Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Ct. No. 07D005145 Renee Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Richard Gilbert and Associates and Richard C. Gilbert for Appellant.
Minyard Morris, Lonnie K. Seide; Snell & Wilmer, Richard A. Derevan and Andreea V. Micklis for Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Appellant Gail K. Lauria (wife) appeals from a postjudgment order that struck her motion and separate order to show cause, both of which sought adjudication of a purported omitted asset and determination of spousal support arrearages. The order also awarded $4,800 in sanctions to respondent Joseph A. Lauria (husband) under Code of Civil Procedure section 128.7. Finding no error, we affirm the trial court’s ruling in its entirety.
FACTS AND PROCEDURAL BACKGROUND
The parties married in 1978 and separated in 2007. Shortly thereafter, wife filed a petition to dissolve the marriage.
Husband worked for Malcolm Pirnie, Inc. (Malcolm Pirnie), a privately-held company in which he owned 5, 000 shares of stock. At the time of the divorce he served as Malcolm Pirnie’s vice-president.
In June 2008, judgment was entered dissolving the marriage. The judgment incorporated an integrated property settlement executed by the parties and their attorneys that divided their assets. The settlement awarded husband all interest in Malcolm Pirnie’s stock valued by both parties at $1,150,000. Husband agreed to pay wife “$711,500 to equalize the division of community property, ” with a portion of it due shortly after entry of judgment and a reservation of jurisdiction over payment of the balance. The parties also stipulated to the court reserving jurisdiction concerning spousal support. The settlement contained clauses that acknowledged only minimal formal discovery had been conducted, but recognized each party had a fiduciary duty to the other and an obligation to fully disclose assets and liabilities, and that they had exchanged the statutorily required financial declarations. In addition, the parties agreed the court would retain jurisdiction “to value and divide any non-distributed assets and liabilities....”
In March 2009, the parties entered into a settlement covering the unpaid portion of the equalization payment and spousal support. The terms of the settlement were entered as an order by the court and subsequently incorporated into a September 2009 judgment on reserved issues.
On the equalization payment, the parties agreed husband would discharge the balance due plus interest, using “‘distributions’... from... Malcolm Pirnie... and the return from ownership of stock (as opposed to salary, incentive compensation or bonuses).” “Upon receipt of a distribution..., [husband] shall pay all federal and state income taxes” and “within fifteen... days, ” “provide to [wife] 70% of the net distribution, which shall be applied toward the equalization payment.” Also, “[i]n the event [husband] is ‘cashed[] out’ of his interest in Malcolm Pirnie before the equalization payment is satisfied, the then-owing balance shall be paid to [wife].”
The stipulation acknowledged husband received a distribution from Malcolm Pirnie in March 2008, before the court awarded the stock to him. After deducting taxes the distribution totaled $77,000, of which wife was entitled to one-half. Husband later paid that sum to wife.
As for spousal support, the parties reserved the issue of retroactive support for trial. On prospective support, they agreed husband’s “salary of $16,500 per month” and “factors applicable to [wife]” would be used to determine “‘base’ spousal support” with a provision for increasing it to $22,500 per month “based upon the incentive compensation and bonus[es].”
In June 2009, husband learned of a proposed merger between Malcolm Pirnie and a company named Arcadis N.V. (Arcadis). According to a declaration from Craig Eisen, Arcadis’s managing director for mergers and acquisitions, he informally contacted Malcolm Pirnie’s chairman about a potential merger in 2006. Representatives of each firm signed a confidentiality agreement in 2007 “to engage in discussions relating to a possible business relationship or transaction, ” and shortly thereafter, Arcadis presented a merger proposal. Malcolm Pirnie’s board of directors declined to accept it. The firms continued to communicate with each other and, in April 2009, they signed “a Letter of Intent concerning the potential merger.” “On June 23, ... Malcolm Pirnie... provided a Notice of Special Meeting to Shareholder, ” and the companies entered into a merger agreement the next day.
In opposition to wife’s motion and order to show cause, husband filed declarations from Gerard P. Cavaluzzi, Malcolm Pirnie’s general counsel, and himself. Cavaluzzi’s declaration stated husband was not one of the Malcolm Pirnie employees who participated in the merger negotiations and husband was not told of the merger proposal until June 3, 2009. Husband claimed he learned about the merger on June 23. He acknowledged, “as part of this merger..., all the Malcolm Pirnie shares previously awarded to me by the Judgment would be exchanged for restricted shares in Arcadis as well as an additional cash inducement” totaling $1,683,741.
