Opinion
B181765
8-5-2008
In re Marriage of DARLENE and EDWARD NOBLE. DARLENE NOBLE, Respondent, v. EDWARD NOBLE, Appellant. DARLENE NOBLE, Plaintiff and Respondent, v. EDWARD NOBLE, Defendant and Appellant.
Law Office of Noelle M. Halaby and Noelle M. Halaby; Charles M. Damus & Associates and Charles M. Damus for Appellant and for Defendant and Appellant. Olsen and Olsen, Casey A. Olsen and Peter N. Scolney for Respondent and for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Edward Noble appeals from a judgment entered following a trial on a petition for dissolution and consolidated civil action filed by plaintiff and respondent Darlene Noble. Appellant contends the trial court abused its discretion in making the permanent spousal support award, erred in construing too broadly a stipulation submitted by appellant concerning Darlenes interest in a business and erred in trying the dissolution and civil actions together. The record reveals that the trial court carefully considered the factors outlined in Family Code section 4320 in making the support award, properly construed the unambiguous language of appellants stipulation and properly exercised its discretion in granting appellants request to consolidate the two actions. Accordingly, we affirm the judgment.
"As is customary in family law cases, we refer to the parties by their first names for purposes of clarity and not out of disrespect." (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828, fn. 2.)
Unless otherwise indicated, all further statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Darlene met in 1970 while they were students at the Canadian Memorial Chiropractic College and began living together in 1973. In the mid-1970s, appellant began discussing with Darlene and her parents starting a business to design a percussive massager and market it to chiropractors. According to Darlene, she and appellant agreed to work on the project together and share equally in the business as partners. In 1978, appellant formed a corporation to manufacture and market the massager. Between 1973 and 1985, Darlene and her parents provided financial support for appellant and Darlenes household. Appellant disputed the level of Darlenes financial involvement, characterizing it only as her guaranteeing an initial loan to the company. Thereafter, in 1985 appellant formed Wellness Innovations Corporation (Wellness), a Canadian corporation, with two other capital partners. Appellant considered himself a one-half owner of Wellness.
Appellant and Darlene married in August 1985. Darlene had worked as a teacher up until that point, but stopped in 1985 because Wellness was generating sufficient income to support appellant and her. In the mid to late 1990s, Wellness launched a handheld massager which was very successful. In 1998, the companys best year, Wellness grossed $9.2 million. Beginning in 1999, however, sales began to decline, which appellant attributed to the presence of competing products on the market. At the time of trial in 2003, Wellness was in receivership.
Darlene filed a petition for dissolution in California in December 1999. One month later, she filed a civil action against appellant pursuant to Marvin v. Marvin (1976) 18 Cal.3d 660 (Marvin), seeking damages, declaratory relief and an accounting for causes of action alleging fraud, promissory estoppel and breach of oral contract concerning the time period before the parties married. Appellant denied that Darlene had any ownership interest in Wellness. Also in December 1999, appellant petitioned for dissolution in the state of Arizona, and the parties received a decree of dissolution from the Arizona Superior Court in December 2000. The parties stipulated that the issue of status would be determined in Arizona and all other issues would be adjudicated in California. As a result, the decree provided that the Arizona court lacked jurisdiction to provide for spousal support, divide community property, confirm separate property or award attorney fees, and the court directed those issues to be resolved in the state and federal actions then pending in California.
Trial was originally set to commence in December 2000, but was delayed for over two years, primarily due to procedural aspects of the Marvin action, including its removal to federal court, remand to state court and consolidation with the dissolution action. Darlene also received permission from the trial court to amend the Marvin complaint in June 2002, seeking a declaration that she was an equal partner with appellant and shared equal ownership of Wellness pursuant to a 1976 oral agreement between them. At that point, the Marvin action was transferred to a civil court for a jury trial and the dissolution action was stayed.
In March 2003, on the eve of the jury trial in the Marvin action, appellant stipulated that Darlene was an equal owner with him of his interest in Wellness and had a right to share equally in the companys profits and revenues. He requested that the Marvin action and the dissolution action be consolidated for trial on the ground that nothing except the issue of damages remained in the Marvin action by reason of his stipulation, and damages could be determined by the court in connection with the dissolution action. On the basis of the stipulation, the Marvin action was transferred and the cases were consolidated.
