Marriage of Camerlingo













Filed 6/29/12
Marriage of Camerlingo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

In re Marriage of MICHAEL and MARIE CAMERLINGO.
MICHAEL CAMERLINGO, Appellant, v. MARIE V. CAMERLINGO, Respondent.	G046377 (Super. Ct. No. 06D009670) O P I N I O N

Appeal
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Kim R. Hubbard, Judge.
Original proceedings; petition for a writ of mandate to challenge an
order of the Superior Court of Orange County.
Appeal dismissed. Writ petition
granted.

Law Offices of J. John
Oh and J. John Oh for Appellant.

Jarvis, Krieger &
Sullivan, Richard P. Sullivan, and Karen B. Fehlker for Respondent.

* * *

Michael
Camerlingo appeals from the family court’s order directing him to appear at a
judgment debtor examination scheduled by his former wife, Marie,href="#_ftn1" name="_ftnref1" title="">[1]
several years after entry of their divorce
judgment, which expressly waived spousal support. After the divorce, Michael and Marie entered
into an agreement purporting to modify the no-support provision of the divorce
decree, and the former couple filed the agreement with the family court as an
order modifying their divorce judgment.
But Michael later obtained a final ruling from the family court, which
Marie did not appeal, that it had no jurisdiction over support and therefore
could not compel Michael to adhere to the agreement, which the court found did
not constitute a valid order modifying the divorce decree’s no-support provision. A different judge nevertheless ordered
Michael to appear at the debtor exam based on the conclusion the agreement
constituted a valid support order.
Michael is correct that collateral estoppel bars this result, though
Marie may have other avenues to enforce their agreement. As we explain below, we exercise our
discretion to treat Michael’s appeal as a writ petition, and we grant the
petition and reverse the trial court’s order for Michael to appear at the debtor
examination.

I

FACTUAL AND PROCEDURAL BACKGROUND

Michael and Marie wed in
December 1982 and divorced almost 25 years later on July 24, 2007,
when the trial court entered a dissolution judgment. The judgment formalized their marital
settlement agreement, which, among other provisions, expressly disavowed either
party’s right to receive spousal support.
Specifically, paragraph 22 of the couple’s agreement provided in
full: “Spousal Support. We are aware that it is mandated that the
Court reserve spousal support for long-term marriages of more than ten years,
when requested by either party. We
terminate our right to receive spousal support now or at anytime in the
future. This termination shall not be
modifiable by the parties or the court for any reason whatsoever. By executing this agreement, we each agree
and acknowledge that we understand that by terminating our ability to receive
spousal support we will be forever barred from seeking spousal support at any
time in the future regardless of the circumstances.”

In November 2009, the
parties reached a new agreement they entitled, “Stipulation to Modify Judgment
re: Spousal Support (Provision 22) filed
July 24, 2007 and Order Thereon” (November 2009 stipulation). Michael promised in the agreement to pay
Marie in 2009 an initial lump sum of $140,000, plus a monthly payment of
$2,500, which would change in 2010 to an annual payment of $50,000 a year for
nine years and $24,000 in the 10th year.
The agreement described the payments as “non-includable, non-deductible,
non-modifiable spousal support,” and provided that the payments remained owed
even “on the death of either party []or on the remarriage of either
party.” The agreement also required
Michael to create a trust and a will naming Marie as the sole beneficiary of
“100% of” Michael’s assets, with the couple’s adult daughter, Michelle, named
as the sole successor beneficiary.
Michael also promised in the agreement to transfer his assets into the
trust or into immediate joint tenancy with Marie and Michelle.

Michael and Marie included
in the agreement’s caption the Orange County Superior Court case number for
their divorce proceeding and, at the end of the document, a line stating, “IT
IS SO ORDERED,” which the family court signed when the couple filed the
document with the court. Neither
Michael nor Marie, however, sought an order to show cause (OSC) to modify the
zero support ordered in their divorce judgment, nor did the they request a
hearing on the issue. Nor did either
party immediately seek to enforce their attempted modification of the
judgment. While the title and face of
the agreement reveals Michael and Marie viewed their document as a “Spousal
Support” order “Modify[ing the] Judgment,” it became clear the family court
viewed it as a new, independent agreement between the parties, rather than a
support order.

