Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert B. Axel, Judge. Los Angeles County Super. Ct. No. VD049470
The Law Office of Andrew M. Rosenfeld, Andrew M. Rosenfeld for Plaintiff and Respondent.
Law Offices of Jeffrey W. Doeringer, Jeffrey W. Doeringer for Defendant and Appellant.
ARMSTRONG, J.
In this marital dissolution proceeding, Zephran Hamlin appeals the family court's order regarding the characterization of the family home as community property, as well as an attorney's fee award in favor of his former wife, Katrina Lyons. Finding no error, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Zephran Hamlin ("Hamlin") and Katrina Lyons ("Lyons") were married on May 4, 1996, and Lyons filed for dissolution of marriage on April 29, 2002. Lyons maintained that the family's residence, acquired in 1999, was community property, while Hamlin contended that it was his separate property.
After resolving certain of the matters in contention, the parties entered into a stipulation to litigate the sole outstanding issue between them, to wit, the characterization of the family home, by way of offer of proof. Included in this offer was a pre-nuptial agreement dated May 4, 1996 and a so-called "post-nuptial" agreement dated April 14, 1999, both of which were entered into evidence without objection.
The pre-nuptial agreement provided in pertinent part that (1) all property owned by a party at the time of the marriage, and any income subsequently derived therefrom, was to remain that person's separate property, (2) "any salary and earnings" of either party during the marriage was to "be and remain his [or her] sole and separate property, and (3) "no gift in excess of $5,000 may be made between them unless the gift is conveyed by an instrument in writing, executed and acknowledged by both parties . . . ." Of particular interest to the issue before us is paragraph 20, which concerns property acquired during the marriage:
It is agreed between each of the parties hereto that any of the following require an instrument in writing signed by both parties:
a. Modification of this Agreement in any manner;
b. The conversion of the separate property of either to community property or separate property of the other.
The parties further agree that the commingling of separate and community property will not result in its conversion from separate to community or community to separate, except by an instrument in writing signed by both parties. In the event the parties acquire any property in their joint names, such property shall be deemed to be community property under the provisions of this paragraph unless the parties execute a writing evidencing a different understanding.
Prior to purchasing a family residence, Hamlin and Lyons signed a "post-nuptial agreement" entitled "Agreement Regarding the Purchase of the Property Located at 1703 Hacienda Road." The whole of this agreement reads as follows:
1. The house will be purchased as a joint tenancy (equal partners) between husband and wife (Zephran Hamlin and Katrina Lyons).
2. All purchase money including down payment and closing costs will be paid entirely by Zephran Hamlin.
3. Budgeted move in expenses of $16,000 will be paid entirely by Zephran Hamlin.
4. The amounts listed in items 2 and 3 shall be repaid to Zephran Hamlin by either refinancing the property, or taking out an equity loan. Alternatively, Katrina Lyons will pay fifty percent of the total amount paid.
5. In either repayment scenario, Zephran Hamlin will earn 8% simple interest annually on balance due.
6. All regular monthly expenses and other monetary improvements to the property are considered joint and therefore assessed at 50% each.
In addition to this documentary evidence, Lyons's offer of proof included the representation that she would testify that the post-nuptial agreement was presented to her without prior discussion of its contents or potential import; that Hamlin told her that he needed the agreement signed for business and tax purposes, and that when Lyons asked Zephran about the potential consequences of signing the document, his only response was "Don't you trust me?"
Lyons's offer of proof continued:
Hamlin's offer of proof was to the effect that the parties had discussed the terms of the post-nuptial agreement at length and in detail.
Lyons argued that the post-nuptial agreement was not valid because, "under Family Code section 721(b) and Family Code 1100(e) that fiduciary relationship and the duties imposed by that relationship simply were not met." She also maintained that, pursuant to paragraph 20 of the pre-nuptial agreement, this jointly acquired property "unlike the other properties mentioned in the prenuptial becomes community and any separate property put into that community loses its separate property character and becomes community property."
Hamlin argued that, "It is the position of the respondent that the parties were to hold this property jointly and as community property only if and in the event that each complied with the terms of the agreement so that the benefit of joint ownership would flow to them." Because Lyons did not contribute her agreed portion and thus breached the agreement, Hamlin argued, the residence should be awarded to him as his separate property: "The respondent is requesting that this property be awarded to him and that it be awarded on the basis that there was no consideration and consideration failed under the contract inasmuch as the petitioner failed to meet her burdens in number one the reimbursement and particularly under paragraph no. 6."
The trial court ruled that "the property is community property in toto, that the respondent as you would in any separate property contribution will be entitled to receive his separate property contribution in form of the down payment and the closing cost of 41,530 will be reimbursed from the sales proceeds of the property . . . ."
Subsequently, Lyons sought approximately $30,000 in attorney fees. The court awarded her $10,000.
Hamlin timely appealed the court's ruling that the residence was community property, as well as the award of attorney fees.
DISCUSSION
1. Validity and effect of post-nuptial agreement
"A written agreement, unless it is ambiguous, must be construed by a consideration of its own terms. The meaning and intent thereof is a question of law and the reviewing court is not bound by the trial court's findings and conclusions regarding such intent and meaning." (Keeler v. Haky (1958) 160 Cal.App.2d 471, 474.) We note as well that, because no testimony was taken, no credibility determinations were made by the trial court.
