Opinion
G052982
07-28-2017
In re Marriage of PATRICIA L. and GARY D. WILLETT. PATRICIA L. WILLETT, Appellant, v. GARY D. WILLETT, Respondent.
Hassan Gorguinpour for Appellant. Peter J. Porter 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D334146) OPINION Appeal from an order of the Superior Court of Orange County, Sherri L. Honer, Judge. Affirmed without prejudice to appellant's unadjudicated request for attorney fees. Hassan Gorguinpour for Appellant. Peter J. Porter for Respondent.
Patricia L. Willett and Gary D. Willett were divorced in 1994. Pursuant to the parties' stipulation, the family court ruled their community property home would be listed for sale in February 1995, with the proceeds divided equally. However, neither party made any effort to enforce that ruling for 20 years, during which Patricia continued residing in the home. Finally, in May 2015, Gary filed a motion seeking authorization to unilaterally list the property for sale in accordance with the 20 year old ruling.
The family court granted Gary's motion, and Patricia appeals. She contends the court erred by: (1) failing to hold an evidentiary hearing; (2) rejecting her claim that laches barred Gary's enforcement of the sale provision; (3) purporting to enforce an expired judgment; (4) failing to assign a value to the home when it granted Patricia a brief delay so she could explore buying out Gary's interest before the home would be listed for sale; (5) failing to rule on her right to reimbursement for the two decades of mortgage payments she made and other expenses she had paid while living in the home; and (6) failing to rule on Patricia's request for attorney fees.
We affirm, without prejudice to Patricia's right to renew her request for an award of attorney fees in the trial court. As that issue was not ruled upon in the trial court, it is not before us on appeal.
We find no merit in Patricia's other contentions, most of which were not raised in the family court. Patricia's sole argument below was that Gary's demand to sell the home after a delay of 20 years was barred by laches. There was no error in the trial court's rejection of that argument.
We grant Patricia's unopposed motion to take judicial notice of the court clerk's certificate explaining the absence of certain documents. (Evid. Code 452.)
FACTS
The parties were granted a status only divorce in 1994. They have two children, who were then aged eight and five. In November 1994, the parties entered into a Stipulation and Order for Judgment on Reserved Issues. The stipulation covered child custody and expense issues, as well as the division of marital property. That stipulation was then incorporated into a form entitled "Findings And Order After Hearing" (Findings and Order).
With respect to the marital home, the Findings and Order provided "the community residence shall be listed for sale commencing 2-1-95. Upon the conclusion of escrow, the parties shall divide the net proceeds equally. . . . In the event the parties are unable to agree to a listing agent or sales price, either may request ex parte relief from this court. The court shall reserve jurisdiction over this issue."
The Findings and Order also stated, "in exchange for [Gary's] waiver of Jeffries/Watts charges, equal division or personal property, waiver of retroactive reduction of support and waiver of contributory share of the 730 psychological examination expert's fee, both parties knowingly and intelligently waive spousal support from each other. The court shall not reserve jurisdiction over this issue."
This reference is to In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, and In re Marriage of Watts (1985) 171 Cal.App.3d 366, both of which confirm the family court's "'authority to reimburse the community for the value of [a party's] exclusive use of the family residence . . . between the date of separation and the date [on which the community itself no longer held an interest in the residence, which, in this case, was the date on which the marital home was sold].'" (In re Marriage of Jeffries, supra, 228 Cal.App.3d at p. 552.)
Thereafter, neither party made any significant effort to list the home for sale. Patricia freely admits she never wanted the sale order enforced throughout the long delay, and she does not claim she ever tried to make it happen. Gary claims he tried to follow through with the planned sale in 1995, but Patricia refused to cooperate. He explains he "did not press the sale of the family residence at the time as [Patricia] was living there as were our children."
However, by 2015, the children were fully grown (although one continued to reside with Patricia in the home), and Gary was "in need of my portion of the net proceeds from the sale of the house." He asked Patricia to cooperate in the sale of the home, but she refused.