In January 2010, Marie
sought an OSC to modify the November 2009 stipulation. Neither party included the modification
proceedings in the record on appeal; and neither objected when we informed them
we proposed to take judicial notice of this portion of the superior court
file. (Evid. Code, § 452,
subd. (d); Frisk v. Superior Court (2011)
200 Cal.App.4th 402, 407, fn. 2.)
As she phrased it in her modification OSC, Marie wanted to “[m]odify
[the] existing order” filed in November 2009. Instead of a $50,000 yearly payment under the
agreement or zero support for either party under the divorce decree, Marie
sought interim “Guideline Temporary” support under Family Code provisions
governing spousal support. Long-term, she saw her modification
petition as an avenue for “the complete renegotiation” of her terms with
Michael or, alternatively, the first step towards reopening the 2007 divorce
judgment for “trial on the issue of fair and reasonable long term permanent
spousal support.”

In her accompanying declaration, Marie asserted the divorce was a
sham. She explained she and Michael
“initiated a sham uncontested divorce proceeding” “for the foolish reason of
helping a relative in Vietnam.”
Specifically, “[Michael] and I jointly decided that the divorce would
enable me to ‘marry’ a distant cousin in Vietnam and bring him to this country
legally. [Michael] and I were both self
represented in our divorce proceeding.
After the divorce was finalized, it was always our intention to remain
living as husband and wife and eventually legally remarry. It was a foolish and unethical decision to
help our cousin in Vietnam and we luckily never completely went through with
[it]. However, [i]n July, 2007,
[Michael] and I were ‘divorced’ but continued to live together as man and
wife.”

In retrospect, a faint
hint of brewing trouble emerged in December 2007 when Michael, on his own and
without advance discussion with Marie, bought a home in Corona. According to Marie’s declaration, Michael
persuaded her to sign a document quitclaiming any interest in the property by
stating, “‘I will include your name to the title of the house once we are
legally remarried.’” Still, the couple “continued to live as
husband and wife,” and “jokingly referred to our home in the country (Corona)
and our apartment in the [c]ity (Costa Mesa),” with each having a key to both
“and we both came and went depending on our schedules.” In June 2008, Marie agreed
at Michael’s request to move $500,000 from her separate brokerage account to
his so he could “invest [it] in stock for ‘us,’” but she made it a loan rather
than a gift “and had him sign a promissory note confirming [the] same.” According to Marie, Michael referred to her
as his wife at escrow when he bought a business in October 2008, and though she
believed he “excluded me from ownership of the new business,” he “reassure[d]
me that all would be corrected upon us legally remarrying.”

In December 2008,
Michael had an affair with a woman in Vietnam.
Marie “also learned that just prior to traveling to Vietnam that month,”
Michael “had withdrawn almost all the funds from our joint accounts at Charles
Schwab and had transferred everything to his separate accounts.” He threatened to “drag things on for years
and spend all our money on litigation and attorneys” if she challenged his
financial dealings in court. “Feeling
[she] had no other option,” Marie “reluctantly succumbed to his requests and
rules” concerning money management. He
assured her he had just been “‘having fun’” with the woman in Vietnam and “had
no intention of getting seriously involved with anyone other than me.” > Michael
and Marie continued their “sexual and otherwise ‘marital’ relationship,” going
“out to movies, dinners, family events and liv[ing] together either in the
‘city’ or ‘country’ residences about four days a week.” Michael assured Marie she
was his sole beneficiary on his brokerage accounts and “that he had created a
family trust leaving everything to me and our adult children.”

But he admitted he had
lost the $500,000 she loaned him “due to the declining economy and stock
market.” By late fall 2009, believing
Michael had grown “unpredictable,” Marie “felt he and I had to agree to
something in writing,” so “[Michael] and I entered into” the November 2009
“Stipulation to Modify the Judgment.”
After signing the stipulation, she learned Michael had over $2 million
in his brokerage accounts. She regretted
that in both the divorce and in negotiating the stipulation, “We never
exchanged or filed Income and Expense Declarations or Schedules of Assets and
Debts. We never undertook formal
discovery in order to exchange financial information” and, “[a]t no time did
[Michael] ever disclose any financial information to me in writing.” > She
concluded in her declaration, “The divorce proceedings were based on fraud and
the [November 2009] modification was signed by me under fraud and duress.” She also noted that just before Christmas
2009, Michael “called our adult children and informed [them] he had married the
young woman from Vietnam whom he insisted he was having ‘fun’ with and brought
her to the States.”

