Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 02D008355, Thomas H. Schulte, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Van M. Nghiem, in pro. per., for Appellant.
Thien Q. Nguyen, in pro. per., for Respondent.
OPINION
BEDSWORTH, J.
Van Nghiem appeals from an order denying her motion for (1) issuance of a second Qualified Domestic Relations Order (QDRO) compelling the payment of additional funds to her from a retirement account; and (2) compelling her former husband, Thien Nguyen, to complete paperwork necessary to facilitate release of approximately $17,000 in IRA funds to her. We affirm.
Nghiem stipulated to the original QDRO, which obligated the retirement plan administrator to pay her half of the value of the account at the date of the parties’ separation, plus interest attributable to her share. Having done so, she waived any contention the amount provided for in that QDRO is inadequate.
As for the IRA funds, we conclude the court acted well within its equitable discretion in refusing to force Nguyen to comply. The undisputed evidence demonstrated that Nghiem still owes Nguyen in excess of $272,000 as an equalizing payment under the same judgment which she sought to enforce here. Under those circumstances, the court was not obligated to assist her in a one-sided enforcement of that judgment. It is a fundamental maxim of equity that “‘he who comes into equity must come with clean hands.’ [Citation.]” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638.) A court of equity “‘“closes [its] doors... to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.”’ [Citation.]” (Ibid.) Until she demonstrates her willingness and ability to satisfy the equalizing payment obligation imposed on her in the property judgment entered in the marital dissolution action between her and Nguyen, Nghiem is tainted with inequitableness in her efforts to enforce Nguyen’s financial obligations under that same judgment. Consequently, the court did not err in denying her motion.
Husband and wife Thien Nguyen and Van Nghiem, dissolved their marriage. On September 15, 2008, the court ordered a division of their marital property. Among other things, the court’s order provided:
(1) “$149,960 to be divided equally. Husband is to obtain counsel within 30 days to prepare QDROs and each side is to pay ½ of the legal fees/expenses.” According to the “Propertizer” form incorporated into the court’s order, this “$149,960” figure is the value placed by the court on an “Experiance [sic; apparently Experian] retirement account *8388 to be divided by QDRO.”
(2) “SEP IRA Fidelity #7486 and #3 ROTH IRA #1911: To be split equally. Petitioner requests cash amount. Assets are in respondent/husband’s name and he is ordered to contact Fidelity within 30 days of today re: division and cashout.” According to the “Propertizer” form, the value of the SEP IRA was $14,997, and the value of the Roth IRA was $20,222.
(3) Various real properties are awarded to Nghiem, and she is required to make an equalization payment of $274,887.00 to Nguyen.
On April 8, 2009, Nghiem moved to join Fidelity Investments, the holder of the SEP and Roth IRAs, as a party to the action, and compel it to release funds to her. The court denied Nghiem’s motion, noting that Fidelity was not a necessary party, and that she had failed prepare a formal judgment, as required by Fidelity before release of any funds. That formal judgment was subsequently entered, and it mirrors the court’s initial order dividing the properties, disposes of some additional matters not included in the original order, and incorporates a slightly revised Propertizer form, which reflects a reduction in Nghiem’s equalizing payment to $272,286.
On May 22, 2009, the court ordered Nguyen to either sign the QDRO proposed by the trial court with respect to the Experian retirement account, or propose an amended QDRO. If Nguyen failed to do either, he was required to appear in court on June 26, 2009, to face possible sanctions and to have the clerk of the court sign the original QDRO.
On July 14, 2009, the court entered an “Amended Qualified Domestic Relations Order” (QDRO), stipulated to by the parties, dividing Nguyen’s Experian retirement account. Pursuant to the terms of that amended QDRO, Nghiem was awarded 50 percent of Nguyen’s total vested account value as of June 28, 2004, which was defined as the date of their “legal separation or divorce, ” plus any earnings attributable to her share since that date. The amended QDRO did not specify the value of the Experian account on the relevant date. (Ibid.) On August 10, 2009, pursuant to the terms of the amended QDRO, Experian paid Nghiem $27,551.73.
On October 28, 2009, Nghiem moved for an order compelling Nguyen to sign a letter of instruction to Fidelity, regarding the division of the IRA accounts, and to sign a new QDRO relating to the Experian account. With respect to the latter issue, Nghiem asserted she had been entitled under the terms of the judgment to a disbursement of $74,980 from the Experian account – half of the value placed on it by the court in the judgment – and that the earlier QDRO had paid her an insufficient amount. She requested the additional QDRO “to obtain the difference.”