Trial commenced in June 2003 and ended in December 2003, spanning eight days in June, August, November and December. Both appellant and Darlene testified at length regarding income and assets acquired and expenses incurred prior to the marriage, during the marriage and following separation. Expert accountants and appraisers likewise testified about those matters as well as asset transfers, asset valuation, reasonable compensation and the marital standard of living. Expert accountant Ron Anfuso prepared an analysis of the spousal support required to meet Darlenes marital standard of living prior to separation and testified that his analysis yielded a gross support figure of $41,818 per month.
The trial court issued a statement of decision on May 5, 2004. The court first addressed the effect of appellants March 2003 stipulation. During trial, the parties disputed the scope of the stipulation—Darlene construing it as appellants conceding her 50 percent interest in Wellness and appellants construing it as operating only prospectively, so as not to entitle Darlene to any interest in Wellness prior to the date of the stipulation. Quoting a portion of appellants stipulation, the trial court ruled: "[Appellants] position is clearly contrary to the plain language of his stipulation, which states, in pertinent part, `If the Marvin Action is joined and consolidated with the dissolution action so there is only one trial and all the outstanding issues are determined in the dissolution action, I am willing to concede that [Darlene] is an equal owner with me of my interest in Wellness Innovations and all related, predecessor and successor entities, and that [Darlene] has a right to share equally with me in all revenues, profits and earnings of the company. The only outstanding issue remaining in the Marvin Action would then be the amount of [Darlenes ] damages, if any, to which she is entitled. The damages could and should be determined in the dissolution action to avoid the duplicative accounting that would be presented in both cases. (Trans. Proceedings, March 12, 2003 at 5, ll. 12-26 (emphasis added).)" The trial court construed the stipulation as appellants conceding Darlenes allegations pertaining to ownership and leaving open only the question of damages. It ruled that the stipulation failed to preserve any right to litigate whether the parties reached an agreement regarding the business in 1976 or to contest the date on which Darlenes right to revenues, profits and earnings commenced.
Addressing the issue of damages in the Marvin action, the trial court directed appellant to convey to Darlene one-half of his ownership interest in Wellness, in accordance with his stipulation. With respect to compensatory damages, the trial court determined that the evidence showed the revenues and profits of Wellness from the date of separation (December 14, 1999) through 2003 were $3,636,000 and found that "[o]f this amount, one-half should have been paid to [Darlene] as the owner of one-half of [appellants] interest." Darlene was therefore entitled to receive $1,818,000 as her one-half interest, plus $415,631 in interest pursuant to Civil Code sections 3287 and 3288. It further ruled, however, that Darlene failed to establish her breach of fiduciary duty claims, as there was insufficient evidence that appellant destroyed the viability of Wellness or engaged in improper self-dealing. It denied her request for damages in the form of future lost profits due to appellants mismanagement and for punitive damages.
Turning to the dissolution action, the trial court issued detailed rulings concerning the division of community property, encompassing both real property and personal property comprised of furniture and furnishings, jewelry, vehicles, intellectual property rights, bank accounts and frequent flyer miles. The court then addressed the issue of temporary spousal supports arrearages. It noted that temporary spousal support had been ordered in the amount of $28,000 per month between February 2000 and October 2002, and $17,000 per month commencing in November 2002, and acknowledged that the prior orders failed to account for Darlenes interest in Wellness and her right to income from that business. Nonetheless, the court determined it lacked jurisdiction to adjust either order because, even though Darlene had filed her Marvin action before the first order was made, "no reservation of jurisdiction was included in that order for a recalculation of support in the event [Darlene] was found to be entitled to half the business interest and the accompanying income nor was any such reservation included in the second support order." The court also addressed the characterization of an $830,000 payment to Darlene, an issue which an August 2001 support order had reserved for trial. The trial court ruled that the amount would be deemed a distribution of community property to the extent that Darlene was owed $571,064.50 from community bank accounts and the balance would be deemed a partial payment of business income from Wellness. Because the payment was not characterized as spousal support, appellants outstanding $532,000 spousal support obligation for the period between February 2000 and August 2001 remained unpaid and owing.
Expressly considering the factors set forth in section 4320, the trial court lastly addressed the issue of permanent spousal support. Balancing those factors, the court concluded that while Darlene would need support in the amount of $25,000 per month to satisfy the marital standard of living, an award of $15,000 per month was required by reason of appellants reduced income. The spousal support order commenced retroactively on November 15, 2003.
Thereafter, the trial court ruled on the parties requests for attorney fees, determining that, with limited exceptions, each party should bear his or her own attorney fees. The trial court entered judgment in December 2004. Appellant filed his notice of appeal in March 2005.