In February 2010, while
her modification petition was pending, Marie also filed a motion to hold
Michael in contempt for failure to fulfill his promises in their November 2009
stipulation. Specifically, he failed to
pay her $1,400 of the $140,000 lump sum he owed her for 2009. She did not suggest he failed to pay her
$2,500 each month in 2009, as he had agreed.
And his first annual $50,000 payment was not due until December. But she spun his shortfall on the $140,000
payment into nine separate contempt charges, one for each of the last nine
months in 2009, even though they had not reached their written agreement until
the end of the year, in November 2009.
She also asserted two more contempt charges alleging he had failed to
transfer title of all his assets into her or Michelle’s name, as he had agreed.


The family court held a
hearing on Marie’s modification request in March 2010. The parties have not provided on appeal a
transcript of the hearing, nor the clerk’s transcript. Noting this omission, we requested directly
the superior court’s file concerning Marie’s modification petition. The family court’s minute order reflects that
when Marie’s counsel gave her opening remarks and “Counsel state[d] the issue before the Court [on] this date is to
determine if this Court has jurisdiction over the issue of spousal support”
(original boldface in minute order), the court continued the hearing to allow
the parties to file points and authorities.
The court also received Michael’s not guilty plea to the contempt
charges, and accepted the parties’ agreement “to address the Contempt hearing
after the resolution of this osc.”

The parties do not
discuss the subsequent proceedings concerning Marie’s modification request, but
the superior court file reveals the family court denied her motion. Specifically, the court’s May 14, 2010,
minute order states that Marie’s “osc is
denied” (original boldface), and includes the court’s explanation that the
“parties are bound to their agreement in both instances.” We infer this means the court concluded the
parties could not modify the judgment to require spousal support under
applicable Family Code legislation because they expressly waived support in
their marital settlement agreement, which became part of the judgment. But the court’s language suggests the parties
nevertheless remained free to later reach binding contractual agreements with
each other after the judgment, if they chose to do so.

In June 2010, the
court turned its attention to Marie’s contempt petition. Michael challenged the petition with a motion
to strike, which the court granted.
Again, the parties do not include a reporter’s transcript on appeal of
the contempt hearing, but they do include the court’s minute order, which
states: “Court finds this court does not
have jurisdiction over the issue of support.”
Accordingly, the court granted Michael’s motion to dismiss Marie’s OSC
re contempt. It appears the court
accepted the parties’ characterization of their November 2009 agreement as
an attempt to modify court-ordered
support, namely the divorce judgment’s zero figure for either spouse, rather
than viewing the agreement as an independent, postjudgment contractual
agreement. Notably, Marie never asserted
or attempted to prove a cause of action for breach of contract, but instead
relied on the agreement as if it constituted a support order modifying the
judgment. But as noted, the court
concluded it “d[id] not have jurisdiction over the issue of support,” and therefore denied Marie’s contempt
petition.

Marie did not appeal or
otherwise challenge either the
court’s May 2010 order denying her requested href="http://www.mcmillanlaw.com/">modification to obtain guideline
support, or its June 2010 order denying her contempt petition because the court
no longer had jurisdiction over spousal support.

Instead, 15 months
passed. Marie retained a new attorney
and, according to the lawyer, Marie “instructed [him] to file” an application
for an order requiring a judgment debtor examination. Marie described herself on the application as
a “[j]udgment creditor” and Michael as “the judgment debtor,” and she checked a
box alerting him the purpose of the examination was to “furnish information to
aid in enforcement of a money judgment against you.” The family court granted Marie’s application
ex parte and when Michael failed to appear at the examination on November 4,
2011, or the deposition Marie scheduled on November 16, 2011, the court
issued a $5,000 bench warrant.