Husband informed wife of the merger and the inducement payment. In August, the parties and their respective counsel executed and filed with the court a stipulation declaring: “[Husband] contends that th[e cash] payment is part of the exchange of assets and, therefore, [wife] is not entitled to any portion of that cash payment. [¶]... However, in order to settle several issues, the parties stipulate that said cash payment is a ‘distribution’ pursuant to the [March 2009] Stipulation and Order” and, after deductions for taxes, husband “shall pay... the balance of the equalization payment owing to [wife].” The court entered the stipulation as an order and husband paid wife the balance due to equalize the division of their assets.
In its September 25 judgment on reserved issues the court determined the amount of husband’s retroactive spousal support obligation, but found it had been fully paid. On prospective spousal support the court concluded wife was entitled to $4,000 per month, plus 20 percent of husband’s gross yearly incentive pay, retroactive to January 15. After deducting his prior payments, the court found he still owed wife $10,016.
The next month, wife filed a motion seeking to adjudicate a concealed or omitted asset and for a determination of spousal support arrearages. Her supporting declaration claimed husband “concealed 1.6 million dollars over and above the stock value of the sale of the community property interest in... Malcolm Pirnie, ” and her “support was reduced for approximately four... years” by husband’s failure to pay “$36,000.00 in interest income from the stock shares.” Two days later, wife filed an order to show cause seeking the same relief.
After unsuccessfully seeking the voluntary withdrawal of the motion and order to show cause, husband filed a motion jointly requesting both pleadings be struck and sanctions under Code of Civil Procedure section 128.7. The court conducted a hearing on these matters, struck wife’s motion and order to show cause, and ordered her to pay $4,800 in fees to husband’s attorney.
The court’s formal order contained the following findings: “There was no evidence, at the time the [j]udgment distributing community property was entered, that the merger of Malcolm Pirnie and Arcadis was going to occur, ” and since husband served on neither Malcolm Pirnie’s board of directors nor belonged to the merger negotiation committee, he “did not have knowledge of the merger prior to June 2009, ” which was after to the judgment awarding him Malcolm Pirnie’s stock. In addition, the court found the August 2009 stipulation and order “defined the $1,683,741 payment... as a ‘distribution’” and “provided for the resolution of that distribution....”
DISCUSSION
1. Introduction
Wife’s opening brief is poorly organized and drafted, rendering it difficult to ascertain the legal basis of her arguments. However, it appears she is challenging the evidence supporting the trial court’s dismissal of her motion and order to show cause and the award of $4,800 in attorney fees to husband. She claims husband violated his statutory obligation to provide her with all material information on the value of Malcolm Pirnie’s stock by concealing the merger negotiations, including the $1,683,741 financial inducement he was offered to vote in favor of it. In addition, she argues the parties’ August 2009 stipulation wherein husband “‘contend[ed]’” she was not entitled to any portion of the $1,683,741 did not amount to an admission by her that she agreed with his interpretation of the judgment.
As for the spousal support arrearage claim, wife now appears to contend that, since husband’s declaration described the $1,683,741 cash payment as an “‘inducement, ’” it should have been considered in calculating spousal support. As explained below all of these contentions are meritless.
2. The Malcolm Pirnie Stock Cash Payment
While the stipulated judgment incorporating the parties’ property settlement authorized the court to subsequently “value and divide any non-distributed assets, ” the cash payment husband received for his Malcolm Pirnie stock upon its merger with Arcadis did not constitute an omitted asset. To so qualify, it had to be either “unmentioned” (Henn v. Henn (1980) 26 Cal.3d 323, 332) or, if mentioned, not adjudicated (Brunson v. Brunson (1985) 168 Cal.App.3d 786, 788). The stipulated judgment expressly awarded to husband “all interest in... Malcolm Pirnie, ” which the parties agreed was valued at $1,150,000. This included the subsequent cash payment husband received for his vote for the Malcolm Pirnie-Arcadis merger. Consequently, the payment “was obviously not missed.” (In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1112.)