Consequently, Gary filed a motion with the court, seeking an order allowing him to sell the family residence. Patricia responded with a motion asking the court to hold a trial on the bifurcated issue of whether the home should be valued at its fair market value in 1995—presumably for purposes of determining the value of Gary's share in it—or at present. Patricia's response included a request for an award of attorney fees.
In her declaration supporting the bifurcation motion, Patricia claimed the court ruling ordering the house be listed for sale was not a judgment or "permanent" order, but merely a "temporary" order. She claimed she had been "pressured and bullied" into agreeing to it, and had filed a motion to set it aside in June 1995. She acknowledged her motion to set aside the order had been denied.
Patricia also informed the court she had lived in the home continuously since the parties separated, had maintained it and "paid off the liens and mortgages." She declared that when she had agreed to sell the home in 1995, it was worth approximately $141,000, with a mortgage balance of approximately $95,000. And she estimated that as of 2015, the home was worth $436,000, with a mortgage balance of approximately $25,000. In her income and expense declaration, Patricia disclosed that she made the mortgage payment of approximately $800 per month.
Patricia does not specify what "liens and mortgages" she is referring to, other than the one mortgage already on the house when the court ordered it sold in 1994. She states that mortgage still exists, albeit with a reduced balance. However, we note the court's 1995 ruling gave Patricia's counsel the right to record a lien against the home to secure payment of the fees Patricia owed to her.
At the hearing on the bifurcation motion, the court asked Patricia's counsel to clarify "what are we going to be litigating during the trial . . . whether the Findings and Orders After Hearing should be enforced as a final judgment?" Counsel answered "Yes." The family court granted Patricia's motion to bifurcate, stating the trial would be focused on the issue of "whether this Findings and Order[] was intended to be a final order for--a final decision by the parties, and whether, . . . based on equity, the court should view it that way, given the passage of time."
The court then suggested that if it decided "there is not going to be a different valuation date, that we are going to do it as of now, then the court would be looking at, what has she contributed to the party, you know, is she entitled to any reimbursement for that period of time."
The court also noted that the determination of whether the Findings and Order were intended to be a temporary order, rather than a judgment, would not require much discovery, and that "the only witnesses are really going to be the parties" with the testimony focusing on "what were the parties intend[ing] for this to be." Patricia's counsel then requested the court to schedule the trial far enough in the future to allow the parties to brief the issue in advance and give the court sufficient time to review their briefs. The court agreed.
However, when Patricia filed her brief, she abandoned her original claim that the Findings and Order had not been intended to operate as a judgment. She explained that she was finally able to review documents in the possession of her prior attorney, and based on those documents, she was convinced the parties had intended the Findings and Order to operate as a judgment. She then amended her response to Gary's motion, asking the court to "either vacate enforcement of the orders granting [Gary] a one-half interest in the residence based on a defense of laches, or in the alternative value the real property residence at the time of [the originally scheduled] Trial. . . ."
In support of her laches claim, Patricia argued "it is inequitable for [Gary] to wait over 20 years to enforce the orders here. [Gary] would gain a huge 'windfall' as [she had] paid down the mortgage, paid the real property taxes, insurance and maintained the property for over 21 years." She also claimed that Gary's waiver of "Jeffries/Watts charges" as part of the Findings and Order meant that he had waived any claim for recovery of the home's rental value during the 20 years she had continued to occupy it in the wake of the court-ordered sale date. However, Patricia made no claim that the unspecified amounts she had paid toward the home's mortgage, property taxes, insurance and maintenance over the 20 years had actually exceeded its rental value.
In his brief, Gary agreed the Findings and Order "must be deemed a [j]udgment" because the matter had been set for trial when it was entered. And he asserted that if it was deemed a judgment, the family court had no authority to do anything other than enforce it in accordance with its terms, i.e., requiring the property to be listed for sale, with the net proceeds from that sale divided between the parties.
On the date set for the hearing, the court issued a tentative ruling stating Patricia's request for an alternative valuation date on the property would be denied, and Gary's request for an order allowing him to sell the house and divide the proceeds in accordance with 1994 order would be granted. The tentative ruling explained the court was merely enforcing the original 1994 order by its terms, noting Patricia "seems to be adding a term not included in the order." The tentative ruling also rejected Patricia's assertion that Gary would be receiving a "windfall," noting that both parties would benefit equally from the home's appreciation.
