Opinion
B226755
12-21-2011
In re Marriage of NATASHA and NORBERT GEHR. NATASHA GEHR, Appellant, v. NORBERT GEHR, Appellant.
Brian J. Kramer for Appellant Natasha Gehr. Law Offices of Bernard N. Wolf, Bernard N. Wolf, Jaffe and Clemens, Daniel J. Jaffee for Appellant Norbert Gehr.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BD483136)
APPEALS from a judgment of the Superior Court of Los Angeles County. Mark A. Juhas, Judge. Affirmed.
Brian J. Kramer for Appellant Natasha Gehr.
Law Offices of Bernard N. Wolf, Bernard N. Wolf, Jaffe and Clemens, Daniel J. Jaffee for Appellant Norbert Gehr.
Natasha Bulgakova Gehr contends that the trial court erred by finding that her former husband, Norbert Gehr, retained a right to reimbursement for separate property funds he used to buy a condominium. We find that the trial court appropriately relied on extrinsic evidence in construing the terms of the controlling premarital agreement, and its decision was proper.
We also find that the trial court did not err by awarding Natasha approximately 80 percent of her attorney fees at issue, and that it correctly determined that a no-contest clause in the premarital agreement was not triggered. Accordingly, we affirm.
FACTS
The Marriage
The marriage between Norbert and Natasha was brief and tempestuous. Looking back, the failure of their relationship may not have been entirely surprising since, as the trial court noted, "money played a central role in this marriage."
Norbert met Natasha in November 2005 and proposed to her in January 2006. For approximately a year, the two actively negotiated the terms of a premarital agreement with the assistance of their respective attorneys. By June 2007 the parties executed the premarital agreement, and they were married in July. Norbert was 66 years old and Natasha was 28.
The premarital agreement ran about 50 pages long. It provided, among other things, that during the marriage Norbert would provide Natasha with "gifts" of: $10,000 per month; a 5 percent per annum equity ownership interest in Norbert's lavish personal residence; a $250,000 savings account; and an Aston Martin model DB9 with a price tag of $185,000. Aside from the items listed in the premarital agreement, Norbert gave other gifts to Natasha prior to and during their marriage, including pieces of jewelry cumulatively valued at $1,640,000.
A schedule attached to the premarital agreement stated that Norbert's net worth was substantially greater than $100 million.
The money and the gifts were apparently not enough to make the marriage work, since Natasha left the family residence in January 2008. She moved back into Norbert's home in March, only to move out again about five days later. Natasha filed a petition for dissolution of marriage on April 22, 2008, and the marriage was deemed dissolved by the superior court as of December 31, 2008. The Condominium
Trial on reserved issues was heard December 21-24, 2009, before the Honorable Mark A. Juhas. The main issue of dispute at trial was the parties' respective rights to a condominium in Beverly Hills.
Beginning around the time they started seeing each other, Natasha discussed with Norbert her desire to have a condominium. She told him that she "like[d] real estate." After looking for suitable properties, Norbert agreed to buy the Beverly Hills condominium as an "investment property."
On December 18, 2007, Norbert opened escrow to acquire the condominium in his name. But, after Norbert and Natasha fought on January 13, 2008, Norbert cancelled the escrow, just prior to the time it was scheduled to close. Norbert filed for dissolution of marriage on January 17, 2008, and Natasha moved out immediately afterward.
After Natasha moved out, Norbert resolved to win her back. On January 25, 2008, he purchased the Beverly Hills condominium, using $935,000 of his separate property to do so. A few days later, he dismissed his petition for dissolution of marriage.
Norbert testified that he and Natasha engaged in discussions regarding her possible return. According to Norbert, Natasha did not like the fact that the condominium was in his name, not hers, and she called him on a daily basis to have the condominium transferred. Norbert stated that Natasha's return to the marriage was a frequently discussed and acknowledged condition to his transfer of the condominium to her, and she told him that if he signed the condominium over and acceded to other demands, she would return to his house and resume the marriage. Natasha, on the other hand, testified that she told Norbert she did not want the condominium because she did not want to resume the marriage. She stated that she agreed to accept the condominium only after he told her that resumption of the marriage was not a condition. Whatever the case, on February 11, 2008, Norbert executed a quitclaim deed, in which "for a valuable consideration" he quitclaimed the condominium to Natasha "as her sole and separate property." The Trial Court's Decision
Following trial, on March 4, 2010, the trial court issued a tentative decision and proposed statement of decision. The trial court noted that the parties' rights to the condominium were controlled by the premarital agreement and an amendment to the premarital agreement, which was signed on the same date as the quitclaim deed. The court found that the condominium was Natasha's sole and separate property, but that Norbert retained a reimbursement right to the separate property funds he used to purchase the condominium.
