Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Thomas Trent Lewis, Judge, No. BD412478
Lipton & Margolin, Hugh A. Lipton and Robert L. Shibel for Appellant.
Wendy A. Herzog and De Goff and Sherman, Richard Sherman and Victoria J. De Goff for Respondent.
PERLUSS, P. J.
Family Code section 4337 (section 4337) provides, “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” Applying section 4337, the trial court found Linda Carpenter’s entitlement to spousal support from her former husband, Gregory Thagard, had terminated by operation of law upon her remarriage. On appeal Carpenter contends the trial court erred because the stipulated judgment agreed to by the parties and entered by the court provided spousal support would terminate only upon the death of either party or their written agreement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Stipulated Judgment
Carpenter and Thagard were married for approximately 11 and one-half years before legally separating in April 2004. Their marriage was dissolved by a stipulated judgment entered on May 24, 2005. The stipulated judgment had been prepared by Carpenter’s attorney. Although Thagard was advised to obtain counsel and had consulted with friends who were attorneys, he was not represented at the time he signed the proposed stipulated judgment.
Paragraph 3A of the stipulated judgment provides Thagard will pay Carpenter $9,500 per month in spousal support “commencing September 1, 2004 and continuing until such time as [Carpenter] dies, [Thagard] dies, Stipulation of the parties in writing or further order of the Court, whichever first occurs. This Spousal Support Order shall be non-modifiable and shall not be terminated by this Court, both as to amount and/or duration. The occurrence of certain events (known or unknown—foreseeable or unforeseeable) shall not constitute “changed circumstances,” and the Court shall have no jurisdiction to alter the intentions of [Carpenter] and [Thagard] in this regard and thus, the Court shall not alter, modify and/or terminate the Spousal Support agreed to and awarded herein.” (Emphasis and underscore in original.)
Paragraph 3D of the stipulated judgment provides, “as security for the payment of spousal support,” Thagard will “purchase, maintain and pay the premiums for a policy of life insurance” on his life in the amount of $1.5 million, listing Carpenter as the irrevocable beneficiary of the policy.
2. Thagard’s Motion To Confirm His Spousal Support Obligation Had Terminated by Operation of Law Upon Carpenter’s Remarriage
On August 12, 2006 Carpenter informed Thagard she had remarried. On November 3, 2006 Thagard filed a motion to confirm his obligation to pay spousal support had terminated by operation of law following Carpenter’s remarriage. Carpenter opposed the motion, arguing the stipulated judgment provided spousal support could not be terminated for any reason other than by her or Thagard’s death or their written agreement.
3. The Court’s Ruling Terminating Support
The trial court found the language in the stipulated judgment ambiguous as to the parties’ intent to waive section 4337’s provision that support terminate by operation of law upon the supported spouse’s remarriage. On the one hand, the court observed, the stipulated judgment specified the support obligation would terminate upon certain contingencies, including the death of the parties or “order of the court,” and did not expressly include or exclude remarriage. On the other hand, the stipulated judgment provided the court had no jurisdiction to terminate the spousal support “agreed to and awarded herein.”
Over Thagard’s objection, the court held an evidentiary hearing to determine whether extrinsic evidence clarified the parties’ intent concerning the effect of Carpenter’s remarriage on spousal support. At the hearing Carpenter testified she had retained an attorney to prepare a stipulated judgment that incorporated the terms of their agreement, including Thagard’s promise to her that he would “support her for life.” According to Carpenter, Thagard had told her he did not want her to be in the same position as his mother, who was unable to remarry because she would lose her spousal support. Carpenter’s former attorney testified he had told Carpenter and Thagard during one of their meetings that support would continue even if Carpenter remarried. However, at his deposition the attorney had testified he had no recollection of discussing the impact of remarriage on spousal support other than to tell the parties spousal support would continue for Carpenter’s “life.” For his part, Thagard was adamant the attorney had never told him his support obligation would continue if Carpenter remarried. His own understanding was that he was obligated to support Carpenter for the rest of her life, unless she remarried.
The attorney testified at the hearing after Carpenter and Thagard had agreed to waive any attorney-client privilege either may have had protecting conversations with the attorney.
The trial court concluded Carpenter had not shown by clear and convincing evidence she and Thagard had expressly agreed to waive section 4337’s provision for termination of support on remarriage. Carpenter filed a timely notice of appeal.
DISCUSSION
1. Section 4337 Requires a Specific and Express Waiver
In In re Marriage of Thornton (2002) 95 Cal.App.4th 251, 254 (Thornton) this court held, absent a clear statement in writing by the parties that spousal support does not terminate upon the remarriage of the supported spouse, the support obligation terminates as a matter of law. “This section means what it says: A written agreement to waive its provisions must be specific and express.” (Id. at p. 254.) Silence will not do, nor will language stating the support obligation is “‘non-modifiable.’” (Ibid.; In re Marriage of Glasser (1986) 181 Cal.App.3d 149, 151 (Glasser).) Although “[n]o particular words are required” (Thornton, at p. 254), the intent to override the termination of spousal support by operation of law must be clear. In other words, “If the parties wish to make a written agreement to waive the remarriage provision of section 4337, they must at a minimum expressly state that the supported spouse’s remarriage will not terminate spousal support.” (Id. at p. 257.)
