Opinion
G045071 Super. Ct. No. D331803
01-23-2012
In re the Marriage of NANCY R. and IVAN K. STEVENSON. NANCY R. STEVENSON, Respondent, v. IVAN K. STEVENSON, Appellant.
Law Offices of Michel & Rhyne, Michael L. Michel; Law Offices of Ivan K. Stevenson and Ivan K. Stevenson for Appellant. Shuff Law Firm and Tamara C. Shuff for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge. Affirmed.
Law Offices of Michel & Rhyne, Michael L. Michel; Law Offices of Ivan K. Stevenson and Ivan K. Stevenson for Appellant.
Shuff Law Firm and Tamara C. Shuff for Respondent.
Ivan K. Stevenson appeals from the court's order requiring him to reimburse Nancy R. Stevenson for one-half of their daughter's reasonable college expenses. We affirm the order.
The order is appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2).
Plaintiff also appeals from the court's order denying his motion for reconsideration. The majority view, with which we concur, is that such an order is not appealable. (Tate v. Wilburn (2010) 184 Cal.App.4th 150, 158159; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1575.) Effective January 1, 2012, the majority view has now been expressly adopted by the Legislature. (Code Civ. Proc., § 1008, subd. (g) ["An order denying a motion for reconsideration . . . is not separately appealable"].) Therefore, the appeal from the order denying reconsideration is dismissed.
For clarity and ease of reference, we refer to the parties by their first names. We mean no disrespect.
FACTS
More than 16 1/2 years after final judgment was entered dissolving Ivan's and Nancy's marriage, Nancy filed an order to show cause (OSC) seeking an order compelling Ivan to pay a portion of the expenses she had incurred for their daughter's education at the University of North Carolina. Nancy alleged Ivan was required to make this contribution to their daughter's education pursuant to the terms of the final marital dissolution judgment entered in March 1993.
Ivan moved for judgment on the pleadings on the OSC. He argued he had no obligation to pay for any of their daughter's college expenses because she attended a public university instead of a Catholic university or college.
As an exhibit to his motion, Ivan attached a copy of the 1993 judgment of dissolution. The judgment provided, in relevant part: "Both parties shall pay one-half (1/2) of any and all educational expenses of the minor child . . . through a private school (primary and secondary grades) and college or university. The college expenses shall be limited to four years and are contingent upon the child attending full-time and maintaining a 'C' or better grade average."
As an additional exhibit, Ivan attached a copy of a June 1996 move-away order allowing Nancy to move to North Carolina with physical custody of their daughter. The document contained the following order agreed to by the parties: "[Daughter] shall continue to be raised in the Catholic religion, including but not limited to, enrolling [her] in a Catholic school whenever available. Father shall be consulted and participate in the selection of schools for [her]." Nancy's attorney signed the document, approving it as to form and content.
Ivan declared: (1) at the time of the marital settlement agreement reflected in the 1993 judgment, he intended that their daughter would "attend private primary, secondary, college and university"; (2) upon Nancy's move to North Carolina, "the issue of education became a primary issue of contention," and therefore the court's 1996 move-away order specified their daughter was "to attend Catholic primary, secondary, college and university"; and (3) at "no time did [Nancy] ever consult with, contact or discuss the issue of education involving [their daughter] beyond high school."
The parties and the court referred to the proceeding as a motion for judgment on the pleadings, and as having "agreed to submit the matter on the pleadings . . . ." Since extrinsic evidence was submitted by the parties, however, the proceeding would more appropriately be described as an agreement to submit the OSC for decision based upon the moving and responding papers. (See Code Civ. Proc., § 438, subd. (d) ["The grounds for motion [for judgment on the pleadings] shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice"].)
In a December 8, 2010 minute order, the court ruled: "The main issue . . . is whether or not [Ivan] was required to pay college expenses for [his and Nancy's] adult daughter at a non-Catholic college or university." "The judgment of March 3, 1993 in this case was by stipulation." "The . . . primary issue is whether or not [Ivan] is required to pay education costs at a non-Catholic University or College. The disputed language is as follows: [¶] 'Both Parties shall pay one-half (1/2) of any and all (emphasis added) [sic] of the minor child, Christina Y. Stevenson, through a private school (primary and secondary grades) and college or university. The college expenses shall be limited to four years and are contingent upon the child attending full-time and maintaining a 'C' or better grade average. (emphasis added) [¶] A fair reading of this clause leads the Court to conclude that the language of this clause requires payment at a private school which is then defined as primary and secondary. It does not further define private school at any higher level. In fact, in setting forth the obligation for payment of college and university expenses, the only two requirements are that she attend as a fulltime student and that she maintain a 'C' average. If [Ivan] wanted to require as an additional condition that she attend a private university or college, he could have said so, but he did not. His failure to include such language is telling. Furthermore, private college does not necessarily equate to Catholic college or university as suggested in [Ivan's] memorandum of Points and Authorities." "Lastly, even though [it] is not necessary to this decision, the Court finds that to the extent that the child is required to attend a Catholic college or university as opposed to a private college or university, such a requirement is void as contrary to California public policy and the First Amendment to the United States and California Constitutions. In re Marriage of Martin and Weiss 42 Ca1.App.4th 106. See also In re Marriage of Mentry 142 Cal.App.3d 260 and In re Marriage of Murga 103 Cal.App.3d 498. [¶] The Court therefore finds that the stipulated judgment is valid, and enforceable when daughter attends a public college or university . . . . The Court orders [Ivan] to pay all such costs, and the payments shall bear statutory interest from the time of accrual to payment."