Nghiem attached to her motion a document which she described as “emails from [Nguyen] showing that [he]... has no intention whatsoever to comply with Court order.” What the email shows is Nguyen’s assertion that he has “reminded [Nghiem] many times” that she still owes him in excess of $272,000, plus interest, as an equalizing payment under the same marital judgment she is seeking to enforce, and that she has ignored him. He states that he “gave in” on the Experian QDRO, but insists Nghiem “cannot just keep on demanding and demanding money, and not do your part of the order. Any judge will get very upset at you for that.”
Nguyen filed a declaration in opposition to the motion. In his declaration, Nguyen explained that the court had made clear during the hearing in which it decided the division of marital property that the Experian account was to be divided as of the date of the parties’ separation in 2004, but that the “value” place on the account by the court in its “Propertizer” was instead its then-current value in 2008 (which included his substantial post-separation contributions), because that was the only figure the court had. Nguyen then stated that he had explained in emails to Nghiem prior to the execution of the earlier amended QDRO (in July of 2009) that the court’s property division order had reflected the wrong “value” of the Experian account, and that he had been advised by two separate QDRO attorneys to file an appeal to correct the error. He told Nghiem he would do that unless she just stipulated to a QDRO dividing the account as of the date of separation. Nguyen attached the relevant emails to Nghiem, in which he explained the problem. They are dated October 26, and November 8, 2008, several months prior to the amended QDRO.
Nghiem is an attorney. There is no basis to infer she would not have understood what Nguyen was telling her, or the effect of the amended QDRO she ultimately signed.
Nguyen’s opposition declaration also explained that he should not be required to complete the transfer of the IRA funds to Nghiem, because she had done nothing toward paying him the $272,000 equalization payment required by the same marital property judgment which governed the IRA funds. He stated that Nghiem had made no effort to liquidate any of the real properties assigned to her in the judgment, and had instead signed title to some properties over to her relatives as gifts. He asked the court to “grant” him the funds in the IRA accounts in “partial payment” of the equalizing payment owed by Nghiem, or, alternatively, to order those accounts be “held as collateral until she performs due diligence to pay back her debt.”
Nguyen also claimed Nghiem had not yet transferred to him a Western Reserve Life Insurance account, as ordered in the judgment.
Nghiem’s reply did not dispute anything Nguyen said. Instead, in response to his description of how he had explained the QDRO issue to her fully, and asked her to stipulate to a payout of half the value of the Experian account as of the date of separation, so he wouldn’t be forced to appeal the mistaken valuation relied upon in the court’s order, she simply claimed that she had “prepared [the amended QDRO] that way because [Nguyen] would not sign it if it was prepared any other way.” She asserted, without explanation, that her stipulation to the prior QDRO, “should not preclude [her] from enforcing court order to obtain the rest of the funds that was [sic] granted to her.”
At the hearing on December 4, 2009, the court indicated that the Experian account was properly “divided with interest as of the day of separation with any increase as a result of interest in that amount, not including any contribution by [Nguyen] after the day of separation.” The court stated the IRA issue would require further consideration, and took the matter under submission.
On December 15, 2009, Nghiem filed a “supplemental declaration” to further explain her position. As pertinent here, she claimed the judge who presided over the marital property hearing stated “the law does not allow the court to off set retirement funds against real estate debt.” She then admitted she had not made her equalizing payment, and blamed the poor real estate market. She claimed she had tried to sell one of the prior marital properties in 2007, but had been unable to do so. She claimed she would not be able to sell the properties currently for as much as is owed on them – while also admitting that one property has $30,000 in equity. She did not deny transferring title on some properties to her relatives.
On December 24, 2009, the court issued an order denying Nghiem’s motion. The order included a finding that “it was the purpose and intent of the trial court to divide only the community interest in the IRA and 401K accounts. [¶] This court finds that any funds deposited by respondent in these accounts after the date of separation... are his separate property. [¶] On this basis petitioner’s motion is denied.”
I
Nghiem first argues that the court erred in refusing to issue a second QDRO, compelling Experian to distribute an additional $47,428.27 to her – the amount she calculates to be the difference between her half of what the court “valued” the account at in its initial order, and the amount she received in accordance with the first QDRO. She is wrong.
First, in asserting error, Nghiem makes no effort to explain why her express stipulation to the earlier QDRO, which came after Nguyen explained its effect to her in some detail, would not be binding. The undisputed evidence demonstrates that Nguyen reminded Nghiem that the value placed on the account by the court had actually been its value at the time of trial, rather than at the date of separation, and that she was entitled to share in only the portion that had existed at the date of separation. He then told her he would be forced to appeal the judgment unless she agreed to a QDRO which limited her award to a share of the account as it existed on the date of separation – and excluded the amounts he had contributed after separation. Having been so informed, Nghiem agreed.
