Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 00FL02239
OPINION ON REHEARING
SIMS, Acting P.J.
Appellant Anne E. Montgomery (Wife) appeals from a post judgment ruling whereby the trial court denied her further payment of proceeds from the sale of the family residence, to which Wife argued she was entitled under the terms of the judgment on reserved issues. Finding the trial court erred, we shall reverse and remand with instructions to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Judgment
A judgment of dissolution in this matter was entered on June 19, 2000. Incorporated into the judgment was the parties’ marital settlement agreement (collectively, the judgment), which awarded the family residence to Husband. The judgment also included the following provision: “A. Parties agree that Wife and child shall reside at the family residence located at 4210 54th Street, Sacramento, CA 95820 until Wife is able to reside in another house. Wife shall pay to Husband the full amount of the existing mortgage payment as rent while Wife resides in the family residence.
“B. Husband shall either refinance or assume the existing mortgage solely in Husband’s name, within sixty (60) days, thus removing Wife’s obligation in the family residence mortgage. If the mortgage is not refinanced or assumed within sixty (60) days, the parties agree to sell the residence and divide equally any profit or loss.”
B. The Family Residence
The parties do not dispute that respondent Earl Bruce Harwood, Jr. (Husband) failed to “refinance or assume the mortgage solely in [his] name, within sixty (60) days . . . .” There is no dispute that Wife continued to live with the parties’ minor child in the family residence until September 2003, during which time she continued to pay the mortgage directly to the mortgage company. It is also undisputed that from 2002 to 2006, Husband gave Wife money each month in excess of his support obligation, which over that period of time totaled $22,175.
In March 2001, Wife executed a quitclaim deed, transferring title to Husband. Wife testified she did so because Husband told her he could not refinance the home unless title was exclusively in his name. Two and one-half years later, in September 2003, Wife and the minor child moved out of the family residence. The home sold shortly thereafter in October 2003.
In anticipation of escrow closing, Wife told Husband she expected her equal share of the net proceeds from the sale of the family residence (the proceeds). Husband told her he did not believe she was entitled to half and would not give it to her. Husband testified their discussions regarding the proceeds were “[v]ery minor.” In any event, when the house did sell in October 2003, resulting in net proceeds of $89,849.68, Husband paid Wife $25,000 from the escrow account.
C. Long Cause Hearing on Wife’s Motion to Enforce the Judgment
In April 2006, Wife filed a motion seeking to enforce the judgment and obtain her remaining share of the proceeds and to increase child support. Husband filed his own motion to modify custody. Ultimately, both motions were set for a long cause hearing, at which Husband argued the $25,000 payment he made to Wife was an accord and satisfaction of his debt to her under the judgment. Alternatively, he argued that he should receive a credit for the money he voluntarily paid to Wife in excess of his support obligation. In support of his argument that the $25,000 was an accord and satisfaction of the judgment debt, Husband testified that he paid Wife the $25,000 out of escrow “in an effort to resolve their disagreement.” He explained that he would not have paid Wife the $25,000 if he knew she would pursue the remainder of her share of the proceeds. Wife testified that when she accepted the $25,000 she had not considered whether she would pursue the remainder of her share; at the time, she believed it was in their son’s best interest not to argue about money.
Husband also testified that he paid Wife the additional money over the years “because she had expenses that needed to be paid, and one of them primarily was the house at the time she lived in it.” Nevertheless, he admitted he would not have given her this money either if he had known she would seek to enforce the provision of the judgment entitling her to half of the proceeds. At trial, he argued that regardless of whether there was an accord and satisfaction, he should be entitled to offset against his judgment debt the more than $22,000 he paid Wife in excess of his support obligation.
D. The Trial Court’s Ruling
After hearing testimony from both parties, the trial court ruled as follows: “I’m going to deny the request for further proceeds from the judgment for the family residence. I think, first of all, both parties waived the sixty days, that the Petitioner has amply been reimbursed for her portion, and whether one wants to call it a satisfaction -- an accord and satisfaction or some other construction, there is no equitable grounds upon which the Court could see that further payment from [Husband] would be appropriate under the factual circumstances that this [c]ourt finds . . . .”
The court later filed formal Findings and Order After Hearing, prepared by Wife’s counsel, which read: “A dispute has arisen over construction of judgment and the family residence. The Family Residence was awarded to Husband in the judgment. Wife was allowed to reside there with the child and upon payment of mortgage.
“The judgment gave Husband 60 days to refinance or assume the mortgage to remove Wife’s liability. A refinance or assumption did not occur but neither party sought to enforce within a reasonable time. Thus each party waived the 60 day obligation.
“The judgment provided the penalty of sale and division of proceeds of property if not performed within 60 days but both waived this provision.