Natasha filed objections to the proposed statement of decision pursuant to California Rules of Court, rule 3.1590. Following a further hearing, the trial court issued a "ruling on submitted matter" that modified the previous proposed statement of decision in certain respects, but came to the same primary conclusion—that Natasha owned the condominium but Norbert retained his right to reimbursement for purchasing the property. Since the condominium had declined in value, however, the court did not require Natasha to reimburse the full amount expended by Norbert; rather, Natasha was also given the option of returning the property to him.
Norbert was ordered to prepare a proposed final judgment and statement of decision. Norbert prepared these documents, both of which accurately reflected the trial court's decision, and both of which were entered by the court without objection. Among other provisions, the judgment required Natasha to reimburse Norbert the cost of the condominium or to return the condominium within 15 days. Furthermore, Norbert was ordered to pay $152,000 to Natasha's attorney for fees.
Natasha's belated objection (made on appeal) to the statement of decision is not well taken.
Although not in the record, it appears from the briefs that Natasha timely returned the condominium.
DISCUSSION
Natasha appeals from the judgment ordering her to reimburse the cost of the condominium or return the condominium to Norbert. Natasha contends that the condominium was a gift and therefore no reimbursement was required. Natasha also appeals from the trial court's award of attorney fees, arguing that the amount awarded was too little.
In a largely protective cross-appeal, Norbert argues that the award of fees to Natasha was excessive and, separately, that the trial court erred by refusing to enforce a no-contest clause in the premarital agreement.
I. Reimbursement or Return of the Condominium
A. The Premarital Agreement and Amendment
As recognized by the trial court, the parties altered their legal relationship under the Family Code by entering into the premarital agreement and the subsequent amendment. (See Fam. Code, § 1612.) We examine the terms of these documents in order to discern the mutual intent of the parties. (See Civ. Code, § 1636.)
The premarital agreement itself contained no mention of the condominium. The amendment—which made two substantive changes to the premarital agreement—did. Previously, the premarital agreement required Norbert to sell his main residence in connection with his obligation to give Natasha a 5 percent per annum equity ownership interest in the property. The amendment allowed Norbert to retain the property and simply buy out Natasha's interest in the event of separation. More pertinent to this appeal, the amendment also provided for the purchase and transfer of the condominium. Section 17.2 of the premarital agreement was amended by deleting the requirement that Norbert sell his property and by adding a provision regarding the condominium. The amended version read as follows: "17.2 As an additional gift to NATASHA, NATASHA shall acquire a 5% interest on each anniversary date of the parties' marriage in the equity of the principal residence utilized by NORBERT and NATASHA, to a maximum of 10 years of marriage. . . . NATASHA's interest shall be computed after deducting any taxes owed by NORBERT and NATASHA on the total gain, in proportion to their respective ownership share applicable at the time of the sale, but with no further taxes to be paid by NATASHA after she receives her share of the net after-tax equity. [¶] In addition, NORBERT shall purchase a condominium in Beverly Hills in the price range of $800,000 to $1,000,000 dollars, title to which shall be held by NATASHA in her sole name as her separate property."
Norbert argued, and the trial court agreed, that Norbert retained a right to reimbursement for his separate property funds used in acquiring the condominium pursuant to section 11.3 of the premarital agreement, a section that was not changed or affected by the amendment. Section 11.3 stated: "Reimbursement. If any of the separate property of one party is invested in or is used to acquire, in whole or in part, any property that is the separate property of the other party, the party whose property was so invested or so used does not thereby acquire any interest in the separate property of the other party. The party whose separate property was so invested or so used is entitled only to reimbursement of any of the property so invested or so used." (Italics added.)