Following his appeal, appellant filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court, District of Nevada, in October 2005 and received an order of discharge pursuant to Title 11 United States Code section 727 in August 2007. During the bankruptcy proceedings, the instant appeal was automatically stayed pursuant to Title 11 United States Code section 362. In November 2007, we denied appellants application for a further stay pending resolution of Darlenes adversary action seeking a determination that the debts due to her are non-dischargeable.
DISCUSSION
Appellants arguments can be separated into three categories: challenges to the spousal support award; challenges to the trial courts construction of his stipulation; and challenges to the propriety of trying the Marvin action and the dissolution action together. We find no merit to any challenge.
The statement of facts in appellants opening brief contained no citations to the record and, though we decline to do so, we could reject appellants factually-based arguments on this basis alone. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 ["Statements of fact that are not supported by references to the record are disregarded by the reviewing court"]; Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 [same].)
I. The Trial Court Properly Exercised Its Discretion in Awarding Permanent Spousal Support.
Spousal support is governed by statute. (§§ 4300-4360.) Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the trial court determines is just and reasonable, based upon the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320. (§ 4330, subd. (a).) The circumstances listed in section 4320 include: "(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported partys present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting partys earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] . . . [¶] (h) The age and health of the parties. [¶] . . . [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. [¶] . . . [¶] (n) Any other factors the court determines are just and equitable."
We review permanent spousal support orders for an abuse of discretion. (In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1106; In re Marriage of Laube (1988) 204 Cal.App.3d 1222, 1225.) "In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the `court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities. [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
Here, in its statement of decision the trial court meticulously addressed the relevant factors outlined in section 4320. It first considered the earning capacity of each party as directed by section 4320, subdivision (a). It observed that the earning capacity of each party was quite different; appellant—who was 15 years younger than Darlene—appeared able to earn over $1 million per year, while Darlene was "limited by her age, experience and health." Darlene was 66 years old; she had worked as a teacher prior to marriage and was receiving a small pension; and she suffered from health problems related to cancer which rendered her unable to work full time. Addressing section 4320, subdivision (b), the court noted that Darlene had contributed to appellants attaining training in the chiropractic field and in the development of the business that ultimately became Wellness.
Turning to appellants ability to pay, section 4320, subdivision (c), the trial court recognized that appellants ability had been reduced from earlier in the case, when his income exceeded $100,000 per month. The evidence showed that in May 2003, appellants income was $34,000 per month and that he received an additional $400,000 distribution in 2003. Also affecting appellants ability to pay was evidence that some of the Wellness entities were in bankruptcy, evidence that the litigation had an adverse financial impact on him and the trial courts earlier ruling concerning Darlenes interest in Wellness. The court summarized: "It does appear to the Court that [appellant] has a significantly reduced ability to pay support by reason not only of the problems experienced by the Wellness Entities, but also because his ownership interest in them has been reduced by half by reason of the determination that [Darlene] owns one-half of his interests."
Addressing section 4320, subdivision (d), the trial court observed that the marital standard of living had been high, as the evidence showed the parties lived in a well-appointed house in Los Angeles, possessed expensive jewelry and watches, traveled extensively and had savings of $1.5 million. According to a prior support order, the amount necessary for Darlene to maintain that standard was $28,000 per month, later reduced to $17,000 per month to reflect both appellants reduced income and Darlenes reduced need. With respect to the assets and obligations of each party, the trial court recognized that each party now had a one-half interest in Wellness and further recognized that Darlene had the potential to receive sums in the future from an inheritance, spousal support payments from appellant then in arrears and damages from the Marvin action. (See § 4320, subd. (e).) But the court deemed these latter sums speculative and assumed no value for them in calculating spousal support.
The court further noted that the duration of the marriage was long, as the parties had been married for over 14 years. (§ 4320, subd. (f).) Darlene was 15 years older than appellant and her cancer was the only health problem identified by either party. (§ 4320, subd. (h).) There was no evidence regarding specific tax consequences to either party. (§ 4320, subd. (j).) Finally, the trial court determined that the balance of hardships favored Darlene. (§ 4320, subd. (k).) Because she had little earning capacity and may be required to find some type of work in order to qualify to receive Social Security, the court found no realistic possibility that she would become self-supporting within a reasonable time period. (§ 4320, subd. (l).) On the other hand, the court balanced appellants ability to earn income as a result of his chiropractic training and entrepreneurial experience against his increased obligations stemming from his remarriage and the damage award in the instant action.