Hamlin argues that under paragraph 20 of the pre-nuptial agreement, the "written Post-Nuptial Agreement was an expressly approved methodology to confirm separate property status in the event of a joint acquisition." The problem with this argument is that nowhere in the post-nuptial agreement is the character of the property described; that is to say, the agreement does not state that the residence is to be jointly held by the parties as their separate property. Thus, although a written agreement which specified that a jointly acquired residence was to be deemed the separate property of the parties would be valid and enforceable, that is not what this agreement provided.
Hamlin continues with his interpretation of the post-nuptial agreement, which he contends establishes that the residence was to be his separate property: "Each of the parties are separate entities, and as to this venture or acquisition, they will each bear 50% of the cost and expense even if Zephran advances funds for down payment or move-in," and the Post-Nuptial Agreement "clearly sets forth that the transaction of acquisition will be as 'equal partners.'" However, the fact that the parties are separate entities, equal partners, and will each contribute equally to the down payment and move-in expenses does not lead to the inevitable conclusion that the residence is not community property. On the contrary, the parties may agree that they will contribute equally to the upfront costs of a home purchase, with the intention of holding title as community property; indeed, there is nothing inherently unequal about a married couple owning their residence as community property. And again, the post-nuptial agreement is simply silent on the question of the separate versus community character of the property. For this reason, we cannot agree with Hamlin's statements that the "'purpose' of the Post-Nuptial Agreement was and is clear when read as an adjunct to the Pre-Nuptial Agreement," and reject his conclusion that "To deny enforcement of the Post-Nuptial Agreement is to deny the stipulated validity of the Pre-Nuptial Agreement." To the contrary, the pre-nuptial agreement specifies that jointly acquired property is to be community property unless the parties specify otherwise in writing. Because the post-nuptial agreement does not specify that the residence is to be held by the parties as their separate property, paragraph 20 of the pre-nuptial agreement mandates that the residence is community property. Consequently, even if the post-nuptial agreement is valid, it does not have the effect advanced by Hamlin.
Finally, Hamlin argued in the trial court that it was the parties' original intention that the property would be held as their community property, but that the parties further intended that, if Lyons did not contribute funds to the purchase and maintenance of the property, the property would become Hamlin's sole, separate property. If this argument is accepted, then the residence was initially acquired as the parties' community property, and was later transmuted to Hamlin's separate property by a wont of consideration. However, while community property may be transmuted to separate property, it may only be done so "in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." (Fam. Code, § 852.) Because no such writing appears in the record, the trial court did not err in concluding that the Hacienda residence was originally acquired as, and remained, the couple's community property.
Indeed, in his mandatory settlement conference/trial brief prepared in April 2004, Hamlin listed the family residence as community property, and only sought reimbursement of the down payment, which is precisely what the judge ordered in September 2006.
2. Attorney's fee award
The trial court ordered Hamlin to pay $10,000 of Lyons's attorney fees. Hamlin contends that the order must be reversed, because (1) the court did not make the finding required by Family Code section 270, and (2) Lyons "had not filed a current Income and Expense Declaration; . . . Thus, the court made an order based on no current facts. This is erroneous."
Hamlin cites In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 576, in support of his argument. That case, concerning modification of a spousal support order, is inapposite.
Family Code section 270 provides, "If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay." In this case, the trial court based the attorney fee award "on the relative financial conditions of the parties." The court had available to it Hamlin's Income and Expense Declaration filed September 28, 2006. Hamlin's declaration reflected liquid assets (deposit accounts, stocks and bonds) of $590,000. Thus, substantial evidence supports the trial court's implied finding, pursuant to Family Code section 270, of Hamlin's ability to pay the $10,000 attorney fee award.
As to Hamlin's second assertion, that Lyons had not filed a current income statement, this is a new argument on appeal. At the hearing on the attorney fee motion, Hamlin's counsel stated, "She's filed a current income and expense declaration for you . . . ." Hamlin did not contend below that the trial court should not award Lyons attorney fees based on her financial situation, and so may not do so on appeal. (Jones v. Wagner (2001) 90 Cal.App.4th 466, 481.)
DISPOSITION
We affirm the trial court's order. Respondent to recover costs on appeal.
WE CONCUR:
TURNER, P. J., KRIEGLER, J.
"She would testify that she was given no disclosure as to what the down payment on the home was and that she was given absolutely no documents in connection with being presented this document of 4-14-1999.
"She would testify that there was no disclosure made to her of the actual moving cost and there was no document presented to her regarding any actual moving cost.
"There was no disclosure to her of any interest requirements or what legal rates of interest would be or anything relative to truth [in] lending disclosures.
"She would also testify that there was no disclosure as to what monthly expenses he was referring to in the document, no disclosure as to what he meant by other monetary improvements. There was no discussion. It was simply this document, a single page presented to her.
"She would testify that there was no disclosure as to the effect of this document on paragraph 20 of the prenuptial agreement, that that was not discussed with her at all. The fact that this would potentially have an impact on the terms of paragraph 20 of the prenuptial was never discussed with her. She was not advised that she could get independent counsel. She was not provided an opportunity to seek counsel.
"She would testify that the respondent insisted that [s]he sign the 4-19-99 document at the very moment and that she felt pressured to do so and that on more than one occasion he did tell her to trust him."