At the hearing, the court clarified that it would "hold off on ordering the sale of the residence . . . in the event that [Patricia] wished to buy out [Gary] and keep the house." Patricia's counsel suggested she be given 60 days before the house was listed for sale, to pursue that option. Gary's counsel did not oppose that request, and the court granted it.
Patricia's counsel then pointed out her laches defense had not been addressed in the court's tentative ruling, and asked the court to address it orally. The court responded that it had found no inequity because Patricia had been living in the home for 20 years without paying any rent. The court then stated its tentative order would become the final order, and the hearing concluded.
DISCUSSION
I. The Lack of an Evidentiary Hearing
Patricia first argues the family court erred by failing to hold an evidentiary hearing on the motion, after indicating it would. She relies on Family Code section 217, subdivision (a), which states: "At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties."
However, the issue upon which the court contemplated taking evidence was the bifurcated issue of whether the November 1994 Findings and Orders, which required the sale of the home, was merely a temporary order, or was intended to operate as a final judgment. Resolving that issue would be key to determining how the court would proceed on Gary's request to enforce the sale provision. Although both the court and the parties anticipated the parties would ultimately testify about "what . . . the parties intended for this to be," that evidence was rendered moot when Patricia filed a brief acknowledging that her review of additional documents held by her prior counsel had convinced her the Findings and Order were indeed a judgment.
Patricia consequently withdrew her original contention that the 1994 order mandating the sale of the home, with proceeds divided between the parties, was merely a temporary order. And because of Patricia's change in position, there was no need for the family court to take evidence concerning the status of the order for sale of the home. Consequently, we find no error in its failure to do so. II. Patricia's Laches Claim
Patricia next argues the court erred by rejecting her claim that laches barred Gary's enforcement of the home sale provision. Her argument, which is largely undermined by her own concessions on appeal, fails as a matter of law.
"Laches may bar relief in equity to those who neglect their rights, where such neglect operates to the detriment of others." (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1417.) But "unreasonable delay by the plaintiff is not sufficient to establish laches. There must also be prejudice to the defendant resulting from the delay or acquiescence by the plaintiff." (Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361, 1368, fn. omitted.) Moreover, '"[p]rejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue.' [Citation.]" (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.)" (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1050.)
There are several fatal flaws in Patricia's laches argument. Most significantly, she ignores the fact the stipulated judgment, requiring the sale of the marital home, bound both parties equally. It imposed no particular right or burden on Gary, as opposed to Patricia, to initiate the sale of their marital home. Thus, Patricia bears equal responsibility with Gary for any consequence of a delayed sale, and whatever detriment she may have suffered from the delay is no more his fault than her own.
Thus, while there is a dispute of fact as to whether (1) Gary expressed his desire to sell the property in accordance with the deadline set forth in the judgment, (2) Patricia resisted selling on the basis that the couple's minor children were residing there with her, and (3) Gary reluctantly acquiesced to the delay on that same basis, that dispute is immaterial. What is undisputed that neither party actually sought to enforce the sale provision, and thus both acquiesced in the delay of that enforcement. There is simply no basis in equity for Patricia to cast blame on Gary for failing to do what she herself made no effort to do.
Further, Patricia's suggestion that it was primarily Gary's obligation to "enforce" the sale order, rather than hers, implicitly incorporates the second fatal flaw in her laches argument: i.e. her concession that it was Gary who would primarily benefit from selling the home, while she—the spouse in residence—benefitted from delaying that sale as long as possible. Indeed, Patricia explicitly concedes this point in her brief, when she states "[s]he does not want the order enforced now, and did not want it enforced throughout the long delay." (Italics added.) Given that she had exclusive use of the home, while making a mortgage payment of approximately $800 per month, Patricia's desire to avoid enforcement of the order is understandable. But her concession cannot be reconciled with the core assertion underlying her laches claim: i.e., that achieving the delay she championed somehow entitles her to additional equitable relief. It does not.
