed because the settlement agreement had been entered and was binding on the parties. (See Marten, supra, 49 Cal.App.5th at p. 1032 7 [plaintiff reasonably believed that defendant was willing to participate in arbitration based on his position in response to arbitration demand].)
Unaware of Foster's impending challenges to the validity of the settlement agreement and order, Figari relied on Foster's conduct by petitioning for dismissal of the Arizona case and maintaining this position at the dismissal hearing. Had Figari known that Foster would be raising these challenges only a few days later, Figari could have presented evidence to the Arizona court that the settlement agreement was disputed. Instead, Figari suffered detriment because the Arizona court dismissed her lawsuit against Foster. (See Marten, supra, 49 Cal.App.5th at p. 1030 [estoppel established where plaintiff could no longer file timely lawsuit based on defendant's conduct].)
Foster's arguments to the contrary do not alter our conclusion. Foster contends that her stipulation to the agreement is insufficient to estop her challenge to the court's entry of the order because the stipulation occurred before the order was entered. This argument, however, minimizes the extent of Foster's conduct. Not only did Foster stipulate to the settlement agreement, but she then continued to assert her position that the Arizona case should be dismissed because of that agreement. In other words, Foster maintained that the agreement was valid until she could reap its benefit to her-dismissal of the Arizona case-before immediately reversing her position and filing this appeal to avoid her obligations under the agreement. This is precisely the kind of unjust and unfair result against which equitable estoppel is employed. (Spray, supra, 71 Cal.App.4th at p. 1270.)
Foster also argues that equitable estoppel is not appropriate here because her appeal raises "an issue of law, not equity." What this argument 8 overlooks, however, is that equity lies at the heart of family law. "The family law court is a court of equity and fairness." (In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1174.) "Family law cases 'are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity.'" (In re Marriage of Egedi (2001) 88 Cal.App.4th 17, 22- 23.) "Those who seek equity, must do equity and have 'clean hands.'" (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 38.) Given that Foster and Figari reached settlement "[i]n an effort to remove the existing high conflict" in their family law matter, we conclude that the application of equitable principles to the parties' conduct is entirely appropriate here. To the extent that Foster expresses concern over her children's rights, we note that the family court maintains continuing jurisdiction involving the custody and care of minor children, and its ultimate aim is to serve their best interests and welfare. (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 209; Smith v. Smith (1948) 85 Cal.App.2d 428, 434.)
Finally, we recognize that "the existence of equitable estoppel generally is a factual question for the trier of fact to decide" (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1263) ill-suited to this court and that given the procedural posture of this case, the issue was raised for the first time on appeal. Figari has supplied us with records from the Arizona proceedings, however, of which we have taken judicial notice. The parties have also been afforded an opportunity to address the equitable estoppel issue in their briefs, as well as an opportunity (which was declined) for oral argument.
We thus conclude Foster is equitably estopped from challenging the validity of the underlying terms of the settlement agreement and the issuance of the related court order. Given this conclusion, we need not 9 address the merits of these challenges. (Marten, supra, 49 Cal.App.5th at p. 1032, fn. 2.) We also deny Figari's request, made in her responding brief, that we find this appeal to be frivolous and issue sanctions, as Figari failed to make a proper motion with materials supporting the amount of any monetary sanctions sought. (Cal. Rules of Court, rule 8.276(b).)
DISPOSITION
The October 19, 2020 order after settlement conference is affirmed. Costs on appeal are awarded to Figari. 10
We concur: Richman, Acting P.J., Stewart, J. 11
[*]Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.