In re Marriage of Gonzalez

Filed 1/30/09 In re Marriage of Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed in part and reversed in part.

Merwin Auslander for Appellant.

Anna C. Brace for Respondent.

* * *

Introduction

A judgment dissolving the marriage of Amanda I. and Carlos R. Gonzalez was entered on April 25, 1990. (We will refer to Amanda and Carlos by their first names to avoid confusion; we intend no disrespect.) The judgment included a provision permitting Amanda to continue to reside in the family residence for five years. After that time, the house was to be sold, with Amanda and Carlos splitting the net proceeds. The five‑year mark came and went, and the house was never put up for sale.

In 2006, Carlos sought an order to show cause (OSC) to force a sale of the house, and to recover attorney fees from Amanda. The trial court granted the OSC, and Amanda appealed.

Amanda contends the trial court erred in granting the OSC because the time period during which Carlos could enforce the judgment had expired, and Carlos had not attempted to renew the judgment. We disagree. The judgment contains an explicit provision reserving the trial courts jurisdiction. Family Code section 3809 also reserves the courts jurisdiction over deferred home sale orders; because the judgment contained a deferred home sale order, this statute applies. (All further statutory references are to the Family Code, unless otherwise noted.) The general provision of former section 291, which set a 10‑year limit on enforcement of judgments and orders, is inapplicable for two reasons. First, the trial court retained the discretion not to enforce that 10‑year limit because it would substantially interfere with the parties rights. ( 4, subd. (h).) Second, a more specific statute ( 4502) provides that judgments or orders for supporta category into which a deferred home sale order fallsis exempt from normal requirements that judgments must be renewed.

Amanda also argues the trial courts order must be reversed because the court failed to render a statement of decision. We conclude the trial courts written ruling meets the requirements of a statement of decision. The court was not required to address each of the more than 60 items included in Amandas request for a statement of decision, or to specify which of those requests were burdensome.

The portion of the trial courts order awarding Carlos attorney fees must be reversed. Nothing in the record shows the trial court considered the statutory factors relevant to a need‑based attorney fee award. The order shows no exercise of discretion by the court in determining the amount of the award, and there is no evidence in the record supporting any award.

Finally, Amanda argues that because she refinanced the family residence in 2005, the lender became an indispensible party and should have been joined in this action. We conclude the trial courts order does not necessarily affect the lenders rights, and therefore it was not necessary to name it as a party.

We reverse the trial courts award of attorney fees. In all other respects, we affirm the trial courts order.

Statement of Facts and Procedural History

On October 14, 1986, Amanda filed a petition to dissolve her marriage to Carlos. Amanda and Carlos had two children, then ages six and three. A judgment of dissolution was entered on April 25, 1990.[1] The judgment provided the following with respect to the family residence, located at 2334 Via San Miguel in Aliso Viejo (the property): The family residence . . . shall be transferred to the parties as tenants in common and [Amanda] shall be allowed to remain in residence in said property for a period of five (5) years from August 18, 1987 during which time [Amanda] shall make all payments on said property . . . . [] At the expiration of the foregoing five year period . . . said family residence shall be listed for sale and sold. Upon the sale of said property, the net proceeds shall be divided equally between the parties with the sum of $1,000 being paid from [Amanda]s portion of said net proceeds to [Carlos] for reimbursement of his separate property interest in said property.

On April 21, 2006, Carlos filed an OSC asking the court: (1) to set aside a deed recorded on September 6, 2005; (2) for a finding Amanda breached her fiduciary duties by transferring or encumbering the property; (3) for a finding Amanda acted with fraud, malice, or oppression (Civ. Code,  3294); (4) to assign the property to Carlos; (5) to order Amanda to provide an accounting for the money she obtained through refinancing the property; (6) to order that the property be sold; and (7) to order Amanda to pay Carloss attorney fees ( 1101, subds. (g) & (h), 2030, 2032). The trial court conducted an evidentiary hearing on Carloss OSC on multiple dates between January and October 2007. 

Amanda submitted a request for a statement of decision on January 25, 2007, and again on May 24, 2007. On October 16, 2007, Amanda submitted an amended request for a statement of decision, which identified more than 60 specific factual and legal issues. The trial court issued a written ruling on December 21, 2007. On February 5, 2008, Amanda moved for clarification of the courts ruling, pursuant to Code of Civil Procedure section 634, asking the court for further explanation of its ruling with respect to Family Code sections 4 and 291. On March 7, 2008, the court denied Amandas motion for clarification, and filed a formal written order. On March 11, Amanda filed a notice of appeal.[2]

Discussion

I.

Jurisdiction/Statute of Limitations

Amanda argues the trial court lacked jurisdiction to consider Carloss OSC because the statute of limitations to enforce the judgment expired before the OSC was filed.

A. Jurisdiction over the deferred home sale order was reserved by the language of the judgment, and by statute.

The judgment itself reserves jurisdiction to make other and further orders necessary to carry out this judgment. No time limit is included in this reservation of jurisdiction. Amanda failed to address the judgments language in her arguments to the trial court or on appeal.

