Marriage of Hawley
Filed 7/6/12
Marriage of Hawley CA4/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re the
Marriage of SUSAN MARIE and LEE GARTH HAWLEY.
SUSAN MARIE
HAWLEY,
Appellant,
v.
JON CHARLES
HAWLEY, as Personal Representative, etc., et al.,
Respondents.
G046082
(Super. Ct. No. D246381)
O P I N I O N
Appeal
from a postjudgment order of the Superior Court of
County, Theodore R. Howard, Judge. Reversed and remanded with directions.
Law
Offices of J. Cranor Richtor and J. Cranor Richter for Appellant.
Law
Offices of Michael S. Magnuson and Michael S. Magnuson for Respondents.
* * *
Introduction
The judgment dissolving the marriage of Susan Marie Hawley and Lee
Garth Hawley found their residence to be community property, and ordered that
Susan receive half the proceeds of the sale of the residence, less costs of
sale and an existing encumbrance.
name="_ftnref1" title="">[1] Although the judgment directed Susan and Lee
to cooperate in listing and selling the residence “forthwith,†Lee continued to
live in the residence for 21 more years.
When he finally sold the residence, he did not provide any portion of
the proceeds of the sale to Susan. The
trial court denied Susan’s request for a writ of execution, because the
judgment was not a “money judgment†as defined by Code of Civil Procedure
section 680.270.
title="">[2]
We reverse the trial court’s order with directions. Although the judgment of dissolution of Susan
and Lee’s marriage did not specify an amount of money owed by Lee to Susan,
such an amount can be ascertained. As
explained post, we direct the trial
court on remand to conduct an evidentiary hearing to determine on what date
Susan’s share of the community property should be calculated, to consider all
legal and equitable arguments by both parties, to calculate Susan’s community
property interest, and to issue the writ, if appropriate. For the reasons we explain, these issues
should be considered by the trial court in the first instance.
Statement of Facts and Procedural
History
Susan and Lee married in 1974, and separated in 1978. The marriage was dissolved by a judgment
filed on October
10, 1985 (the 1985 judgment). The 1985 judgment found that the family
residence was community property, and awarded one-half of the net proceeds of
the sale of the residence to Susan, and the other half to Lee.
In relevant part, the 1985 judgment provided the following regarding
the residence: “The family residence
located at 231 East Leadora, Glendora, California, shall be placed on the market for sale forthwith. Both parties shall cooperate in the listing,
showing, closing and selling of said residence.
Husband shall have exclusive use and possession of the residence until
the close of escrow following its sale.
Husband shall pay all encumbrances on said residence as same become due
and payable, and shall hold Wife free and harmless therefrom. Husband shall maintain the family residence
in a habitable condition. In the event
Husband refuses to promptly list the residence for sale and cooperate in the
sale thereof, Wife shall have exclusive control of the sale, said control to
include procuring a listing agent, determining price, accepting or rejecting
offers and making counter-offers.
Husband’s consent need not be obtained as long as Wife has full control
of the sale. [¶] At the time of the
separation of the parties, the encumbrance on the house did not exceed the sum
of $30,000. Therefore, upon sale of the
residence, Wife shall receive an amount equal to one-half of the selling price
less costs of sale, less $30,000. . . . In the event there
is not enough equity in the family [residence] to satisfy the hereinabove
described sum to which Wife is entitled, she shall be deemed to have a judgment
against Husband for that sum less any amount which may be received by her
pursuant to the sale. The court
specifically reserves jurisdiction over the sale of the family residence and
distribution of proceeds thereof.â€
There is no evidence Susan ever exercised her right under the
1985 judgment to control a sale of the residence if Lee did not sell it
“forthwith.†Lee continued to live in
the residence for the next 21 years, finally selling it to a third party in
October 2006. Lee did not provide any
portion of the sales proceeds to Susan.
Susan claimed she learned about the sale of the property in January
2009.