Natasha argues that the condominium was a "gift" not subject to reimbursement. First, Natasha points out that the provision for the condominium in the amendment fell under section 17 of the premarital agreement, a section titled "gifts after marriage." Second, Natasha contends that the condominium was subject to section 9.2 of the premarital agreement, which provided that Norbert and Natasha could give each other gifts, provided that the gift was "evidenced by a written instrument signed by the donor." Third, Natasha also contends that the condominium was subject to section 6.1 of the agreement, which provided that Natasha could acquire separate property by way of gifts from Norbert or from the agreement, and with respect to such separate property, "Norbert shall not have or acquire any right, title or interests thereto."
B. Analysis of the Relevant Provisions
Premarital agreements are subject to the general rules of contract interpretation. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 13; In re Marriage of Benjamins (1994) 26 Cal.App.4th 423, 429.) When a premarital agreement is unambiguous, our review is de novo, and we apply the language of the agreement to the undisputed facts as a matter of law. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) Thus, when the language of the agreement is "clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language," and "[e]xtrinsic evidence of the parties' intentions is inadmissible to vary, alter, or add to the terms of an unambiguous agreement." (Id. at p. 1440.)
When an ambiguous term is contained in the agreement, however, extrinsic evidence is admissible to prove the parties' intent with respect to the term. (In re Marriage of Iberti, supra, 55 Cal.App.4th at p. 1439.) Extrinsic evidence may also be used to explain language that appears to have a plain meaning. (See Pacific State Bank v. Greene (2003) 110 Cal.App.4th 375, 385 ["The test of whether parol evidence is admissible to construe an ambiguity is not whether the language appears to the court to be unambiguous, but whether the evidence presented is relevant to prove a meaning to which the language is 'reasonably susceptible'"].) When the trial court receives extrinsic evidence to resolve the meaning of an ambiguous contractual term, we review the ruling to determine if it is supported by substantial evidence. (Burch v. Premier Homes, LLC (2011) 199 Cal.App.4th 730, 741.)
The trial court relied on extrinsic evidence in determining that Norbert maintained a right of reimbursement under the premarital agreement. In its May 21, 2010 ruling, the trial court wrote: "In light of all of the facts in this matter and in light of the language of the contract itself, the court cannot say that this rises to the level of an outright gift to the petitioner with absolutely no right of reimbursement to the respondent." The statement of decision contained similar language. Implicitly, the trial court found that the language of the premarital agreement (as amended) was not clear and unambiguous with respect to the condominium.
We agree that the premarital agreement (as amended) did not clearly classify the condominium as a gift from Norbert to Natasha. While Natasha points out that the premarital agreement was amended to list the condominium under section 17 (the "gifts" section), we note that, unlike all other items listed in the section, the condominium was not specifically labeled a "gift." Each of the other things gifted to Natasha in the agreement were labeled "gifts," by use of language such as "Norbert agrees to pay to Natasha as tax-free gifts . . ." and "as an additional gift to Natasha . . . ." In contrast, the paragraph pertaining to the condominium was the only paragraph in the section that did not contain the word "gift."
Natasha is correct that the term "in addition," found at the beginning of the paragraph pertaining to the condominium, is a phrase that has the meaning, "as an extra or additional thing (to something else); furthermore, besides." (Oxford English Dict. (3d ed. 2010).) But we do not find this phrase dispositive in itself. The phrase in the agreement did not necessarily mean "as an additional gift"; rather, the phrase may have been used simply to identify that an additional amendment to the premarital agreement was being made (i.e., "in addition" to the amendment allowing Norbert to buy out Natasha's ownership interest in his house).
Furthermore, relevant principles of statutory construction provide support for a determination that the condominium was not a gift. If possible, a contract must be interpreted in such a manner that "gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473.) Natasha's asserted interpretation contravenes this rule by placing the condominium—which was not explicitly labeled a "gift"—in the same category as items that were specifically labeled "gifts," thereby rendering phrases such as "as an additional gift to Natasha" mere surplusage. (See Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633 ["If possible, we should give effect to every provision and avoid rendering any part of an agreement surplusage"]; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 957.) Her position that the condominium should be classified as a "gift" is also contrary to the rule that implied terms are not favored by law and may be read into a contract "only upon grounds of obvious necessity." (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1222.)