Additionally, the judgment constitutes a deferred sale of home order, which is defined as an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child. ( 3800, subd. (b).) [F]amily home awards are meant to benefit minor children by providing them with a stable home environment. (In re Marriage of Katz (1988) 201 Cal.App.3d 1029, 1037.)

By statute, the trial court retains jurisdiction over any issues relating to a deferred home sale order. Section 3809 provides: In making an order pursuant to this chapter, the court shall reserve jurisdiction to determine any issues that arise with respect to the deferred sale of home order including, but not limited to, the maintenance of the home and the tax consequences to each party.[3] Section 3809 is applicable regardless of whether the deferred sale of home order is made before or after January 1, 1989. ( 3810.) Therefore, the trial court maintained jurisdiction over issues relating to the ultimate sale of the property. Amanda did not address section 3809 in her arguments to the trial court or on appeal.

B. The deferred home sale order is a form of child support, and is not subject to section 291.

Amandas argument centers on section 291. As originally enacted, section 291 did not place a limit on the enforceability of judgments and orders entered pursuant to the Family Code.[4] In 2000, section 291 was amended; after the effective date of the amendmentSeptember 28, 2000a judgment or order for possession or sale of property was only enforceable for a period of 10 years after entry. (Stats. 2000, ch. 808,  25, 132.) Section 291 was again amended in 2006. (Stats. 2006, ch. 86,  4.) The current version of section 291 reads, in relevant part, as follows: (a) A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied. [] (b) A judgment described in this section is exempt from any requirement that a judgment be renewed. Failure to renew a judgment described in this section has no effect on the enforceability of the judgment. [] . . . [] (d) In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment that is owed to the state.

Amanda argues Carlos was barred from enforcing the judgment after April 25, 2000, 10 years after the date of entry of the judgment, pursuant to former section 291. Amanda argues the 2006 amendment to section 291 could not save Carloss claim, because his ability to enforce the judgment was already time‑barred.

Subdivisions (c) and (d) of section 4 read as follows: (c) Subject to the limitations provided in this section, the new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, commencement of a proceeding, making of an order, or taking of an action. [] (d) If a document or paper is filed before the operative date, the contents, execution, and notice thereof are governed by the old law and not by the new law; but subsequent proceedings taken after the operative date concerning the document or paper, including an objection or response, a hearing, an order, or other matter relating thereto is governed by the new law and not by the old law.

However, Amanda fails to consider section 4, subdivision (h), which provides as follows: If a party shows, and the court determines, that application of a particular provision of the new law or of the old law in the manner required by this section or by the new law would substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed before the operative date, the court may, notwithstanding this section or the new law, apply either the new law or the old law to the extent reasonably necessary to mitigate the substantial interference. Under section 4, subdivision (h), the trial court could have determined that the change in the enforceability time periods would substantially interfere with the parties rights, and could therefore have applied the enforceability provisions included in former section 291 before the 2000 amendment.

There is yet another independent ground to uphold the trial courts order. Although section 291 provides the general rule for enforceability of judgments and orders entered pursuant to the provisions of the Family Code, Amanda fails to address section 4502, which deals with the enforceability of support orders. Former section 4502, as enacted in 1993, provided: Notwithstanding any other provision of law, a judgment for child, family, or spousal support, including a judgment for reimbursement or other arrearages, is exempt from any requirement that judgments be renewed. A judgment for child, family, or spousal support, including all lawful interest and penalties computed thereon, is enforceable until paid in full. (Stats. 1993, ch. 219,  143.)[5]

An order deferring the sale of a family residence and awarding temporary possession to the custodial parent is considered a form of child support. (In re Marriage of Katz, supra, 201 Cal.App.3d at p. 1035.) The statute addressing enforcement of support orders therefore controls the enforcement of the judgment in this case, rather than the statute addressing enforcement of judgments and orders under the Family Code generally. (See People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808 [specific statutory provision controls over more general statutory provision]; Lake v. Reed (1997) 16 Cal.4th 448, 464 [same].)

II.

Statement of Decision

Amanda argues the trial court committed reversible error by failing to issue a statement of decision. We conclude the trial courts written ruling on the submitted matter is a statement of decision, in that it explains the factual and legal bases for the courts decision on all principal controverted issues. (Code Civ. Proc,  632.)

The trial court was not required to separately address each of the more than 60 factual and legal issues identified in Amandas amended request for a statement of decision. In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial courts determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining partys favor which would have the effect of countervailing or destroying other findings. [Citation.] A failure to find on an immaterial issue is not error. [Citations.] The trial court need not discuss each question listed in a partys request; all that is required is an explanation of the factual and legal basis of the courts decision regarding the principal controverted issues at trial as are listed in the request. [Citation.] (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)

The trial court did not have an obligation, as Amanda suggests, to identify which of the 60‑plus items on the amended request it was responding to and which it found burdensome.

Amanda addresses two issues in her appellate brief, which were specified in her motion for clarification: (1) the basis for the courts finding that the current version of section 291 was retroactive; and (2) the basis for the courts finding that section 4, subdivision (c) was inapplicable. As discussed ante, sections 291 and 4, subdivision (c) are not relevant to the trial courts ultimate conclusions in this matter. The court did not err in failing to specifically address these issues in the statement of decision.