In March 2011, Susan filed a motion for an order directing issuance
of a writ of execution.
name="_ftnref3" title="">[3] In her motion, Susan also asked the trial
court to determine the amount due to her.
The court denied the motion, and Susan filed a timely notice of appeal.
Discussion
Whether the 1985 judgment was a money judgment is a legal question
we review de novo. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)
Susan does not dispute that the 1985 judgment does not specify a set
amount of money to be paid to her by Lee.
She contends, however, that “only the requirement that money be paid†is
necessary to constitute a money judgment.
A money judgment is “that part of a judgment that requires the
payment of money.†(Code Civ. Proc.,
§ 680.270.) A money judgment “must
be stated with certainty and should specify the amount.†(Kittle
v. Lang (1951) 107 Cal.App.2d 604, 612; see Wallace v. Wallace (1931) 111 Cal.App. 500, 506;
92.)
“To be enforceable by
execution, a money judgment must specify with certainty the amount for which it
is rendered, or if the amount is not stated, it must be ascertainable from the
record. Where a judgment, as originally
drawn, fails either to fix a dollar amount for the amount of damages or to set
forth the method by which the exact amount can be determined, the judgment is
patently ineffective to allow the plaintiff to secure a writ of execution.†(30 Am.Jur.2d (2005) Executions and
Enforcement of Judgments, § 56, p. 94, fns. omitted.) This general principle is the law of
California. In Harte v. County of Los Angeles (1978) 87 Cal.App.3d 419, 420,
the appellate court held that a judgment ordering a former employee be
reinstated “‘with full back pay, rights, privileges and benefits from the date
of her wrongful reduction, including but not limited to seniority, retirement
and pension benefits,’†was “patently . . . ineffective to
allow plaintiff to secure a writ of execution.â€
Susan relies on Brown v. Brown
(1971) 22 Cal.App.3d 82, and In re
Marriage of Farner (1989) 216 Cal.App.3d 1370, in support of her
argument that the 1985 judgment is a money judgment. In Brown
v. Brown, supra, 22 Cal.App.3d at
page 83, Beverly Brown and Leon Brown’s divorce judgment provided that
their stock in a particular company “‘shall be divided equally.’†When Beverly sold the stock, she paid Leon
less than one-tenth the money she received.
(Ibid.) Beverly appealed from the trial court’s order
to pay Leon a full one-half of the proceeds from the stock sale, arguing in
part that “the original judgment contained no provision for enforcement of the
order directing division of the . . . stock.†(Ibid.) The appellate court affirmed the trial
court’s order, holding that “[e]very court has power to compel obedience to its
judgments and orders [citations], and a court of equity retains inherent
jurisdiction to oversee and enforce execution of its decrees.†(Id.
at p. 84.)
In In re Marriage of Farner,
supra, 216 Cal.App.3d at
pages 1374-1375, the trial court issued an order granting Shirley Farner a
43.75 percent community property interest in the military retirement pay of her
ex-husband, Lyle Farner. Shirley sought
and obtained a writ of execution for her share of Lyle’s retirement pay from
the date of their separation to the date on which Shirley began receiving her
share directly from the United States Air Force. (Id.
at p. 1373.) Lyle appealed from the
denial of his motion to quash the writ of execution, arguing the original order
granting Shirley a percentage interest in his retirement pay was not a money
judgment, and no writ of execution could issue to enforce it. (Id.
at pp. 1372-1373.) The appellate court
concluded, “the aspect of the judgment affording Mrs. Farner a retroactive
right to a portion of Mr. Farner’s retirement pay in substance is a money
judgment.†(Id. at p. 1374.)
The 1985 judgment does not specify the dollar amount Lee was to pay
to Susan. However, that amount can be
ascertained in the same way the courts did in Brown v. Brown and In re
Marriage of Farner. The method of
calculation is set forth in the 1985 judgment.