On the basis of the foregoing analysis, the trial court found that $25,000 per month was required to meet Darlenes needs as established during the marriage, but awarded $15,000 per month in view of appellants reduced income. It also permitted appellant to seek modification of the award in the event that Darlene remarried, recovered a sufficient amount from Wellness so as to enable her to generate income from that amount or received regular income distributions from Wellness.
The trial courts detailed findings demonstrated that the court properly exercised its discretion in making a permanent spousal support award of $15,000 per month. We reject appellants first argument that the trial court abused its discretion by awarding spousal support in excess of appellants ability to pay. He contends the evidence showed that his gross monthly salary as of May 2003 was only $13,333. But there was also evidence which showed that appellants income in 2002 was $578,768. The trial court also relied on appellants May 2003 income and expense declaration showing a gross monthly income of $34,000. It further observed that in 2003 Wellness had produced an additional $400,000 distribution to appellant. It expressly found "not credible" appellants testimony that certain Wellness distributions were merely loans to appellant. It is well settled that "in reviewing a judgment based upon a statement of decision following a bench trial, `any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision" and that appellate courts "may not reweigh the evidence and are bound by the trial courts credibility determinations." (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.)
We likewise reject appellants related argument that the trial court improperly based its award on appellants earning capacity rather than his actual earnings. As observed in In re Marriage of Simpson (1992) 4 Cal.4th 225, 232, "California courts have approved support awards based upon the earning capacity, instead of the actual income, of the supporting spouse in cases where `"it appears from the record that there is a deliberate attempt on the part of the [spouse] to avoid his [or her] financial family responsibilities . . . ." [Citations.]" Appellant contends that any reference to earning capacity was unwarranted because there was no evidence he had avoided his family financial responsibilities. The record belies appellants contention, as he owed $532,000 in past-due temporary spousal support payments at the time the statement of decision was rendered. But even without this arrearage, the trial court did not premise the award solely on earning capacity. Rather, it properly exercised its discretion in considering appellants earning capacity in the context of section 4320, subdivision (a), emphasizing the disparity in appellants and Darlenes earning capacities given their respective ages, work experience and health. (See, e.g., In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76 ["a supporting spouses further obligation to support, and the level of that obligation, is predicated upon the enumerated statutory criteria including reasonable earning capacity under the circumstances regardless whether there is any evidence of deliberate avoidance of support obligation"].)
Appellants next argument that the trial court failed to consider that Wellness was in receivership is similarly belied by the record. The trial court reduced its intended spousal support award by $10,000 per month by reason of several factors, including its acknowledgement that "at least some of the Wellness Entities are involved in bankruptcy proceedings," resulting in a reduced ability to pay on the part of appellant.
Appellants final challenge to the spousal support award is not only meritless but also internally inconsistent with the foregoing argument. He contends that the trial court "double-dipped" by awarding Darlene both one-half of Wellness and permanent spousal support, without offsetting the support award by her interest in Wellness. But according to appellants own assertions, any assets from Wellness were illusory. In other words, appellant contends on the one hand that Wellnesss dire financial condition rendered him unable to meet his spousal support obligations; yet on the other hand he contends that Darlene received a windfall in the form of one-half of Wellnesss assets coupled with spousal support. As the trial court recognized, appellant cannot have it both ways. Indeed, the trial court ruled consistently—both for the purpose of assessing appellants ability to pay and evaluating Darlenes assets—that any assets and future income from Wellness were speculative. As noted above, the trial court found that appellants ability to pay had been reduced by problems experienced by Wellness. Correspondingly, it determined that unless and until Darlene realized any amounts from Wellness, "they are speculative, and spousal support should be set assuming no value for them." Allowing for the possibility that Wellnesss financial situation could change, the trial court expressly permitted appellant to seek modification of the spousal support order in the event that "(ii) Petitioner [Darlene] recovers a sufficient amount by way of damages or an equalizing payment from Petitioner to allow her to realize income from the investment of such amount, or (iii) Petitioner begins to receive regular distributions from any of the Wellness Entities."