Nghiem cannot now ignore what she earlier agreed to, and successfully claim to be entitled to something else. Even if the judgment did entitle her to a greater sum from the Experian account than what she received under the terms of the QDRO, she waived her right to claim it by consenting to the QDRO. “[B]y consenting to the judgment or order the party expressly waives all objection to it, and cannot be allowed afterwards, on appeal, to question its propriety, because by consenting to it he has abandoned all opposition or exception to it.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400; Mecham v. McKay (1869) 37 Cal. 154, 158-159.)
In any event, even if Nghiem had not entered into an informed stipulation entitling her to share in only the value of the Experian account on the date of separation, her claim of entitlement to more under the terms of the judgment itself would fail. The court in a marital dissolution action has the power to divide community property, not separate property. (Fam. Code, § 2550.) Thus, the court had no power to divide the portion of the Experian account which was funded solely by Nguyen’s contributions of separate property after the parties split up. And of course, having decreed a date of separation in its judgment, the court could not have meant to assign a different one to be used for evaluating the Experian account. Thus, it is clear that what Nghiem is entitled to under the judgment is half of the value of the account on the specified date of separation – i.e., half of the community property portion – which is exactly what she got under the QDRO.
And the fact the court’s judgment reflects a particular value of the Experian account, which is different than what the account was apparently worth on the date of separation, is actually of no significance. Because the court was ordering the asset split evenly, and had otherwise decreed the relevant date of separation for purposes of determining the community interest therein, the value assigned to it serves no purpose – unlike an asset assigned solely to one party or the other, the value of this asset is not relevant in calculating the overall equal division of the community property, which is the result the court is obligated to achieve. The Experian account was simply worth whatever it was worth as of the date of separation – it is the account holder, Experian, which was required to calculate that number – and the parties were affected equally whether that actual value turned out to be lower, or higher, than what the court believed it to be. Nghiem has no more right to claim the judgment entitles her to a $74,980 payment from the account – no matter how much was actually in there as of the date of separation – than Nguyen can claim an entitlement to retaining $74,980 in the account as of the date of separation, even if that means Nghiem gets nothing. Instead, each was simply entitled to half – of whatever. Because the value of the Experian account was not material to the court’s judgment, the amended QDRO, which divided a lower amount than the court had assigned to it, was not materially inconsistent with that judgment. Thus, the court did not err in refusing to issue any additional QDRO.
II
Nghiem next contends the court erred by refusing to compel Nguyen to execute the necessary documents to facilitate the release of a total of approximately $17,000 belonging to her in two separate IRA funds, as required by the judgment. Again, we disagree. The court’s order does not provide any specific rationale for its ruling on the IRA funds, but our obligation is to review its ruling not the rationale. (People v. Zapien (1993) 4 Cal.4th 929, 976 [if the trial court’s ruling is correct “‘“upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” [Citation.]’ [Citation.]”.)
Here, Nguyen’s opposition to the enforcement of the IRA division was based on one thing: The undisputed fact Nghiem still owed him over $272,000 as an equalizing payment under the same judgment which obligated him to release the IRA funds. Under these circumstances, we conclude the court did not err in refusing to enforce Nguyen’s compliance.
“Family law court is a court of equity” (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28), and “[a]n equity court has inherent power to make its decree effective by additional orders affecting the details of performance, irrespective of reservation of power in the decree.” (Barnes v. Chamberlain (1983) 147 Cal.App.3d 762, 767.) This is an aspect of the court’s “‘inherent power... to do justice to the parties before it. [Citations.]’” (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 861.) Among other things, the court’s equitable power allows it to enjoin collection of a judgment pending resolution of a counterclaim asserted by the debtor. (Erlich v. Superior Court (1965) 63 Cal.2d 551, 556.)
Thus, in a marital dissolution case, the court may consider the surrounding circumstances in determining whether to enforce a provision of the judgment. (In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072 [court could refuse to enforce child support order for period in which child was actually in sole custody of obligor spouse].)
Here, the court was well within the scope of its equitable discretion in refusing to enforce any more payments by Nguyen as long as Nghiem remained in such flagrant default of her own obligations. Indeed, we’d have no trouble concluding the court would have abused its discretion by granting Nghiem’s request. It would be patently unfair to continue compelling performance of the judgment by one party, while ignoring the fact the other party’s much greater obligations remain unsatisfied.
We note Nghiem asserted below that Nguyen could not legally set off his obligation to convey retirement funds against her obligation to make an equalizing payment of nonretirement funds. She cited no authority to support this contention, and we express no opinion on the point. However, resolution of that contention is not necessary here, because the court ordered no set off. Instead, the court simply refused to order Nguyen to take the steps necessary to effectuate the transfer of the retirement funds. If and when Nghiem demonstrates her ability – and willingness – to comply with her own substantial financial obligations under the judgment, she is free to once again seek the court’s assistance in enforcing Nguyen’s.
DISPOSITION
The order is affirmed. Nguyen is entitled to recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.