However, based on the limited factual record before us and the issues
actually briefed by the parties, we cannot determine the amount, if any, that
Susan is owed. In its simplest form, the
1985 judgment awards Susan half the proceeds “upon sale of the residence,†less
the costs of sale, and less $30,000 for the preexisting encumbrance on the
residence, plus a $3,695 equalizing payment from Lee to Susan. The sales price of the residence and the
costs of sale can be calculated, and simple math then applied to ascertain the
amount to which Susan was entitled. The
amount of the 1985 judgment was reasonably ascertainable, and the trial court
erred in refusing to determine the amount, if any, of Susan’s community
property interest.
We also note that the same questions about calculation would arise
even if the residence had been sold “forthwith†in 1985. A mathematical calculation would still be
required even at that time. To hold that
an amount is not ascertainable would make this judgment illusory.
our conclusion that the trial court could have determined the amount, if any,
of Susan’s interest. Ethel Bonner and
James Bonner owned real property as joint tenants, on which they filed a
homestead declaration. (
court awarded the real property to Ethel, and ordered her to make an equalizing
payment of $5,000 to James for his share of the community property; the payment
was to be made when Ethel remarried or sold the property, but no later than
three years after the date of the order dividing the parties’ community
property. (Id. at p. 159.) James
applied for a writ of execution after Ethel failed to make the equalizing
payment for more than five years after the court ordered the division of the
property. (Ibid.) The appellate court
concluded the trial court retained jurisdiction to make further orders
necessary to effectuate its judgment, including the power to direct a sale of
the homesteaded property: “The court’s
power to direct a sale of the homesteaded community property was not, moreover,
exhausted by its disposition of the matter in the interlocutory judgment. That decree clearly indicated the court’s
intent that [James] receive $5,000 ‘as and for his community interest in the
said real property.’ [James] was not
thereby converted to a mere creditor.
Failure of [Ethel] to sell the property within three years as the
judgment contemplated, or otherwise arrange for [James] to receive his share,
justified the court in making a further order to prevent frustration of the
intended division. If no such further
order were made and the property remained in [Ethel]’s hands exempt from
execution, the net result would be to award virtually all the community property
to [Ethel]. [¶] To the extent that a
judgment of dissolution is not self-executing in respect of any division of
property therein ordered, the court retains jurisdiction to make such further
orders as are appropriate to compel obedience to its judgment.†(Id.
at p. 165.)
On remand, the trial court shall conduct an evidentiary hearing, and
consider such testimony and documentary
evidence as is necessary to determine, among other things, the date on
which the value of the property is to be calculated. If the trial court concludes the property
shall be valued as of the date of the judgment of dissolution, it shall, in
addition to calculating Susan’s community property interest, also calculate the
net present value of that interest. If
the trial court concludes the property should be valued as of the date Lee sold
the property in 2006, it shall make the necessary calculations to decide what
credits and offsets, if any, may apply to the 2006 value of the property. In either case, the trial court shall fully
consider all legal and equitable arguments affecting the parties’ respective
interests in the property and the enforceability of the judgment.
We note that counsel for the parties participated in a lively oral
argument before this court, and responded to this court’s questions regarding
many of the issues mentioned, ante. Nothing said during that argument should be
viewed as a concession by any party, nor may it otherwise limit or impair the
parties’ rights to raise any legal or equitable arguments in the trial
court. In addition, nothing said by any
of the justices in the course of oral argument shall be considered as an
opinion of this court or of any justice; our opinion is solely expressed
herein.
Disposition
The postjudgment order is reversed, and the matter is remanded to
the trial court with directions as set forth herein. Appellant to recover costs on appeal.
FYBEL,
J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
To avoid confusion, we will use the first names of the parties to this case,
and to the other cases cited in this opinion; we intend no disrespect. (In re
Marriage of Dietz (2009) 176 Cal.App.4th 387, 390, fn. 1.)
“‘Money judgment’
means that part of a judgment that requires the payment of money.†(Code Civ. Proc., § 680.270.)