These circumstances distinguish this case from Greco v. Greco (Conn.App. 2004) 847 A.2d 1017, 1021-1022, where the appellate court reversed an order that both transferred one half of the control of a closely held corporation to the wife, effectively giving her control over the husbands employment and only source of income, and at the same time awarded the wife spousal support in an amount that exceeded the husbands net income. According to the court, "taking the corporation into account in both the property division and in the award of alimony and other payments is, in essence, `double dipping and inequitable because the corporation provides the only significant stream of income by which the defendant can meet his alimony and other court ordered payment obligations." (Id. at p. 1022.) Here, in contrast, there was no double-dipping because Wellness provided neither assets for Darlene nor a source of income for appellant. The trial court premised appellants ability to satisfy his spousal support obligations on his ability to earn income in the future by reason of his "chiropractic training and entrepreneurial experience and expertise," not because of his interest in or salary from Wellness.
The other case on which appellant relies, Grunfeld v. Grunfeld (N.Y. 2000) 731 N.E.2d 142 has no bearing here. There, the court cautioned against duplication in the form of a property distribution dividing a professional license and a spousal support award premised on earnings derived from the license, as the license itself "is totally indistinguishable and has no existence separate from the projected professional earnings." (Id. at p. 146.) Again, the trial court premised its spousal support award not only on potential income derived from Wellness, but on a reasoned evaluation of multiple applicable statutory factors.
Once the trial court has considered the mandatory guidelines of section 4320, it has broad discretion to determine the amount and duration of spousal support, and we will not reverse an award on appeal absent an abuse of that discretion. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.) "`Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders. [Citation.]" (Ibid.) We see no basis to disturb the trial courts careful evaluation of the section 4320 factors in awarding permanent spousal support in the amount of $15,000 per month.
II. The Trial Court Properly Construed Appellants Stipulation Regarding Darlenes Interest in Wellness.
Appellants next contention is that the trial court erred in construing his stipulation as operating to concede a one-half interest in Wellness to Darlene. We find no error.
By way of background, following Darlenes amendment of her Marvin action in mid-2002, that matter was transferred to a civil court for a jury trial. At the Marvin actions final status conference in March 2003, appellant moved to consolidate that action with the dissolution action. In connection with his motion, appellant offered the following stipulation: "If the Marvin Action is joined and consolidated with the dissolution action so there is only one [1] trial and all the outstanding issues are determined in the dissolution action, I am willing to concede that plaintiff is an equal owner with me of my interest in Wellness Innovations and all related predecessor and successor entities, and that plaintiff has a right to share equally with me in all revenues, profits and earnings of the company. The only outstanding issue remaining in the Marvin action would then be the amount of plaintiffs damages, if any, to which she is entitled. The damages could and should be determined in the dissolution action to avoid the duplicative accounting that would be presented in both cases. I am willing to make the above concession only if the cases are consolidated and joined and there is only one [1] trial. The motivating factor for the concession is that the attorneys and accountant fees in this case are out of control and must be stopped from escalating even further." As a result of appellants stipulation, the Marvin action was transferred and consolidated with the dissolution action. At a March 12, 2003 hearing on the consolidated cases, appellant reiterated his stipulation, and the trial court took a waiver from appellant and Darlene of their right to a jury trial on the Marvin action and requested that the stipulation be put in writing. Appellant filed his stipulation on April 10, 2003.
In his trial brief filed on June 20, 2003, appellant characterized the effect of his stipulation as being limited: "To preserve what little remained of their marital estate following four years of out-of-control litigation, Edward was willing to abandon his separate property claim to the business and to divide it equally with Darlene in this divorce trial. The stipulation does not concede that the allegations in Darlenes `Marvin claims are true. It does not address the pre-stipulation character of the business." At trial, appellants counsel also disputed the scope of the stipulation, contending that it applied only prospectively so that Darlene was not entitled to share in any business profits or income between the date of separation and the stipulation.
In the statement of decision, the trial court stated that construction of the stipulation was a threshold issue in the case. A trial court interprets a stipulation as any other contract. (See City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1, 24.) The stipulation "`"must be first determined from the language of the contract itself. . . . However, where the language of the contract is ambiguous, it is the duty of the court to resolve the ambiguity by taking into account all the facts, circumstances and conditions surrounding the execution of the contract . . . ." [Citation.]" (Ibid.) Because there was no conflicting evidence presented concerning the stipulation, our review of the trial courts determination is de novo. (E.g., Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847; Intershop Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 196.)