Moreover, we find that even if the transfer of the condominium qualified as a "gift" under the terms of the premarital agreement, the further terms of the premarital agreement did not necessarily preclude reimbursement of the separate property expended by Norbert to purchase the condominium. Section 11.3 did not contain a "carve out" for "gifts." It simply provided that a party whose separate property was used to acquire property of the other was entitled to reimbursement of the separate property; it is undisputed that Norbert used his separate property to acquire the condominium. Section 6.1, the provision relating to "separate property" relied on by Natasha, did not prohibit reimbursement, but instead provided that Norbert would not acquire any right, title, or interest in Natasha's separate property, including all proceeds from sale or exchange thereof. The trial court's ruling—that the condominium was Natasha's sole and separate property, but that Norbert retained a reimbursement right—was not contrary to this provision. Finally, another provision relied on by Natasha, section 9.2, which allowed for the giving of "gifts," actually supported Norbert's position. Far from limiting the applicability of section 11.3, the final sentence of section 9.2 stated, "No gift from one party to the other shall be interpreted as a revocation, diminution or modification of this Agreement."
In sum, the trial court did not err by determining the agreement was ambiguous and by receiving and relying on extrinsic evidence to determine Norbert's right to reimbursement. Our further review, therefore, is limited to the substantial evidence standard. At trial, the parties presented conflicting extrinsic evidence in support of their respective positions. "As long as the trial court's order was supported by substantial evidence in the record, any evidentiary conflict must be resolved in favor of the prevailing party . . . and any reasonable interpretation of the writing by the trial court will be upheld." (Burch v. Premier Homes, LLC, supra, 199 Cal.App.4th at p. 742.)
Natasha argues that the language of the amendment to the premarital agreement should have been construed in her favor, since Norbert's attorneys drafted the amendment. We do not agree. The rule that Natasha would rely on, which is embodied in Code of Civil Procedure section 1654, "is to be used only when there is no extrinsic evidence available to aid in the interpretation of the contract or where the uncertainty cannot be remedied by other rules of interpretation. [Citations.] The rule does not stand for the proposition that, in every case where one of the parties to a contract points out a possible ambiguity, the interpretation favored by the nondrafting party will prevail." (Rainier Credit Co. v. Western Alliance Corp. (1985) 171 Cal.App.3d 255, 263.)
The evidence presented at trial supported the finding that the parties did not intend to insulate the condominium from the reimbursement provision in section 11.3. Norbert testified that he did not consider the condominium a gift; rather, it was supposed to be transferred in exchange for Natasha's return to the marriage, a condition they both understood. He also testified that he always expected to be reimbursed for the condominium. We are mindful that, as the reviewing court, we do not have the benefit of assessing the parties' credibility. This was necessarily a function of the trial court and we defer to its determination, even on testimony that could be subject to suspicion. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968; Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) Here, there was substantial evidence to support the trial court's determination. We therefore do not reverse. II. Denial of Motion to Dissolve or Amend Restraining Order.
Natasha next argues that the trial court erred by refusing to dissolve or amend a restraining order that enjoined Natasha from selling or hypothecating the condominium. Natasha based her motion to dissolve or amend the restraining order on section 8 of the premarital agreement, which prohibited both parties from interfering with the other party's ownership, management, use, or enjoyment of separate property.
We find that the trial court's denial of Natasha's request was sensible and fair. Natasha brought her motion after the court had rendered its tentative decision and shortly before the final ruling. By the time the court ruled on Natasha's motion, Norbert's right to reimbursement was established.
The judgment stated: "Until such time as [Natasha] returns full title to said condominium to [Norbert] or reimburses him pursuant to . . . this Judgment on Reserved Issues, [Natasha] is restrained and enjoined from selling, attempting to sell, contracting to sell, or transferring or borrowing against or encumbering the condominium." Family Code section 290 grants the trial court broad powers to enforce judgments. Preventing Natasha from selling or hypothecating the condominium was the only reasonable means of ensuring that she complied with the judgment by returning the condominium. The alternative (allowing a sale or encumbrance) would have required Natasha to reimburse Norbert the $935,000 he spent in acquiring the condominium. Even if she had the money to pay Norbert, actual reimbursement would have severely disadvantaged Natasha, since the value of the condominium had diminished substantially since it was purchased.