“‘Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally.’” (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518.) Thus, except to the extent there are disputed facts regarding extrinsic evidence, interpretation of the stipulated judgment in this case is a question of law we review de novo. (See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866.) Similarly, interpretation of section 4337, if necessary, and its application to the facts of this case are questions of law determined de novo. (See Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916; Thornton, supra, 95 Cal.App.4th at p. 254.) The trial court’s factual findings resolving disputed extrinsic evidence, however, are reviewed for substantial evidence. (See In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.)
2. The Language in the Stipulated Judgment Does Not Constitute a Waiver of Section 4337
Does the stipulated judgment in this case specifically and expressly waive the remarriage termination provision of section 4337? It does not.
To be sure, the stipulated judgment provides that spousal support will continue “until such time as [Carpenter] dies, [Thagard] dies, Stipulation of the parties in writing or further order of Court, whichever first occurs.” However, it does not expressly state spousal support will continue despite Carpenter’s remarriage, nor does it refer to the provisions of section 4337. In fact, although other potential terminating events are identified—the deaths of Carpenter or Thagard—remarriage is not mentioned at all. The stipulated judgment also fails to expressly state that spousal support will not terminate “for any reason whatsoever,” or “for any reason not specifically enumerated in this agreement,” which, despite omitting the word remarriage, would be a more unambiguous indicator of the parties’ intent to preserve the support obligation in the event of Carpenter’s remarriage. (See Thornton, supra, 95 Cal.App.4th at p. 254 [“‘[i]f the parties intend that support is to be “non-terminable for any reason whatsoever,” they must say so in their agreement’”].)
Carpenter insists other language in paragraph 3A of the stipulated judgment reflects the parties’ mutual intent that spousal support continue even if she remarries: “This spousal support order shall be non-modifiable and shall not be terminated by this court, both as to amount and/or duration. The occurrence of certain events (known or unknown—foreseeable or unforeseeable) shall not constitute ‘changed circumstances,’ and the Court shall have no jurisdiction to alter the intentions [of the parties] in this regard and thus, the Court shall not alter, modify and/or terminate the Spousal Support agreed to and awarded herein.” (Original initial capitalization and emphasis omitted.)
According to Carpenter, language that spousal support “shall not be terminated by this court” is more than just a statement it is non-modifiable. (Cf. Glasser, supra, 181 Cal.App.3d at p. 151 [language stating that “support is non-modifiable” insufficient to effect waiver of § 4337]; Thornton, supra, 95 Cal.App.4th at p. 257 [agreement did not say “spousal support is ‘non-terminable’ as opposed to ‘non-modifiable’”].) It is a clear expression of intent that the support obligation will continue despite changing circumstances, including her remarriage.
There is no question the stipulated judgment addresses more than modification of spousal support: It also identifies circumstances when support can be terminated (upon the death of Carpenter or Thagard, stipulation or “further order of the court”). In a different context the negative pregnant of listing certain terminating events may be the exclusion of other circumstances as triggering termination of a legal obligation, but the omission of any reference in the stipulated judgment to remarriage or section 4337 fails to satisfy the minimum requirements for waiver of the remarriage termination provision as articulated in Thornton, supra, 95 Cal.App.4th 251—a decision that was filed more than three years before preparation of the stipulated judgment in this case. (See id. at p. 257 fn. 5 [“[b]y expressly stating the parties may waive [§ 4337’s] provisions by ‘written agreement,’ the Legislature necessarily precluded” the implied forms of waiver urged in this case].)
As an alternative to her reliance solely on the language in the stipulated judgment itself, Carpenter argues, at the very least, the parties’ agreement is ambiguous and consideration of extrinsic evidence is appropriate to determine their intent. Review of extrinsic evidence is appropriate if the language in the agreement is reasonably susceptible to the interpretation Carpenter advances, namely, that spousal support continues notwithstanding her remarriage. (Glasser, supra, 181 Cal.App.3d at p. 153 [no extrinsic evidence of intent is permissible “without some language in the agreement reasonably subject to interpretation as a declaration of an intent that support continue beyond wife’s remarriage”]; see In re Marriage of Cesnalis (2003) 106 Cal.App.4th 1267, 1274 (Cesnalis) [extrinsic evidence properly considered when language of agreement is reasonably susceptible to interpretation that spousal support continues for three years even if supported spouse remarries during that time].)
In Cesnalis, supra, 106 Cal.App.4th at page 1272, the court misconstrued our statement in Thornton, supra, 95 Cal.App.4th 251 that parties wishing to make a written agreement to waive the remarriage provision of section 4337 must “at a minimum expressly state that the supported spouse’s remarriage will not terminate spousal support” (see Thornton, at p. 257) as a suggestion that examination of extrinsic evidence is never permitted in this context. The Cesnalis court stated, “We believe this statement goes beyond the requirements of section 4337. Taken literally, this statement would mean that particular words are required to waive section 4337, and that extrinsic evidence has no relevance in resolving whether a written marriage agreement has waived the section 4337 remarriage provision.” (Cesnalis, at p. 1275.)