“Wife stayed in the family residence until 2003. The house was listed for sale, she moved out, but maintained the mortgage. Earlier, Wife had signed a quitclaim to Husband. After the house sold, [Husband] gave Wife $25,000.00 from the sale proceeds[,] which she accepted without objection. Satisfaction of obligation.
“During the past 5 years Husband has given Wife about $22,000.00 in excess of his child support obligation. Husband testified had the net proceeds of the Family Residence sale been divided, each would have received $45,000.00. Husband has no further obligation to Wife under the judgment.”
Wife appeals the court’s order.
The trial court initially signed two separate findings and orders after hearing. On March 19, 2007, the court vacated the order filed January 22, 2007, and ruled that the order entered on January 16 is the operative order. It is from the January 16, 2007, order that Wife appeals.
DISCUSSION
A. Accord and Satisfaction
“The elements of an accord and satisfaction are: (1) a bona fide dispute between the parties, (2) the debtor sends a certain sum on the express condition that acceptance of it will constitute full payment, and (3) the creditor so understands the transaction and accepts the sum.” (In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058.) “An accord and satisfaction may be implied. (Thompson v. Williams, supra, 211 Cal.App.3d at p. 571.) Whether a transaction constitutes an accord and satisfaction depends on the intention of the parties as determined from the surrounding circumstances, including the conduct and statements of the parties, and notations on the instrument itself.” (In re Marriage of Thompson, supra, 41 Cal.App.4th at pp. 1058-1059, citing Wallace v. Crawford (1937) 21 Cal.App.2d 394, 404.)
Here, regardless of whether the dispute surrounding the division of proceeds was bona fide, there is no evidence in the record that Husband communicated to Wife his intent that the $25,000 be an accord and satisfaction of his debt to her under the judgment. Therefore, Wife could not have understood the transaction and accepted the sum. (In re Marriage of Thompson, supra, 41 Cal.App.4th at p. 1058; contra Thompson v. Williams (1989) 211 Cal.App.3d 566, 574 [parties “dickered” over amount due under agreement, payor offered partial payment saying, “take it or leave it,” payee accepted the partial payment without objection, and the court found an accord and satisfaction].) Accordingly, on this record, we find no evidence of an accord and satisfaction.
B. Waiver
Wife notes in her opening brief that the issue of waiver was not tendered for the long cause hearing because Husband failed to include the issue in his statement of issues and contentions or his trial brief. On rehearing, Husband argues the issue was tendered, despite the omission. After reviewing the entire record on appeal, including witness testimony, argument of counsel, and the order prepared by Wife’s counsel, which included the court’s ruling on waiver without objection, we conclude the issue of waiver was fairly tendered and litigated. In so ruling, we note the inherently informal nature of family law proceedings that often results in form following function in order to reach the correct result, as here.
Having found the issue of waiver was fairly litigated in the trial court, we nevertheless conclude there was insufficient evidence to support the trial court’s finding that “[t]he judgment provided the penalty of sale and division of proceeds of property if not performed within 60 days but both waived this provision.”
“Case law is clear that ‘“[w]aiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” [citation].’ [Citations.] The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. [Citation.]” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31; Kacha v. Allstate Ins. Co. (2006) 140 Cal.App.4th 1023, 1033-1034; Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1189-1190; Aloha Pacific v. Cal. Ins. Guar. Ass'n (2000) 79 Cal.App.4th 297, 313.)
There is no evidence of an express waiver on this record. Nor, in our view, may a waiver be implied. At trial, the only evidence presented to support Husband’s claim of waiver was: (1) Wife did not force Husband to refinance or sell the family residence within 60 days, and (2) Wife waited nearly three years after the residence was sold to pursue the remainder of her share of the proceeds. Such evidence is not “clear and convincing evidence” that Wife intended to waive her right to an equal share in the proceeds from the sale of the family residence.
Wife’s decision to continue living in the family residence and pay the mortgage was consistent with the terms of the judgment, which allowed her to live in the family residence until she was “able to reside in another house.” Given Wife’s apparent financial circumstances, it was not in her best interest, or the minor child’s, to force Husband to refinance or sell the residence within 60 days. Nor was she obligated to do so. Her decision to wait to pursue the funds does not amount to clear and convincing evidence that Wife intended to waive her right to do so in the future. (Kay v. Kay (1961) 188 Cal.App.2d 214, 218 [“Mere lapse of time does not amount to waiver”].)
Moreover, at trial Wife explained that she did not immediately pursue the remainder of her share of the proceeds because she believed it was in their son’s best interest not to argue about money. When asked whether she intended never to pursue the remainder of her share, Wife testified as follows:
“Q. At that time did you intend to sue him for the rest?