The trial court concluded that appellants limited construction of the stipulation was contrary to its plain language. Quoting the stipulation, the trial court determined that "[t]his statement did not preserve any right to litigate whether there was an agreement regarding the business in 1976; it did not preserve the right to contest the date on which the right to revenues, profits and earnings commenced; it conceded the allegations of the Plaintiff/Petitioners complaint as to ownership and left only damages to be decided by this Court. That was confirmed by Respondent through his counsel at the March 12, 2003 hearing at which this Court was advised of the stipulation which had resulted in the consolidation of the two cases and the statement quoted above was made in open court." Accordingly, as a result of the stipulation, the trial court directed appellant to convey to Darlene one-half of his ownership interest in Wellness, and to account to her and pay her one-half of all revenues and profits from Wellness received from the date of separation to the date of judgment.
Our independent review of the stipulation yields the same conclusion. Appellants stipulation did not include the qualifying language that appellant seeks to insert. (See Eastwood Homes, Inc. v. Hudson (1958) 161 Cal.App.2d 532, 541 ["courts are not empowered under the guise of construction to depart from the plain meaning of the contract and insert a term or limitation not found therein"].) To the contrary, the stipulation contained broad language unambiguously providing that Darlene was "equal owner" with appellant of his interest in Wellness and "all related predecessor and successor entities" and further stating that she had the right to "share equally with [appellant] in all revenues, profits and earnings of the company." (Italics added.) "`All is a word of inclusion, not exclusion. In Dalton v. Baldwin (1944) 64 Cal.App.2d 259, 263, the court addressed a statutes use of the word `all as follows: `To us the word "all" means not only "any" right, or "every" right, but the entire inclusiveness of the word excludes no right whatever. [Citations.]" (Church v. Jamison (2006) 143 Cal.App.4th 1568, 1580.) By using the word "all," appellant did not reserve any right to claim that Darlenes one-half interest in Wellness was limited to a particular time period. Indeed, the balance of his stipulation providing that the only issue left for adjudication would be "the amount of damages, if any, to which [Darlene] is entitled" confirmed that appellants stipulation was intended to resolve all disputed issues concerning Darlenes interest in Wellness.
The trial court properly construed appellants stipulation as requiring appellant to convey one-half of his ownership interest in Wellness, together with one-half of the companys revenues, profits and earnings from the date of separation to the date of judgment.
III. The Trial Court Properly Exercised Its Discretion in Granting Appellants Request to Consolidate the Marvin Action and the Dissolution Action.
Code of Civil Procedure section 1048, subdivision (a) provides: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." The decision to consolidate is entirely within the trial courts discretion, and that decision will not be disturbed on appeal unless abuse of discretion is shown. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.)
Without citation to authority or to the record, appellant contends the trial court abused its discretion by consolidating the Marvin action and the dissolution action. We reject appellants contention for the simple reason that it was appellant who requested that the cases be consolidated. "`To permit a change of theory on appeal is to allow one party to deal himself a hole card to be disclosed only if he loses. Even if that device does no more than give him a second chance, it has unbalanced the inherent risk of the litigation and put the other party at a disadvantage. [Citation.]" (Adelson v. Hertz Rent-A-Car (1982) 133 Cal.App.3d 221, 226.) Separately, the doctrine of invited error likewise precludes appellant from complaining about a ruling that he sought. "`It is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)" (California Coastal Com. v. Tahmassebi (1998) 69 Cal.App.4th 255, 260.) The doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting from it in the appellate court. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 402.) Because appellant expressly requested that the actions be consolidated, he is precluded from complaining about the trial courts granting his request.
Appellant finally asserts that, as a matter of policy, the trial court should not have permitted Darlene to maintain a separate Marvin action because the parties later married. Appellant never raised this argument below. A reviewing court generally does not consider claims that could have been but were not presented to the trial court. As summarized in Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316: "It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant." (Accord, Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847 ["parties are not permitted to `"adopt a new and different theory on appeal""].)
We would find no merit to appellants argument even if we were to consider it. In Watkins v. Watkins (1983) 143 Cal.App.3d 651, 653, where a Marvin action and dissolution action were consolidated for trial and the husband moved for judgment on the pleadings on the basis that any implied Marvin agreement became unenforceable as a matter of law when the parties married, the court stated: "We find no suggestion in Marvin v. Marvin, supra, that an implied contract regarding the property of unmarried persons becomes unenforceable as a matter of law upon their marriage. To the contrary, the policy that underlies Marvin compels the conclusion that the premarital implied contract should remain enforceable after marriage." Accordingly, we conclude that the trial court properly exercised its discretion in consolidating the Marvin action and dissolution action for trial.
DISPOSITION
The judgment is affirmed. Darlene is entitled to her costs on appeal.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.