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In re Marriage of Lisman

California Court of Appeals, Second District, Sixth Division
Mar 17, 2008
2d Civil No. B197459 (Cal. Ct. App. Mar. 17, 2008)

Opinion


In re Marriage of CHARLES and DAWN LISMAN. CHARLES LISMAN, Appellant, v. DAWN LISMAN, Respondent. B197459 California Court of Appeal, Second District, Sixth Division March 17, 2008

NOT TO BE PUBLISHED

Bruce A. Young, Commissioner Superior Court County No. D318645, of Ventura

Orrock, Higson & Kurta, R. Dennis Orrock and Paula D. Emmons for Appellant.

Ferguson Case Orr Patterson, Gregory W. Herring, Douglas K. Goldwater and Sandra M. Robertson for Respondent.

GILBERT, P.J.

Dawn Lisman appeals an order of the family law court denying her application for child support and spousal support arrearages. We remand for determination of incomplete child support payments made from May through August, 2005, but otherwise affirm.

FACTS AND PROCEDURAL HISTORY

On April 8, 2004, Dawn and Charles Lisman separated after a marriage of two years and eight months. The couple had two minor children and resided in Kern County. On April 29, 2004, Charles filed a petition in Kern County to dissolve the marriage. On October 22, 2004, the family law court ordered Charles to pay Dawn $2,000 in temporary support as an "uncharacterized payment."

We refer to the parties by their first names not from disrespect, but to ease the reader's task.

On November 30, 2004, the Kern County family law court held a hearing and dissolved the marriage. The court approved a "Stipulation and Order" executed by the parties. The stipulation provided that Charles would pay Dawn $1,500 monthly as permanent child support, and $500 monthly for 18 months as spousal support. Dawn and Charles appeared in propria persona at the hearing, although in prior proceedings, each had retained counsel. The court ordered Charles to prepare and submit a formal dissolution judgment.

The court executed the judgment on January 11, 2005. For unknown reasons, however, the judgment was not entered until April 5, 2005, nearly three months later.

In the interim, Dawn and Charles executed a notarized one-page agreement dated February 4, 2005. Dawn prepared the agreement in propria persona regarding her desire to relocate to Ventura County with the two children. In relevant part, the agreement provides: "This is a letter to confirm that I Dawn Lisman, ha[ve] given Charles Lisman notice that I will be moving to Camarillo Ca, with our two daughters . . . . Charles is fully aware of the moving situation and has agreed to let us move with the following stipulations: . . . . A reduction in child support from [$]2,000 a month to [$]1,000. . . .Shortly thereafter, Dawn and the children moved to Camarillo.

We attach a photocopy of the one-page agreement as an appendix to this opinion.

For twenty-two months, Charles paid and Dawn accepted $1,000 monthly support. On November 13, 2006, Dawn petitioned the Ventura County family law court to set aside the February 2005 agreement and order Charles to pay $16,216 in child support and $9,900 in spousal support arrearages. Charles resisted the petition and asserted that the February 2005 agreement modified the stipulation and order approved by the Kern County family law court. After written and oral argument, the court determined that the parties intended the February 2005 agreement to modify the stipulation and order. The court also denied Dawn's request for an evidentiary hearing concerning her claim that Charles coerced her into preparing and executing the agreement. The court stated: "[Dawn] received the benefits of th[e] bargain and cannot now request that the court set aside the provisions of the agreement that do not benefit her and simply enforce the ones in her favor for which she bargained . . . ." The court also determined that it retained jurisdiction regarding spousal support.

Dawn appeals and contends that the family law court erred by deciding that the February 2005 agreement modified the judgment.

DISCUSSION

I.

Dawn argues that the court erred by not applying the holding of In re Marriage of Hamer (2000) 81 Cal.App.4th 712, 718 [once entered, a judgment for child and spousal support is not retroactively modifiable]. She points out that the Kern County court entered judgment regarding the higher-limit child and spousal support obligations on April 11, 2005, two months following the February 2005 letter agreement. Dawn contends that the later-entered judgment controls over the modification letter agreement.

Although In re Marriage of Hamer, supra, 81 Cal.App.4th 712, is similar in part, it is distinguishable and not persuasive. In Hamer, the parties stipulated to child and spousal support amounts and circulated a stipulated judgment for signature. During that time, husband successfully sought modification of the support payments. Wife consented in writing to modification of the support. On the day husband filed the modification order, wife executed the stipulated judgment, which was later filed. Thereafter, husband paid support in the amount ordered in the modification order. Five years later, wife sought arrearages from husband based upon the support amounts ordered in the stipulated judgment.