We have some doubt, for the reasons discussed, whether the language in the agreement is susceptible to the interpretation Carpenter proposes, namely, that the parties intended to override section 4337’s automatic termination of spousal support upon the supported spouse’s remarriage. Nonetheless, as the trial court found, consideration of the extrinsic evidence in this case does not change the result. Although Carpenter presented evidence the parties intended to waive section 4337’s remarriage termination provision, Thagard testified to the contrary. The trial court found the conflicting extrinsic evidence insufficient to satisfy Carpenter’s heightened burden of showing, by clear and convincing evidence, the parties had agreed to override section 4337’s provision that spousal support terminates upon the supported spouse’s remarriage. (See Thornton, supra, 95 Cal.App.4th at p. 257 [spouse claiming waiver of § 4337 has burden of proving, “by clear and convincing evidence, a written agreement to waive the supporting spouse’s statutory right to cease spousal support upon remarriage of the supported spouse”].) We agree the evidence proffered in this case falls short of resolving any ambiguity in Carpenter’s favor.
Generally, because the stipulation was drafted by Carpenter’s attorney, any ambiguity should be most strictly construed against Carpenter. (See Civ. Code, § 1654 [“language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist”].)
Carpenter argues, for the first time on appeal, the proper standard of proof to overcome section 4337’s termination of spousal support by operation of law in the absence of an agreement to the contrary is preponderance of the evidence, not clear and convincing evidence. As Carpenter acknowledges, we resolved this question in Thornton, supra, 95 Cal.App.4th at page 257: Because the supporting spouse’s obligation to pay spousal support terminates by operation of law upon the supported spouse’s remarriage, the party seeking to overcome that statutory right has the burden of proving an explicit, contrary agreement by clear and convincing evidence. (See In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1065 [party claiming waiver of statutory rights must prove it by clear and convincing evidence].)
Carpenter principally relies on Cesnalis, supra, 106 Cal.App.4th 1267, to argue the stipulated judgment satisfied the requirements of section 4337. Cesnalis, however, is inapposite. The stipulated judgment in Cesnalis provided spousal support would continue “for three years... beginning November 1, 2000 and continuing until either party’s death, or October 30, 2003, whichever occurs first, at which point spousal support will terminate absolutely.” (Id. at p. 1273.) The agreement did not specifically mention remarriage. The wife argued the agreement provided for a single terminating event—the death of one of the parties—and, absent the death of one of them, spousal support could not be terminated. The husband argued the failure to use the word remarriage or mention section 4337 was fatal to the wife’s claim.
The trial court found the agreement, at the very least, ambiguous on the question whether support was to survive the supported spouse’s remarriage. In light of the ambiguity, the court considered extrinsic evidence, which revealed that a prior draft of the marital dissolution agreement, prepared by husband’s counsel, had listed remarriage as a terminating event. The wife had refused to sign that draft until husband removed the language concerning remarriage, telling husband she would only agree if spousal support was to continue for three years regardless of her remarriage. The husband agreed to remove the remarriage language to meet this objection and to obtain the wife’s consent. The trial court found the extrinsic evidence was clear and convincing proof of the parties’ mutual agreement that, absent the death of either one of them, support would continue for three years, even in the event of the wife’s remarriage. (Cesnalis, supra, 106 Cal.App.4th at p. 1275.)
Contrary to Carpenter’s contention, the stipulated judgment in Cesnalis, which provided for spousal support for a limited three-year period but for the death of one of the parties, was far more certain than the language in the instant stipulated judgment. Moreover, in stark contrast to the compelling extrinsic evidence in Cesnalis, the disputed extrinsic evidence in the instant matter (Carpenter’s testimony and the drafting lawyer’s trial testimony versus Thagard’s testimony and the drafting lawyer’s deposition testimony) fails to constitute the requisite “clear and convincing evidence” necessary to show an agreement to waive section 4337’s remarriage termination provision.
As this case illustrates, broad or ambiguous language referring to termination of spousal support will rarely be a clear expression of intent sufficient to override section 4337’s termination of support by operation of law; and reliance on extrinsic evidence, appropriate only in limited instances, will seldom overcome the lack of specific language in the parties’ agreement dealing with the issue. What is a party who desires to preserve spousal support in the event of the supported spouse’s remarriage to do? We answered this question in Thornton, supra, 95 Cal.App.4th at page 257: Say so in the agreement.
DISPOSITION
The order is affirmed. Thagard is to recover his costs on appeal.
We concur: ZELON, J., JACKSON, J.
As we explained in Thornton, and our colleagues in the Third District reiterated in Cesnalis, no particular words are required to satisfy section 4337, provided the intent that the spousal support obligation survives the supported spouse’s remarriage is clearly stated in the agreement. (Thornton, supra, 95 Cal.App.4th at p. 254.) If there is some language to that effect in the parties’ agreement, but there is also language in the agreement reasonably susceptible to a contrary interpretation, use of extrinsic evidence is appropriate to determine the parties’ intent. (See Glasser, supra, 181 Cal.App.3d at p. 153.)