It also surely would have resulted in more litigation, in a case that had already seen an extraordinary amount of litigation over a matter that could have been much more easily resolved.
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The trial court acted equitably and fairly by allowing Natasha to return the condominium rather than forcing her to reimburse the purchase price (a result that a literal construction of the agreement may have required). Its order prohibiting sale or hypothecation was consistent with its reasoned judgment.
III. Attorney Fees Award
Both parties take issue with the award of attorney fees to Natasha. Natasha was awarded a total of $239,000 in fees, an amount constituting approximately 80 percent of the fees she incurred through the December 2009 trial. Natasha argues that she should have been awarded more. Norbert counters that she was awarded too much. We find both parties' arguments lacking in merit.
First, it appears that Natasha is confused about the scope of the trial court's award of fees. On appeal, Natasha argues that she should not only be awarded fees incurred through trial, but that she should also be awarded fees for the vigorous litigation conducted after trial. To (hopefully) clarify matters, we note that the trial court's May 21, 2010 ruling explicitly stated: "[T]he court is limited to the petitioner's fee request of 'almost $300,000' as requested at the time of trial. If the petitioner believes that she is entitled to further fees following the trial, she can certainly ask for them but not as part of this request." The statement of decision contained similar language. Thus, a substantial portion of the fees that Natasha claims she was unfairly denied has not yet been adjudicated by the trial court. Her asserted entitlement to these fees is an issue for the trial court, not for us, to decide.
Next, Natasha argues that the trial court should have awarded more in fees pursuant to sections 8 and 19.11 of the premarital agreement. We review the trial court's award of attorney fees for an abuse of discretion. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 1151; Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Based on our review of the fees award, we find no abuse. Sections 8 and 19.11 were relatively limited in scope. Section 8, pursuant to which Natasha was awarded $17,000 per the judgment, authorized an award of fees to a party forced to respond to interference by the other party with his or her separate property. Section 19.11, pursuant to which Natasha was awarded $135,000, authorized an award to a party who incurred fees because the other party failed to comply with spousal support positions. Neither of these sections applied to a substantial portion of the fees incurred by Natasha. We find no reason to apply the sections more broadly than the trial court's already-generous application.
We also find that the trial court did not abuse its discretion by declining to award need-based fees to Natasha pursuant to Family Code sections 2030 and 2032. Natasha was awarded 80 percent of all fees at issue pursuant to the contractual provisions noted above. Section 2030 limits recovery to an amount "reasonably necessary" for attorney fees. (Fam. Code, § 2030, subd. (a).) It is not clear to us that Natasha was awarded anything less than what was reasonably necessary. The trial court correctly recognized this issue by stating, "Depending on whom the court believes as to the property value, the petitioner alone has expended fees approaching the current value of the condominium. Any award of fees must be 'reasonable'; the gross number of the fees charged in this matter may push beyond the reasonable barrier."
In light of the high amount of fees requested and awarded, it was appropriate for the trial court to carefully scrutinize whether Natasha established grounds for a further award of fees. The court did not err by taking into consideration Natasha's varying and suspect presentation of her financial situation: "[P]etitioner is claiming to be virtually bankrupt; her December 15, 2009 FL-150 indicates that her expenses are $14,964 per month, with auto expenses of $1,000 per month. In her May 17, 2010 FL-150 her expenses advanced to $16,764 per month with an increase of $1,700 in auto expenses. . . . There is no real explanation for the fact that on one hand she claims to be in financial straights [sic], but on the other hand her FL-150's continue to be inconsistent and paint a far different picture." The trial court sufficiently considered the parties' relative circumstances, the brief duration of the marriage, and the limited scope of their dispute. Its decision to hold Natasha responsible for 20 percent of her own fees was not in error.
Norbert's cross-appeal on the trial court's award of fees is similarly lacking in merit. Norbert contends that the trial court erred by awarding $17,000 to Natasha pursuant to section 8 of the premarital agreement, since the court had earlier awarded her $2,500 in fees in connection with a successful motion to expunge lis pendens. According to Norbert, the second fee award constituted an improper double recovery. The fees awarded on the successful motion to expunge, however, were requested pursuant to Code of Civil Procedure section 405.38, which specifically authorizes an award of fees on such a motion. Section 8 had a broader scope, as it applied to activity required to address interference by the other party with separate property. Therefore, the trial court had discretion to award fees pursuant to section 8 separate from fees awarded pursuant to Code of Civil Procedure section 405.38. In any event, to the extent the trial court characterized the fees awarded pursuant to Code of Civil Procedure section 405.38 and section 8 as being for the same work, Norbert waived any claim of error by failing to object to this aspect of the tentative statement of decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130.)