Wife claims husband knew about the Malcolm Pirnie-Arcadis merger and the cash payment he would receive during their negotiation of the property settlement. This contention presents a question of fact subject to review under the substantial evidence rule. “When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. [Citations.]” (Primm v. Primm (1956) 46 Cal.2d 690, 693, fn. omitted.) In applying this standard, we “[v]iew[] th[e] evidence in the light most favorable to [the respondent], giving [that party] the benefit of every reasonable inference, and resolving all conflicts in [the respondent’s] favor....” (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) “When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]” (Primm v. Primm, supra, 46 Cal.2d at p. 694.) Although this case was presented to the trial court on the basis of competing declarations and documentary evidence, the same standard of review applies. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)
The evidence clearly supports the trial court’s ruling. Eisen’s declaration, submitted by wife, acknowledged the initial merger discussions between Malcolm Pirnie and Arcadis involved only Malcolm Pirnie’s chairman and other company executives who had signed a confidentiality agreement. Cavaluzzi’s declaration denied husband was one of the company executives who participated in the merger negotiations. Both declarations acknowledged it was not until June 2009, long after entry of the judgment awarding the Malcolm Pirnie stock to husband at a $1,150,000 valuation, that the company’s shareholders learned of the merger agreement.
Given this evidence, it was not possible for husband to disclose the merger or its effect on the value of Malcolm Pirnie’s stock when the parties negotiated the division and valuation of this asset in 2008. Noting the discrepancy over the exact day in June 2009 when Malcolm Pirnie disclosed the merger to its shareholders, wife suggests husband lied about his knowledge of the merger. Whether the disclosure occurred in early or late June is irrelevant. As just noted, the disclosure occurred after the judgment adjudicating the parties’ community interest in the stock became final. Wife’s claim husband engaged in insider trading is completely unfounded.
Therefore, the trial court properly found a lack of evidentiary support for wife’s concealed or omitted asset claim.
3. The Spousal Support Arrearage Claim
Wife’s claims concerning spousal support fares no better. First, we note her appellate argument is inconsistent with the contention she made in her motion and order to show cause. Wife’s declarations supporting those pleadings claimed her “support was reduced for approximately four... years in the course of the dissolution proceeding based upon [husband’s] representation... that I was going to receive the approximate sum of $36,000.00 in interest income from the stock shares, ” but this “payment... was never paid....” However, on appeal she claims the statement appearing in the September judgment on reserved issues that incentive payments be considered in calculating increases in spousal support should apply to the cash payment husband received from the Malcolm Pirnie-Arcadis merger because husband described it as an inducement.
Both arguments are meritless. “‘Marital settlement agreements... are construed under the statutory rules governing the interpretations of contracts generally.’ [Citation.] ‘The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties’ intention is determined from the writing alone, if possible. [Citation.] “The words of a contract are to be understood in their ordinary and popular sense.”’ [Citation.]” (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518.)
As for the parties’ integrated property settlement agreement incorporated into the June 2008 judgment, nothing in it suggests husband promised to pay wife interest on the Malcolm Pirnie stock awarded to him. The only reference to interest in the parties’ March 2009 stipulation, later incorporated into the judgment on reserved issues, was husband’s agreement to pay wife interest at 6 percent on the balance of the equalization payment from the date of the June 2008 judgment. The record reflects he paid this sum along with the final payment on the outstanding amount owed to equalize the property division.
With respect to the August 2009 stipulation and order, the parties agreed the $1,683,741 cash payment would be treated as “a ‘distribution’ pursuant to the [March] Stipulation and Order....” Thus, even if husband described the cash payment as an inducement, the parties, with full knowledge of the facts, agreed to treat it as a “distribution” which they had previously stipulated distinguished it from the “incentive compensation and bonuses” that would be considered in calculating spousal support. Finally, the September judgment on reserved issues resolved all outstanding issues concerning both retroactive and prospective spousal support, including what sums were still owed by husband.
Wife further complains the judgment did not require husband to inform her when he received an incentive payment or bonus. But again, the award of prospective spousal support in the judgment on reserved issues was based on the parties’ stipulation. In addition, nothing in the record indicates husband has failed to comply with his obligation to pay increased spousal support triggered by his receipt of “incentive compensation and bonuses.”
The trial court properly rejected wife’s spousal support arrearage claims.
4. Sanctions
Code of Civil Procedure section 128.7, subdivision (e) declares that “[w]hen imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” One statutory basis for awarding sanctions is where the “allegations [or] other factual contentions [lack] evidentiary support....” (Code Civ. Proc., § 128.7, subd. (b)(3).) Here, the court concluded wife’s motion and order to show cause were not supported by the evidence. While wife argues to the contrary, the record supports the trial court’s finding. Therefore, we find the sanctions award under Code of Civil Procedure section 128.7 meritorious.
Code of Civil Procedure section 128.7, subdivision (c)(1) states “[a] motion for sanctions under this section shall be made separately from other motions or requests....” The parties declined to discuss the effect of this requirement in their appellate briefs. As a result, we decline to consider its applicability to this appeal.
DISPOSITION
The postjudgment order is affirmed. Respondent shall be entitled to recover costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.