“A. No.
“Q. Did you intend at that time that that issue was settled?
“A. I didn’t think about it that way. I don’t know.”
This testimony does not amount to clear and convincing evidence that Wife made the “conscious decision not to sue for ‘the rest,’” as Husband claims that it does. On the contrary, it establishes that Wife had not made any decision about whether to pursue the remainder of her equal share.
In re Marriage of Paboojian (1987) 189 Cal.App.3d 1434 (Paboojian), superseded by statute as stated in In re Marriage of Hamer (2000) 81 Cal.App.4th 712 at pages 721 through 722, upon which Husband relies, does not change that conclusion. There, the husband told the wife he could not afford to pay the court ordered spousal support. (Paboojian, at p. 1437.) The wife responded: “[T]ake care of the children and forget the alimony.” (Ibid.) She then waited 16 years before seeking to enforce the spousal support order. (Id. at p. 1439.)
On appeal, the court found the wife’s statement, combined with a 16 year delay in seeking to enforce the order for spousal support, resulted in conduct “so inconsistent with the intent to enforce the right to support that it corroborate[d] the trial court’s finding of a waiver.” (Paboojian, at p. 1439.)
Here, Wife made no similar statement; she waited less than three years to pursue the remainder of her share of the proceeds; and the evidence indicates she had no reason to waive her right to those proceeds. In fact, given the evidence at trial, waiving the right would likely have resulted in a financial hardship to her and the parties’ minor child.
In sum, Wife’s conduct was not “so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it [was] relinquished.” (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41; Pacific Business Connection, Inc. v. St. Paul Surplus Lines Ins. Co. (2007) 150 Cal.App.4th 517, 525.) “[D]oubtful cases will be decided against a waiver.” (Church v. Public Utilities Com. (1958) 51 Cal.2d 399, 401; Waller v. Truck Ins. Exchange, supra, 11 Cal.4th at p. 31.) Accordingly, we conclude the trial court erred in finding Wife waived her right to an equal share of the proceeds from the sale of the family residence.
C. Laches
Husband argues on appeal that Wife is precluded by the equitable defense of laches from pursuing additional money from the proceeds. Husband did not include laches as a defense in either his statement of issues or his trial brief nor was it litigated at trial. Because he did not raise the defense below, he cannot raise it here. (Canal-Randolph Anaheim, Inc. v. J. E. Wilkoski (1980) 103 Cal.App.3d 282, 289 [laches may not be raised for the first time on appeal]; Hege v. Worthington, Park & Worthington (1962) 209 Cal.App.2d 670 [laches may not be raised for the first time on appeal].)
D. Credit for Additional Money Paid to Wife
Wife argues in her opening brief that the trial court erred in using the approximately $22,000 Husband paid to Wife in excess of his support obligation to offset Husband’s debt to her under the judgment. Although Husband argued this issue at the long cause hearing, he did not address the issue in his brief on appeal. However, at oral argument Husband contended the trial court was entitled to set off the $22,000 against Wife’s entitlement to her share of the house proceeds. Because this appears to be the primary basis for the court’s ruling we will consider it even though Husband did not discuss the issue of set-off in his brief.
It is Wife’s position that equity demands Husband not receive credit for what he deems an “overpayment of support.” However, none of the cases cited by Wife addresses this issue. (In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1074 [payor parent entitled to an offset against child support arrearages for the time that he or she has lived with the child and provided direct support]; In re Marriage of Peet (1978) 84 Cal.App.3d 974, 980 [courts have discretion to apply prior overpayment of child support toward child support arrearages]; Williams v. Williams (1970) 8 Cal.App.3d 636, 638-640 [payor spouse cannot use debt he or she is owed by payee spouse to offset spousal support obligation].)
Here, Husband voluntarily paid Wife money in excess of his support obligation. Husband was under no obligation to give Wife additional support. Thus, absent an agreement to the contrary, the money he gave to her was a gift. He cannot now use that gift to offset his obligation under the judgment.
It is true that Wife has now received more cash than she would have received if Husband had not given her the additional money but had given her only half the proceeds. Nevertheless, given that, by Husband’s own admission, Wife needed the money to survive, the money cannot accurately be described as a windfall. Wife had primary custody of the parties’ minor child, and some portion of the additional money was used to pay the mortgage on the family residence, thereby preserving a community asset.
The trial court ruling is reversed.
DISPOSITION
The trial court ruling is reversed. The matter is remanded with instructions to the trial court to order Earl Bruce Harwood, Jr., to pay Anne E. Montgomery her remaining share of the proceeds from the family residence pursuant to the terms of the judgment, $19,924.84, plus legal interest as determined by the trial court. Wife is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: NICHOLSON, J., HULL, J.