Williams v. Williams

Filed 10/19/07 Williams v. Williams CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Kevin B. Williams (Williams) appeals from an order requiring him to pay $20,000 plus interest to his former wife, respondent Cheryl D. Marshall Williams (Marshall), pursuant to the terms of the parties marital settlement agreement (MSA). Williams contends the trial court erred in this regard because Marshalls complaint was amended without leave of court and Marshall consented to a modification of the MSA postponing the deadline for payment. In addition, Williams argues that the court erred in ordering him to pay witness fees to a third party whom he subpoenaed to appear at a hearing.

During the pendency of the appeal, the parties entered into a settlement. In view of the settlement, we will dismiss the appeal as moot.

I. FACTS AND PROCEDURAL HISTORY

Appellant Kevin B. Williams (Williams) and respondent Cheryl D. Marshall Williams (Marshall) are former spouses. A judgment of dissolution of marriage was entered on April 12, 2006.

The parties MSA set forth the disposition of marital property and contained an integration clause precluding modification of the MSA except in writing. Among other provisions, the MSA recited that Marshall agreed to waive all her community property rights, including her interest in the parties residence, in consideration for Williams payment to her of $20,000. The MSA required Williams to pay the $20,000 upon entry and service of the interlocutory decree of dissolution of marriage, or April 12, 2006. Williams did not do so.

A. Order of Enforcement

In June 2006, Marshall filed a motion to enforce the MSA or, alternatively, to set aside the judgment. The hearing on the motion was initially set for August 17, 2006.

On August 8, 2006, Williams served Veronica Tiller (Tiller) with a subpoena to appear as a witness regarding her alleged service of certain documents upon Williams. Tiller appeared at the August 17 hearing, but the hearing was continued to August 31. When Williams refused to pay Tillers witness fees, Tiller made a motion for witness fees and mileage. The court calendared the motion to be heard on August 31 as well.

At the hearing on August 31, Williams presented one page of a 16-page document, contending it evinced the modification of the MSA such that his obligation to pay Marshall $20,000 had become conditioned on his sale of the family residence.

The court ordered Williams to pay Marshall the $20,000 and imposed interest at a rate of 10 percent from May 1, 2006. The courts order, filed on August 31, 2006, states: By September 8, 2006, Respondent [Williams] shall pay Petitioner [Marshall] the sum of $10,332.32. By October 6, 2006, Respondent shall [pay] Petitioner the sum of $10,332.32. The court also ordered Williams to pay Tiller $43.92 in regard to her request for witness fees and mileage.

B. Williams Motion to Set Aside the Order

Williams did not pay Marshall or Tiller. Instead, he filed a motion to set aside or vacate the judgment, claiming the parties had modified the MSA in light of an agreement by which Marshall would execute the necessary documents to enable him to refinance the former family residence, now his property alone, in order to withdraw equity to make improvements and repairs toward [the] sale of the property in exchange for his agreement to continue paying $300.00 per month toward Marshalls health and dental plan. In essence, Williams again argued that the modification required him to pay the $20,000 to Marshall after the refinance and upon sale of the residence. He also argued that the motion for witness fees by Tiller and Marshalls amended complaint were improper. The motion was denied.

C. Williams Appeal

On November 1, 2006, Williams filed a notice of appeal. Marshall filed a motion to dismiss the appeal as frivolous or, alternatively, to lift the stay of enforcement pending appeal. We denied the motion.

D. Settlement

After the appeal had been fully briefed by the parties, it came to this courts attention that the case underlying the appeal had been resolved by the parties settlement. We requested additional briefing from the parties in this regard.

Marshall provided a copy of the reporters transcript of proceedings in San Francisco Superior Court, case No. CGC-06-455713, on July 30, 2007. The transcript contains a description of the parties settlement and the requirement that Williams dismiss his pending appeals, including this appeal. Marshalls counsel summarized the settlement for the record as follows: Your Honor, the parties have settled their dispute, and the settlement includes not only the present case but a related family law case, Number FDI-05-759226. [] Mr. Williams agrees to pay Ms. Marshall the total sum of $31,000 in settlement. This is to be a general and mutual release which includes not only the parties, but the attorneys for the parties. [] It is a release under Section 1542 of the [Civil Code], . . . and it extends to all claims, known or unknown, existing between the parties, not only claims arising out of these two lawsuits, but any claims whatsoever from the beginning of time until today. [] As far as payment, your Honor, there is a bond posted in a related appeal in the family law case. Mr. Williams agrees within one week from today to have delivered to the bonding company instructions for the bonding company to release the $31,000 payment to Joseph W. Klobas Trust Account, that is for -- to counsel for Ms. Marshall. And the balance of the bond is to be released directly to Mr. Williams. [] . . . [] Within five days of delivery of the settlement funds to Mr. Klobas, this case is to be dismissed with prejudice. Mr. Williams is to dismiss his two appeals in the family law case, that is, District Court of Appeal Numbers A116013 and A118097, with prejudice. (Italics added.) The court then inquired of Marshall herself, whether counsels description accurately described the settlement. The court then asked the same of Williams: THE COURT: Did you hear the statements made by Mr. Klobas describing this global settlement? [] MR. WILLIAMS: Yes, I did. [] THE COURT: Do those statements correctly describe the settlement that you have achieved with Ms. Williams? [] MR. WILLIAMS: Yes, they do. [] THE COURT: Did you have any other questions or matters to place on the record? [] MR. WILLIAMS: No, I dont.

By letter dated September 21, 2007, Marshalls counsel represented that the settlement funds required to be paid to Marshall had been paid. Williams has not disputed the transcript or the fact of settlement.

Most recently, Marshall has filed a motion in this court to dismiss both this appeal and appeal number A118097, the other appeal referenced in the settlement agreement. Williams has responded by letter dated September 28, 2007, stating that he concurs with the dismissal of both appeals.

II. DISCUSSION
Williams initially raised several issues on appeal: (1) the trial court erred in permitting Marshall to submit an untimely supplemental request for relief; (2) Marshall consented to a modification of the MSA; and (3) the court erred in ordering Williams to pay Tiller for witness and mileage fees.

We need not address these issues, because the settlement of the parties has rendered this case moot. Generally, an appeal is moot if there is no longer any effective relief that we can order. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Here, Williams and Marshall have undisputedly settled the underlying case, resolved the issues between them, and mutually released one another. Dismissal is appropriate. (Muccianti v. WillowCreekCareCenter (2003) 108 Cal.App.4th 13, 24 [dismissal appropriate where case settled].)

By this opinion, we dismiss the appeal. By separate order, we will grant Marshalls motion to dismiss appeal number A118097.

III. DISPOSITION

The appeal is dismissed. Each party to bear its own costs on appeal.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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