III.

Attorney Fees

Carlos requested that Amanda pay all of his attorney fees, pursuant to sections 1101, subdivisions (g) and (h), 2030, and 2032. Carloss OSC sought fees [a]ccording to [p]roof.

Pursuant to sections 2030 and 2032, the trial court ordered Amanda to pay $20,000 to Carloss trial counsel. (The court did not award attorney fees pursuant to section 1101, subdivisions (g) and (h).) We review the courts attorney fee order for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)

Sections 2030 and 2032 permit the trial court to order one party to pay some or all of the other partys attorney fees, based on their respective needs and abilities to pay. While no particular language is required in the courts order awarding attorney fees under sections 2030 and 2032, the record, including, but not limited to, the order itself, must reflect an exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 133‑134; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)

The trial courts attorney fee award in this case does not do so. The order does not show the court considered the parties respective needs and abilities to pay ( 270, 2030, subd. (a)), or that the court exercised its discretion in determining $20,000 was a just and reasonable amount for Amanda to pay Carloss attorney ( 2032, subds. (a) & (b)). Nor does the order show that the court considered any of the factors set forth in section 4320.

Nothing in the appellate record provides any factual basis for an award of any amount by the trial court. We find no evidence of any specific request for attorney fees by Carlos, nor any evidence from which the trial court could make an award of attorney fees. Nothing was filed with the trial court discussing the parties relative abilities to pay, nor was anything filed identifying the amount of attorney fees expended by Carlos. The record contains nothing on which an attorney fee award could have been based. Therefore, we reverse the attorney fee award, because the trial court abused its discretion by awarding attorney fees without any basis in the record.

IV.

Lack of Indispensible Party

Amanda argues the trial court should not have proceeded on Carloss OSC because an indispensible party was not before the court. Amanda refinanced the property in 2005 with Midland Mortgage Company. Amanda contends Midland Mortgage was therefore a claimant and a necessary party.

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. (Code Civ. Proc.,  389, subd. (a).) Midland Mortgage would be an indispensible party only if the judgment to be rendered necessarily must affect [its] rights. (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 808.) The trial court was able to render its order without Midland Mortgage being a party. Amanda does not show Midland Mortgages interest in the property as a mortgage holder will be affected in any way by the order, or that she or Carlos will be at a substantial risk of an inconsistent obligation as a result of Midland Mortgages interest in the property.

Disposition

The award of attorney fees to Carlos is reversed. In all other respects, the order is affirmed. In the interests of justice, because each party prevailed in part on this appeal, both parties shall bear their own costs on appeal.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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[1] The judgment, filed April 25, 1990, was entered nunc pro tunc as of August 18, 1987.

[2] An amended order was filed April 17, 2008. Normally, the perfecting of an appeal divests the trial court of jurisdiction over the subject matter of the order or judgment appealed from. (Code Civ. Proc.,  916.) The only amendments to the order are (1) the inclusion of the instrument number of the grant deed being voided, (2) the attachment of the voided grant deed as exhibit A to the order, and (3) the correction of the propertys address. Those changes were corrections of clerical errors necessary to make the order speak the truth, and were therefore within an exception to the general rule. (In re Candelario (1970) 3 Cal.3d 702, 705; Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 883‑884.)

[3] The Family Code was enacted in July 1992, and became operative January 1, 1994. (Stats. 1992, ch. 162,  13.) The language of section 3809 mimics the language of former Civil Code section 4700.10, subdivision (f), which was operative when the judgment in this case was entered. (Stats. 1988, ch. 729,  1; see Cal. Law Revision Com. com., 29E Wests Ann. Fam. Code (2004 ed.) foll.  3809, p. 637 [Section 3809 continues former Civil Code Section 4700.10(f) without substantive change].)

[4] As originally enacted, former section 290 read as follows: A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by such other order as the court in its discretion determines from time to time to be necessary. (Stats. 1992, ch. 162,  10.) Former section 291 read: The lack of diligence for more than the period specified in Chapter 7 (commencing with Section 5100) of Part 5 of Division 9 in seeking enforcement of a judgment or order made, entered, or enforceable pursuant to this code that requires the payment of money shall be considered by the court in determining whether to permit enforcement of the judgment or order under Section 290. (Stats. 1992, ch. 162,  10.)

In her appellate brief, Amanda asserts that when the judgment was entered on April 25, 1990, former section 291 limited the enforceability of judgments for the possession or sale of real property to five years from the date on which a party was entitled to make a claim. This statement is incorrect for two reasons. First, as noted ante, the Family Code did not become operative until January 1, 1994. Second, even when it became operative, former section 291 did not prohibit a party from seeking to enforce a family court judgment after a particular time period; instead, it required the court to consider the partys lack of diligence before permitting the party to enforce the judgment.

[5] This version of section 4502 was in effect until it was repealed in 2006, in the same legislation that enacted the current version of section 291, quoted ante. (Stats. 2006, ch. 86,  4‑6.)