Marriage of Williams
Filed 7/1/13 Marriage of Williams CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re Marriage of CHET and ROBERTA CABOTAGE WILLIAMS.
2d Civil No.
B244201
(Super. Ct.
No. FL030344)
(San
Luis Obispo County)
CHET WILLIAMS,
Appellant,
v.
ROBERTA CABOTAGE,
Respondent.
Chet Williams appeals an
order granting a post-judgment motion filed by his former wife Roberta Cabotage
Williams (Cabotage) to divide a pension which was not divided in the judgment
that dissolved their marriage. We
conclude, among other things, that: 1)
Cabotage had a statutory right to divide the pension in a post-judgment
proceeding, 2) the parties' stipulation for judgment may not be interpreted to
forfeit her community property interest in the pension, and 3) it may not be
applied to divest the court of jurisdiction to perform its duty to achieve an
equitable division of community property.
We affirm.
FACTS
On August 5, 2004, the superior court issued a
of Williams and Cabotage. The parties
made a division of their marital property in a
to Williams' pension ‑ a community property asset.
The stipulation
provided, "Within 180 days of entry of Judgment of Dissolution of Marriage
herein, the parties shall jointly retain an appropriate professional to
determine the community interest in the Husband's Frito-Lay pension; however,
the entire cost of the pension valuation shall be borne solely by the
Wife. The Husband is required to fully
cooperate so that the valuation may be completed quickly and efficiently.
"Upon receipt and
review of the valuation, the Husband shall have the option to buy-out the
Wife's interest in his pension so as to preserve his full pension benefit to
himself. The Husband must execute his
pension buy-out option no more than 180 days following receipt of the
valuation.
"Should the Husband
fail to buy-out the Wife's interest in his pension for any reason, the parties
may resolve the matter via any agreed means or by court decision via properly
noticed motion.
"The parties agree
that the Court shall retain jurisdiction over division of the Husband's
Frito-Lay pension only. Such
jurisdiction shall terminate without further action of any party on the second
anniversary of the Judgment date herein."
On February 23, 2012, Cabotage filed a motion/order
to show cause seeking to divide the pension.
She claimed the "parties have never valued the pension" and
Williams did not exercise his "option to buy out" her interest in
it. She alleged that she and Williams
were unable to agree on a division, and consequently she sought a court
division of the asset.
Williams filed an
opposition claiming the trial court lacked jurisdiction to divide the
pension. The trial court granted
Cabotage's motion. It ruled that the
pension was an undivided community property asset; that the court had
jurisdiction in a post-judgment proceeding; and that in the "interests of
justice," it was appropriate to divide this asset.
DISCUSSION
Williams challenges the
trial court's express and implied factual findings in favor of Cabotage. But he did not produce a complete
record. We do not know what evidence,
factual showings, admissions or concessions the parties made at the hearing
because there is no reporter's transcript.
In addition, Williams did not obtain a settled statement. Consequently, we must presume the court's
findings are supported by matters that are not before us.
"'A judgment or
order of the lower court is presumed
correct. All intendments and
presumptions are indulged to support it on matters as to which the record is
silent . . . .'"
(Null v. City of Los Angeles
(1988) 206 Cal.App.3d 1528, 1532.) But
even on the record we have, the result does not change.
Jurisdiction
to Divide the Pension
Williams contends the
trial court did not have jurisdiction to consider a post-judgment motion to
modify the original dissolution judgment involving his pension. He notes that judgment was filed on August 5, 2004.
But the trial court
found the pension was an undivided asset and that it retained jurisdiction to
divide it post judgment. The court was
correct. Family Code section 2556 provides,
in relevant part, "In a proceeding for dissolution of marriage,
. . . the court has continuing
jurisdiction to award community estate assets . . . to the
parties that have not been previously adjudicated by a judgment in the
proceeding."
title="">[1] (Italics added.)
There is a statutory
procedure for Cabotage to file a post-judgment motion to divide an undivided
community asset. Section 2556 provides,
"A party may file a postjudgment motion or order to show cause in the
proceeding in order to obtain adjudication of any community estate asset
. . . omitted or not adjudicated by the judgment." Section 2556 does not have a time limitation
on the court's continuing jurisdiction to divide community assets post
judgment. "[E]ven where there is an
ostensible, final and complete judgment the parties may nonetheless litigate
issues of property rights that are not expressly adjudicated by that
judgment." (In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372, 1379, fn. 6.)
Did
the Stipulation Bar Relief or Forfeit Cabotage's Property Rights?
Williams contends the
parties' stipulation for judgment barred relief for Cabotage after August 5, 2006. He notes that there is a two-year provision
which states, "The parties agree that the Court shall retain jurisdiction
over division of the Husband's Frito-Lay pension only. Such jurisdiction shall terminate without
further action of any party on the second anniversary of the Judgment date
herein." He also highlights a
second provision which provides, "It is the express intention of the
parties that any asset inadvertently
omitted above should accrue to the party who enjoys primary possession of
the asset." (Italics added.)
Williams argues that
because Cabotage did not file her motion before August 5, 2006: 1)
the trial court lost jurisdiction, 2) Cabotage forfeited her right to divide
the pension, and 3) this community asset became his sole property as a result
of her untimely motion.