DISCUSSION
Ivan contends the court erred as a matter of law by interpreting the marital settlement agreement to require him to pay one-half of his daughter's expenses at a public university. He asserts that, under the agreement, the following were conditions precedent to his contractual obligation to pay half of the college expenses: (1) the college or university had to be a private one; (2) the college or university had to be Catholic, if one was available; and (3) Nancy was required to consult with him regarding the selection of a college or university.
Ivan devotes much of his brief to arguing that the settlement between the parties constitutes a contract. Nancy does not dispute that the parties agreed to the educational expense provisions in the 1993 judgment and the 1996 move-away order.
"'Marital settlement agreements incorporated into a dissolution judgment 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."'" (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518; see also Civ. Code, §§ 1636, 1638, 1644.) "'When no extrinsic evidence is introduced, or when the competent extrinsic evidence is not in conflict, the appellate court independently construes the contract.'" (In re Marriage of Simundza, at p. 1518.) Ivan's declaration, expressing his undisclosed subjective intent at the time he entered the marital settlement agreement, is not competent evidence. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956 ["The parties' undisclosed intent or understanding is irrelevant to contract interpretation"].)
Interpreting de novo the 1993 judgment's educational expenses provision, we affirm the court's order. The provision's second sentence states that each party's obligation to pay half of their daughter's college expenses is limited to four years and is conditioned on their daughter attending full time and maintaining at least a C grade average. The detail and clarity of this sentence — in contrast to the ambiguity in the first sentence as to whether the adjective "private" (that precedes the word "school") applies also to colleges and universities — suggests that if the parties desired to condition their obligation to pay college expenses on the private status of the institution, they would have so stated in the second sentence.
But Ivan argues the 1992 handwritten marital settlement agreement, which was incorporated with revisions into the 1993 judgment, memorializes the parties' true intent. The 1992 handwritten stipulation for judgment provides: "Both parties agree to share the educational expenses of the minor child thru [sic] private school and college or university. The college expenses shall be limited to four years and are contingent upon the child attending full time and maintaining a 'C' or better grade average." Ivan asserts Nancy's counsel "unilaterally" added the phrases "any and all" (as to educational expenses) and "primary and secondary" (as to private school) to the 1993 judgment's educational expenses provision. But the stipulated judgment form (containing the handwritten 1992 agreement) prominently states at the outset: "A stipulation for judgment does not replace the formal, typed Judgment." Ivan never moved to set aside the formal, typed 1993 judgment. In any case, the amendments purportedly made by Nancy's counsel do not affect our decision; we interpret both the 1992 agreement and the 1993 judgment to require each party to pay one-half of their daughter's expenses at a public university.
As a practical matter concerning the purported "private" university requirement, Ivan argues "[i]t would make no sense to offer to pay for a public school education, especially in the primary and secondary years because that is provided free of charge." Obviously, however, a public university education is not free.
For several reasons, the educational expenses provision in the 1996 move-away order does not change our conclusion. First, that provision refers to education at a Catholic "school" and consultation with Ivan regarding "schools," thereby creating an ambiguity as to whether the provision applies to colleges and universities. Second, the provision, by its terms, does not purport to affect each party's obligation to pay one-half of their daughter's educational expenses. Finally, even if we interpreted the provision to apply to the parties' obligation to pay college expenses, the religious restriction is unenforceable (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 109 [written antenuptial commitment concerning future religious upbringing of children not legally enforceable]; (Zummo v. Zummo (Pa. 1990) 574 A.2d 1130, 1141 ["requirement of a 'substantial threat' of 'physical or mental harm to the child' is applicable to proposed restrictions on a parent's post-divorce parental rights regarding the religious upbringing of his or her children"]) and the consultation requirement is immaterial (Brown v. Grimes (2011) 192 Cal.App.4th 265, 278 [materiality of partial breach depends on its importance or seriousness and probability of injured party getting substantial performance]; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 852, p. 939 ["After considerable performance, a slight breach that does not go 'to the root' of the contract will not justify termination"].) It is undisputed that the parties' daughter attended Catholic schools through high school and that Nancy consulted with Ivan on the choice of schools.
"Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact." (Brown v. Grimes, supra, 192 Cal.App.4th 265, 277.) The court's written December 8, 2010 ruling did not address the 1996 move-away order's consultation requirement. But at the hearing on Ivan's motion for reconsideration of the court's December 8, 2010 order, the court stated it considered the issue and "spent a good deal of time thinking about this [and] researching it."
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Nancy argues this appeal is frivolous and sanctionable. "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) "Here, it cannot be said that 'any reasonable person would agree that [Ivan's position] is totally and completely devoid of merit. . . .'" (Id. at p. 651.) Moreover, Nancy failed to file a timely separate motion for sanctions with a supporting declaration as required by California Rules of Court, rule 8.276(b). The request for an award of sanctions is denied.
DISPOSITION
The court's order requiring Ivan to pay one-half of the educational expenses of the parties' daughter at the University of North Carolina, plus interest, is affirmed.
Nancy is entitled to her costs on appeal.
IKOLA, J. WE CONCUR: O'LEARY, ACTING P. J. FYBEL, J.