Hamer concluded that the stipulated judgment filed in November 1993 superseded the October 1993 modification order. (In re Marriage of Hamer, supra, 81 Cal.App.4th 712, 717-718.) The court also concluded that husband "presented no evidence of an express oral agreement with [wife] to accept less than the amounts required by the judgment of dissolution and to forego collection of the difference, or other conduct so inconsistent with an intent to enforce the rights to support established by the judgment as to induce a reasonable belief that those rights had been relinquished." (Id., at p. 721.)

Here Dawn drafted and presented an agreement modifying support in exchange for Charles's acquiescence to her move to Ventura County with the children. As the court found, the parties had a written agreement modifying support and twenty-two months of post-agreement conduct evidencing their agreement. Moreover, the parties presented no evidence regarding the reasons for the late-filing of the stipulated judgment, nearly three months after the family law court signed it.

II.

Dawn asserts that the court erred by permitting the February 2005 agreement to abridge the children's support rights. (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469 [agreements and stipulations abridging a parent's statutory child support obligation are void].) She also argues that the February 2005 agreement does not comply with the requirements of Family Code section 4065, concerning declarations by parents where a stipulated support agreement falls below the guideline formula.

All further statutory references are to the Family Code unless stated otherwise.

The court did not err. Section 3580 permits a husband and wife to "provide in [an] agreement for the support of either of them and of their children . . . upon the dissolution of their marriage." The February 2005 agreement modified the child support obligation to $1,000 monthly. The agreement did not abridge the children's right to support nor did it restrict the court's power to act on behalf of the child in support proceedings. (In re Marriage of Lusby, supra, 64 Cal.App.4th 459, 469.) The family law court retains continuing jurisdiction regarding child and spousal support, and the parties may seek a modification of the February 2005 agreed-upon payment amounts upon a proper showing.

Section 4065 requires the parties to declare that they are fully informed of their rights concerning child support, the support order being agreed to is without coercion or duress, the agreement is in the best interests of the children, and the needs of the children will be adequately met by the stipulated amount, prior to court approval of the stipulation. Dawn did not seek the approval of the family law court prior to presenting Charles with the February 2005 agreement, however, and she may not now complain of her noncompliance with the statute.

III.

Dawn argues that the family law court erred in interpreting the February 2005 as a waiver of spousal support. She points out that the agreement does not mention spousal support and that ambiguities in the agreement must be interpreted in favor of support. (In re Marriage of Vomacka (1984) 36 Cal.3d 459, 474 [policy of law to interpret ambiguous spousal support agreement in favor of support].)

In interpreting the February 2005 agreement, the court found that the monthly spousal support was reduced to zero, but that Dawn did not waive the right to receive support. We agree and interpret the agreement as modifying spousal support to zero, as a question of law. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 [marital settlement agreements are to be construed under the rules governing the interpretation of contracts].) The agreement refers to a "child support" amount of $2,000. The stipulated judgment provides for a combined support amount of $2,000: $1,500 child support and $500 spousal support. We construe the agreement as a whole "to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641.) Moreover, we construe the agreement against Dawn because she caused any uncertainty to exist. (Civ. Code, § 1654.)

IV.

Dawn contends that the court abused its discretion by denying her an evidentiary hearing regarding coercion and duress. She points out that she and Charles submitted conflicting evidentiary declarations concerning the issue. Dawn adds that the court did not elicit an offer of proof from counsel nor did it allow cross-examination of Charles. She claims that the trial court's refusal to receive oral testimony denies her due process of law.

The family law court, in its sound discretion, may determine motions or orders to show cause upon declarations alone. (Code Civ. Proc., § 2009; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1059, fn. 3.) Here Dawn received notice of the hearing and submitted written argument and an evidentiary declaration. The family law court reviewed the motion, written arguments, and the parties' declarations, and held a hearing at which counsel argued. The court did not deny her due process of law by denying a hearing to receive oral testimony. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1363 [courts have drawn distinctions between trials and hearings on post-judgment motions in family law courts].)

V.

Dawn contends that Charles did not pay the full support amounts for May through August, 2005. She points out that she sought an order requiring additional payment of $3,242 for those months, but the family law court did not rule upon the matter. Dawn is correct that the family law court neglected to rule upon this issue.

We remand the matter for resolution of the limited issue of child support payments for the months of May through August, 2005, but otherwise affirm. The parties shall bear their own costs.

We concur: YEGAN, J. COFFEE, J.


Summaries of

In re Marriage of Lisman

California Court of Appeals, Second District, Sixth Division
Mar 17, 2008
2d Civil No. B197459 (Cal. Ct. App. Mar. 17, 2008)
Case details for

In re Marriage of Lisman

Case Details

Full title:In re Marriage of CHARLES and DAWN LISMAN. CHARLES LISMAN, Appellant, v…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Mar 17, 2008

Citations

2d Civil No. B197459 (Cal. Ct. App. Mar. 17, 2008)