On a more concrete level, Patricia claims that allowing Gary to sell the home now, and to share equally in the sale proceeds, is unfair because it means she will have paid "thousands of dollars reducing the home's mortgage, only to have the court award half of that money to her ex-husband." But of course, as we have already pointed out, Patricia did this voluntarily, while also maintaining sole occupancy of the home for that same period. She has made no showing this voluntary course of action constituted a detriment to her.
Patricia also suggests she has been prejudiced by the delay in enforcing the sale provision because she is now so much older—and closer to retirement—that forcing her to sell her home leaves her with fewer options to prepare for retirement than if she had sold the home back in 1995.
But that assertion is not merely conclusory, it fails to even specify what conclusions it relies upon. Patricia does not even suggest what she might have done differently had she been forced to sell the home in 1995, let alone explain how her different choices would have left her in a better position to face retirement than the one she now finds herself in. Thus, all we can discern is that if Gary had enforced the sale provision back then, Patricia would have had to find another place to live for the past two decades, and she would not now be in a position to share in the home's significantly increased value.
Finally, Patricia points out that the lengthy delay caused "practical litigation problems" because some of the pertinent documents filed in 1994 could not be located. But she fails to explain how that prejudiced her as compared to Gary. And again, she fails to explain why Gary, but not she, should be held responsible for that delay.
Ultimately, having conceded she benefitted from the 20 year delay in selling the home, Patricia seems to be suggesting that the real harm inflicted upon her by Gary's proposed sale of the home is that she will not be allowed to continue living there forever, as she apparently hoped to do. But Patricia never had that right, so her loss of it does not qualify as cognizable harm. III. Claimed Expiration of the Judgment
Patricia next contends that because the stipulated order requiring the house be listed for sale in February 1995 was a judgment, it was required to be renewed every 10 years, or it expired. In making this argument, she points out that for a six year period, between 2000 and 2006, Family Code section 291 specified that "[a] judgment or order for possession or sale of property made or entered pursuant to this code is subject to the period of enforceability and the procedure for renewal provided by [the Code of Civil Procedure]." (Former Family Code § 291, enacted, Stats. 2000, ch. 808, §§ 25, 132, and repealed Stats. 2006, ch. 86, § 4.)
And although Patricia acknowledges the Legislature's 2006 repeal and replacement of Family Code section 291 dispensed with that renewal requirement for judgments and orders in family law cases, she nonetheless assumes that (1) its initial enactment in 2000 would have made the requirement retroactively applicable to the stipulated sale order entered in this case in 1994, and (2) the 10-year renewal period would have also retroactively commenced in 1999. She consequently concludes this sale order would have then "expired" 10 years hence, in 2004, during the period in which the renewal/expiration provision remained in effect for family law judgments. And based on that claimed expiration, Patricia asserts Gary was precluded from seeking a court order for sale of the house in 2015.
The replacement version of Family Code section 291, enacted in 2006, explicitly dispenses with the expiration and renewal provisions of the prior version. The statute specifies in pertinent part that "A money judgment or judgment for possession or sale of property that is made or entered under this code . . . is enforceable until paid in full or otherwise satisfied" (Fam. Code, § 291, subd. (a)) and "[f]ailure to renew a judgment described in this section has no effect on the enforceability of the judgment." (Fam. Code, § 291, subd. (b).) --------
There are several problems with Patricia's argument. Most significant, she waived the argument by failing to assert it at the family court level. "'[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.'" (Newton v. (2003) 110 Cal.App.4th 1, 11.) "Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider." (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.)
Additionally, Patricia waives the contention on appeal by failing to support it with reasoned argument and citations to authority. "It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and '"'all intendments and presumptions are indulged in favor of its correctness.'" [Citation.]' [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Specifically, Patricia has failed to explain or support her assumption that a family court judgment or order entered in 1994 would be retroactively governed by a statutory expiration provision enacted six years later, in 2000. Moreover, even if we indulged that assumption for the sake of argument, Patricia also fails to cite any authority supporting her additional assumption that the retroactive application would also retroactively commence the 10-year period within which the judgment or order is required to be renewed. Patricia's failure to support those implied assertions with explicit analysis and authority constitutes a waiver.