IV. The No-Contest Clause
In his cross-appeal, Norbert also contends that the trial court erred by refusing to enforce the premarital agreement's no-contest clause. Norbert argues that if the trial court properly applied the clause, it would have found that Natasha forfeited her right to $40,000 in spousal support payments and $130,187 for her interest in Norbert's residence.
The no-contest clause, as stated in the premarital agreement, was unilateral. It provided in pertinent part: "27. No Contest Clause. To the maximum extent permitted by law, if NATASHA, in any manner, challenges or assists in the challenge of the validity or enforceability of any provision of this Agreement . . . the Court shall have no jurisdiction to confirm or award to NATASHA anything that she receives under and pursuant to this Agreement. [¶] . . . A challenge to this Agreement includes, but is not limited to, filing any action in any Court which calls into question the validity or enforceability of this Agreement, or any portion thereof, the asking of any questions of the parties, their attorneys or any other party in interrogatories, requests for admissions or at a deposition which calls into question the validity or enforceability of this Agreement, and/or any allegation in motions, orders to show cause, or in declarations that this Agreement is in whole or in part promotive of divorce . . . is against public policy, or that all or part of this Agreement was procured by either party by way of fraud, undue influence, duress or misrepresentation, or NATASHA seeking to obtain or collect benefits greater than or different from those provided to her in this Agreement."
The trial court declined to enforce the no-contest clause on two grounds. It found that the clause did not bear a reasonable relationship to the damages a party could suffer in the case of breach, and therefore it was against public policy and void. The court also found that Natasha never challenged the validity of the premarital agreement and in fact attempted to enforce its provisions.
Since we agree with the trial court that Natasha did not challenge the validity or enforceability of the terms of the premarital agreement, but instead sought enforcement and clarification of the terms, we need not decide whether the no-contest clause violated public policy. While Norbert litigated theories such as undue influence, fraud, and mistake that (if asserted by Natasha) may have violated the no-contest provision, Natasha never did so.
"Because a no contest clause results in a forfeiture . . . a court is required to strictly construe it." (Burch v. George (1994) 7 Cal.4th 246, 254.) Strictly construing the no-contest clause here, Natasha's litigation activity was certainly permissible, and the conduct highlighted by Norbert does not lead to a different conclusion.
Natasha's service of standard family law form interrogatories did not present a challenge to the premarital agreement. Rather, it was prudent conduct that would be expected of any party engaged in heated litigation, particularly when one considers that much of the litigation was driven by Norbert. Her requests for information on Norbert's income and assets could have garnered information relevant to a need-based fee award. Norbert also failed to show that Natasha violated the no-contest clause by bringing an order to show cause that sought sanctions. The seeking of sanctions did not constitute a challenge to the enforceability of the agreement, nor did the offhanded (and unclear) statement that the premarital agreement might be challenged (by "respondent"). Furthermore, Norbert has failed to provide a reporter's transcript for the hearing in question, a transcript we would need to examine before we could even consider finding that the no-contest clause was violated. As for Natasha's purportedly inadequate response to a settlement demand, a demand that was craftily designed to elicit an involuntary admission that Natasha was challenging the premarital agreement, suffice it to say that we are not persuaded.
Lastly, Norbert argues in his reply brief (but not his opening brief) that Natasha violated the no-contest clause by challenging the enforceability of the clause itself. Putting aside that this issue was waived due to Norbert's failure to raise it in his opening brief (see Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 129), we find that the contention lacks merit. As stated by the trial court, "Mr. Gehr has worked very hard in this matter to manufacture Ms. Gehr's violation of the no contest clause. It is true that Ms. Gehr does not believe that the no contest clause is appropriate and has made that clear but only in response to the respondent's position. Mr. Gehr cannot raise an issue to induce a challenge to the [premarital agreement] then hide behind the no contest clause."
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
CHAVEZ, J.