Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Thomas C. Hendrix, Judge. Super. Ct. No. D360936.
McINTYRE, Acting P. J.
Mark D. Finch appeals from a postjudgment order in this dissolution action between him and his former wife, Laura J. Finch. He contends the trial court erred when it enforced orders against him because Laura had executed acknowledgments of satisfaction of judgment and never moved to set the acknowledgments aside. Laura seeks sanctions against Mark for pursuing a frivolous appeal. We affirm the order, but deny the request for sanctions as procedurally improper.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, as part of the divorce proceedings, the trial court ordered Mark to pay Laura: (1) $5,500 (representing an equalizing payment for the value of community property he had retained) and (2) $2,469 (for Mark's failure to return Laura's personal property; together the 1994 Orders). Thereafter, Laura recorded two abstracts of judgment. In 1995, Laura provided Mark with three acknowledgments of satisfaction of judgment in reliance on his representations that he was refinancing his property and would pay the 1994 Orders during the escrow period. She recorded one acknowledgment, but did not record the other two. The following year, a court appointed special master concluded that Mark had made it impossible to satisfy the abstract of judgment by amending escrow instructions to pay off three creditors, leaving only $200 in escrow to pay Laura. In 2003, Laura's counsel again signed an acknowledgment of satisfaction of judgment based on Mark's representation that he would refinance his property to pay the amounts owed, but never recorded this document.
In October 2004, Laura moved for an order to show cause to set arrearages, claiming that Mark had not paid the 1994 Orders and owed child support. Mark denied the arrearages and claimed that the acknowledgments of full satisfaction of judgment proved that he had paid the orders. Thereafter, the parties tried to resolve the matter, but were unsuccessful, and Laura then filed a second order to show cause seeking attorney fees and sanctions. Laura claimed that she had exchanged settlement proposals with Mark, who had accepted a settlement proposal, but later refused to sign the proposed stipulation and order. In his responsive declaration, Mark again argued that he had paid the sums owed and that Laura had filed acknowledgments of satisfaction of the judgments. After hearing oral argument, the trial court made findings and issued an order requiring Mark to pay sanctions, child support and the sums set forth in the 1994 Orders, with interest. Mark appeals from this order.
After Mark perfected his appeal, the trial court issued a "corrected" order changing the child support arrearages after receiving evidence and hearing oral argument. The corrected order is void because the timely filing of the notice of appeal deprived the trial court of jurisdiction. (Code Civ. Proc., § 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-198.) (All undesignated statutory references are to the Code of Civil Procedure.) The trial court can address any mistake in the order at issue in this appeal on remand.
DISCUSSION
I. Appeal
Mark asserts that a notice of acknowledgment of satisfaction of judgment can only be set aside through an appropriate motion. Because Laura failed to file such a motion, he claims that the acknowledgments remain and this matter should be remanded to the trial court with directions to credit him the sums listed in the acknowledgments. Mark notes that the question presented is subject to de novo review because it involves "the procedure and jurisdiction of the court to ignore [the acknowledgments] when there has been no motion to set [the acknowledgments] aside." Mark, however, does not dispute the trial court's findings that he in fact did not pay the amounts owed under the 1994 Orders.
As a threshold matter, we note that Mark did not raise this alleged procedural defect below and it has been waived on appeal. (Doers v. Golden Gate Bridge, Highway & Transp. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) We nevertheless exercise our discretion to consider his contention. (Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 17, overruled on other grounds in Edelstein v. City & County of San Francisco (2002) 29 Cal.4th 164, 183.) We also note that Laura's responsive brief violates California Rules of Court, rule 8.204(a)(1)(C) by failing to cite the record on appeal in its statement of facts. Pursuant to California Rules of Court, rule 8.204(e)(2)(C) we disregard the violation.
Here, Laura sought enforcement of the 1994 Orders and Mark raised the acknowledgments of satisfaction of judgment as a defense. Significantly, Mark does not dispute the trial court's factual findings regarding the sums owed Laura, essentially admitting that the 1994 Orders remained unpaid. Despite this concession, Mark seeks a credit for the amounts set forth in the acknowledgments of satisfaction of judgment. Mark, however, has not paid the outstanding sums and he is not entitled to a credit for the amounts listed in the acknowledgments. (See Pierson v. Honda (1987) 194 Cal.App.3d 1411, 1414, fn. 4 [court may order entry of satisfaction of a judgment under section 724.050 subdivision (d) only if it determines that the judgment has been satisfied].)
Recording an abstract of a money judgment with the county recorder creates a judgment lien on real property (§ 697.310, subd. (a)) and recording an acknowledgment of satisfaction of judgment releases the real property judgment lien (§ 697.400, subd. (a)). If a judgment creditor erroneously files an acknowledgment of satisfaction of judgment, the judgment creditor may ask the trial court to set the acknowledgment aside and to reinstate the judgment lien. (Clark v. Johnston (1920) 49 Cal.App. 315, 318.) Mark contends that Laura failed to ask the trial court to set aside the recorded acknowledgment and that she was required to do so before seeking to enforce the 1994 Orders.
While it is true that Laura never sought to set aside the recorded acknowledgment, this fact would only be relevant if she were seeking to reinstate her earlier judgment lien on Mark's property and retain priority over other creditors. (See Clark v. Johnston, supra, 49 Cal.App. at p. 319.) However, Laura is not seeking to reinstate her judgment lien; rather, she seeks a writ of execution ordering Mark to pay the prior orders with interest. In any event, there is no authority suggesting a trial court cannot sue sponte set aside recorded acknowledgments based on fraud or failure of consideration before enforcing underlying orders and we may assume the trial court did so here. (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971 [we indulge all presumptions to support the orders on matters as to which the record is silent].) Accordingly, we reject Mark's contention that the trial court improperly enforced the orders against him.
II. Sanctions
In her responsive brief Laura requests that this court impose sanctions for pursuing a frivolous appeal. (§ 907.) This request is procedurally improper because a party seeking sanctions on appeal must file a formal separate motion for sanctions. (Cal. Rules of Court, rule 8.276(e)(2); Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402 [under former Cal. Rules of Court, rule 26(e)].) Because of this procedural defect we are compelled to deny the request.
DISPOSITION
The order is affirmed. Respondent is entitled to her costs on appeal.
WE CONCUR: AARON, J., IRION, J.