Moreover, having failed to directly address and support those crucial assumptions, Patricia also fails to explain how such a rule could possibly comport with due process. Following her logic, we would also have to conclude that a family court order or judgment for possession or sale of property that had been entered 9 years and 11 months before Family Code section 291 became effective in 2000, would thereafter have to have been either enforced or renewed within one month to avoid expiration. And of course, under Patricia's theory, any extant family court orders and judgments for possession or sale of property that were entered 10 years or more before Family Code section 291 became effective, would presumably have been rendered immediately unenforceable when it did. We decline to support such a conclusion.
And finally, even if Patricia were correct in asserting the sale provision amounted to a judgment that "expired" in 2004, 10 years after it was entered, she fails to explain why that would prevent Gary from seeking an order compelling a sale of the home in 2014. Patricia herself argues that an expired judgment "los[es] all effect." And if that is what occurred here, it would mean the house that was subject to the expired judgment—which the parties have long since stipulated was a community property asset—remains undivided. Certainly, nothing in the expiration of the judgment would transform that house into Patricia's separate property.
Finally, as Patricia acknowledges, the court "reserved jurisdiction over the division of the home." Consequently, even assuming the court's 1994 order requiring the house be listed for sale in February 1995 later expired for lack of enforcement, the court retained jurisdiction to divide that asset in 2015. IV. Failure to Value the Home for Purposes of Buyout
Patricia also contends the court erred by giving her a limited-time option to buy out Gary's interest in the home, without first determining its value. Again, we are unpersuaded.
First, Patricia waived this contention because she offered no objection at trial. When Gary's counsel suggested he was willing to "exclude her from the listing agreement" giving her 30 days to arrange financing if she wanted to buyout Gary's share, her counsel responded that she "would ask for at least 60 days." The court granted her a delay of 60 days before the home was listed for sale. At no point did she argue the court would then be obligated to first set a value for the home.
We reject her contention on the merits as well. According to Patricia, the court's order effectively amounted to an order that the house be divided using the "asset distribution or cash out" method, rather than by the "sale and division of proceeds" method specified in the 1995 judgment. And as she points out, when the court opts for that method of division, it "takes upon itself 'the responsibility to fix the value of assets and liabilities in order to accomplish an equal division.'" (Quoting In re Marriage of Cream (1993) 13 Cal.App.4th 81, 88.)
But as Patricia herself acknowledges, the original judgment called for the house to be sold and the proceeds divided, and that is the method of asset division Gary sought to enforce in his motion. Thus, when the court granted Gary's motion, the remedy it ordered was a sale of the home and division of proceeds. The additional provision, delaying the listing date for 60 days, was merely an accommodation for Patricia's benefit, so she could explore her options for purchasing the home herself before any third party was given the opportunity to do so. It did not alter the basic remedy. V. Failure to Rule on Patricia's Right to Reimbursement of Mortgage Payments
Patricia also claims the trial court erred by failing to rule on her request to be reimbursed for the "decades of mortgage and other payments she made toward the residence." But Patricia never asserted such a request. Instead, she merely relied on the fact of those payments in support of her claim that laches precluded Gary from enforcing the order for sale of the home. As we have already explained, the trial court did not err in rejecting that laches defense. VI. Attorney Fees
Patricia's final assertion is that the trial court erred by failing to rule on her request for attorney fees. Although she did include an request for award of fees in her initial response to Gary's motion, she made no further reference to the issue and the court's order granting Gary's motion makes no reference to it either.
Gary argues the court's failure to affirmatively award fees to Patricia implies it intended to deny her request. However, there is nothing in the record that suggests the court intended to rule on the request. Neither the court's tentative ruling nor its minute order reflect that the court understood the issue of attorney fees was before it when it granted Gary's motion.
Under these circumstances, we conclude the court's order appealed from not include any ruling on Patricia's request for attorney fees, and thus our affirmance of the order is without prejudice to Patricia's right to pursue that request in the trial court if she chooses.
DISPOSITION
The order is affirmed, without prejudice to Patricia's right to pursue her claim for an award of attorney fees in the trial court. Gary is entitled to his costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. FYBEL, J.