The pension was
expressly identified as a community asset in the judgment, and the judgment
contained a procedure for the parties to divide it. Consequently, the pension does not fall
within the category of "inadvertently omitted" property. More importantly, the next provision in the
stipulation provides, "Notwithstanding the immediately preceding
paragraph, the parties expressly exempt from the above distribution the
Husband's Frito-Lay pension."
The two-year provision
may not be applied to bar Cabotage from bringing litigation to divide the
pension or as a forfeiture of her community property rights. As the trial court correctly found,
"[N]othing in the judgment awards him the pension in the event Wife failed
to file a motion or otherwise resolve the issue within two years." The stipulation allowed him to buy her interest
in the pension, but Williams did not do so.
Consequently, Cabotage's
community property interest in this pension did not expire on August 5, 2006. The pension remained as property that was
"left unadjudicated by decree of divorce," and consequently Cabotage
and Williams continued to hold it as "tenants in common." (Henn
v. Henn (1980) 26 Cal.3d 323, 330.)
Her right to divide it in judicial proceedings is established by
decisional law (id. at pp. 329-333)
and by a subsequent statutory enactment (§ 2556).
The trial court also
rejected Williams' claim that Cabotage forfeited her rights. It said, "There is no basis to find that
the interests of justice require that [Cabotage] forfeit her community interest
in the pension." Williams has not
shown the court erred by finding such a forfeiture would be inequitable. Family law courts are "courts of
equity." (In re Marriage of Klug (2005) 130 Cal.App.4th 1389, 1403.) "'[E]quity abhors
forfeitures.'" (
443, 445.) The agreement did not provide
that there would be a change in any party's pension interest two years after
entry of judgment. A forfeiture of an
interest should not be implied. In
interpreting the parties' agreement, "the construction which avoids a
forfeiture should be favored." (
730, 734.) The trial court's decision is
consistent with this rule.
Williams contends he and
Cabotage "expressly preempted provisions of Family Code
§ 2556." (Boldface
omitted.) But the agreement did not
include a waiver of Cabotage's right to bring a section 2556 motion. Nor did she waive her right to bring an
independent action to divide the pension after August 5, 2006. (See Henn
v. Henn, supra, 26 Cal.3d
323.) "[T]he right to pursue claims
in a judicial forum is a substantial right and one not lightly to be deemed
waived." (Marsch v. Williams (1994) 23 Cal.App.4th 250, 254.) Even if the stipulation could impose a
two-year time limit on the judgment, it could not impede Cabotage's independent
statutory right to reopen that
judgment by filing her section 2556 motion.
Court's Jurisdiction?
Williams claims the
trial court should have interpreted the agreement as expressing the parties'
intent to "preempt" the court's jurisdiction. But he has not shown from this incomplete
record why the court could not reasonably find the parties did not have such an
intent. He cites one part of the
stipulation and claims that after two years the court has no power to provide
further relief. But another provision of
the stipulation vests the court with the power to vacate the judgment. It provides, "[W]e understand that
noncompliance with our disclosure
obligations will result in the court
setting aside the judgment in this matter." (Italics added.) The trial court could reasonably find this
provision showed the parties' intent that the court would retain equitable
jurisdiction to provide a remedy for an unfair division of property post
judgment.
Cabotage also contends
the parties intended that a condition precedent to invoking the two-year
provision would be cooperation in dividing the pension. She claims Williams is estopped from
asserting the two-year time limit because he did not disclose pension
information and deliberately obstructed and delayed her efforts to divide that
asset. She argues the time periods in
the stipulation were consequently tolled because of his conduct.
Williams disputes
Cabotage's claims. But there is no
transcript of the hearing. Because of
the incomplete record, we cannot assume the trial court impliedly found for
Williams on these claims. (
p. 1532.)
Courts will not enforce
stipulations that have the impact of undermining a strong public policy or
violating a party's statutory rights. (
Cal.App.3d 1020, 1029-1030.) Agreements
to preclude courts from exercising their continuing jurisdiction in marital
dissolution cases have been declared unenforceable in a number of
contexts. (In re Marriage of Bereznak (2003)
110 Cal.App.4th 1062, 1069; In re
Marriage of Jackson (2006) 136 Cal.App.4th 980, 990.) California has a strong public policy of
achieving an equitable distribution of marital property in dissolution
proceedings. (In re Marriage of Barnes (1987) 43 Cal.3d 1371, 1377-1378.) Section 2556 represents a major part of that
policy. Courts will not enforce marital
property agreements that result in windfalls that conflict with the Family Code. (In re
Marriage of Mehren & Dargan (2004) 118 Cal.App.4th 1167, 1171;
Cal.App.4th 470, 474.) The trial court
correctly ruled that adopting Williams' position would prevent the court from
exercising its continuing statutory duty to achieve an equitable division of
property. It would also undermine a
strong state policy and promote an injustice by forfeiting Cabotage's entire
interest in the pension. (
at pp. 329-333.) "'"[T]he
court cannot surrender its duty to see that the judgment to be entered is a
just one . . . ."'" (DVD
Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697,
725.)
The order is
affirmed. Costs on appeal are awarded in
favor of the respondent.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Patrick
J. Perry, Judge
Superior
Court County of San Luis Obispo
______________________________
Wayne Philips Law, Wayne
Philips for Appellant.
Roberta Cabotage, in
pro. per., for Respondent.
name="_ftn1" title="">[1] All statutory references are to the Family
Code.