Michael filed a motion
to strike the judgment debtor exam, which the trial court denied after a
hearing, instead ordering him to submit to a rescheduled exam on
January 16, 2012. Specifically, the
trial court concluded that “the stipulation and order of 11/29/09 is a valid
court order; it modifies the [divorce] judgment, and . . . this court
has statutory authority to enforce it; therefore, we will deny the motion to
strike and dismiss and [instead] order the appearance for the judgment debtor
exam.” Michael appealed and sought a
temporary stay of the debtor exam, which this court granted pending our
resolution of the appeal.

II

DISCUSSION

A. Appealability

Marie asserts we may not
reach the merits of Michael’s appeal because the trial court’s denial of his
motion to strike the debtor exam is not an appealable order. She relies on Samuel v. Stevedoring Services (1994) 24 Cal.App.4th 414 (>Samuel).
There, the court held that “denial of a motion to dismiss in the nature
of a request for judgment on the pleadings” was “not subject to review on
direct appeal prior to trial.” (>Id. at p. 416.) The court observed, “The principal statute
which defines the scope of appellate jurisdiction in the Court of Appeal is
Code of Civil Procedure section 904.1 and it does not list the pretrial denial
of a dismissal motion as an appealable order.”
(Id. at p. 417>.)
Marie reasons that because section 904.1 similarly does not mention
denial of a motion to strike as an appealable order, Michael’s appeal must be
dismissed.

Michael notes >Samuel did not involve a postjudgment
motion to dismiss a debtor’s exam, but instead a pretrial “motion to dismiss in
the nature of a request for judgment on the pleadings.” (Samuel,
supra, 24 Cal.App.4th at
p. 416.) He also notes the court’s
debtor exam order, unlike a pretrial order, is not accurately described as
“interim” or “interlocutory” as Marie asserts in her motion to dismiss the
appeal. Rather, it may have an immediate
and dire financial effect as a mechanism for enforcing what Michael claims is a
nonexistent money judgment. Michael also
relies on Code of Civil Procedure section 904.1, subdivision (a)(2), which
authorizes appeals “[f]rom an order made after a judgment ,” and he relies on
authority providing that “[a] postjudgment order . . . which affects
the judgment in some way or relates to its enforcement . . . is
appealable so long as the appeal involves issues other than those decided by
the judgment.” (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492,
497.) According to Michael, the order is
thus appealable as a postjudgment order in two respects: it postdates and contradicts both the divorce
judgment precluding spousal support and the court’s subsequent conclusion it
lacked jurisdiction over support.

A judgment debtor
examination “is the postjudgment equivalent of a deposition.” (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter
Group 2011) ¶ 6:1271, p. 6G-1 (rev. #1, 2008).) “Generally, discovery orders are not
appealable.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879,
885.) Exceptions exist (see, e.g., >id. at pp. 885-886), but we need
not determine whether the postjudgment nature of these proceedings or other
circumstance requires an exception. The
order is independently reviewable by extraordinary writ (see, e.g., >ibid.) given Michael’s important and
immediate interest in not being subjected to an examination that, as we explain
below, is barred by collateral estoppel.
We therefore exercise our discretion to treat the notice of appeal as an
extraordinary writ petition (ibid.; 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 88, pp. 149-150), and
reach the merits of his claim.

B. Examining a “Judgment” Debtor Based on a Support Order

As an additional
preliminary matter, we note neither party disputes that the beneficiary of a
valid spousal support order may utilize a judgment debtor exam as an aid to
enforcing the order. This approach,
however, has an undeniably counterintuitive aspect given that an “order” does
not typically constitute a “judgment,” nor has there been a judicial
determination of outstanding arrearages, as in an ordinary judgment. But we recognize family law presents special
circumstances and allowances, including, for example, that support orders are
enforceable by a writ of execution without
prior court approval. (Fam. Code,
§ 5100.) Similarly, the Code of
Civil Procedure provides an ex parte procedure to examine a money judgment
debtor (Code Civ. Proc., § 708.110, subd. (b)) and, most importantly,
the Legislature has defined a “money judgment” as not just “that part of a >judgment that requires the payment of
money” (Code Civ. Proc., § 680.270, italics added), but also the portion
of an “order[] or decree” (§ 680.230) requiring monetary payment.

Although use of the
debtor exam procedure makes only rare appearances in reported family law cases,
it is recognized in treatises on the topic.
(See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011)
¶ 18:640, pp. 18-180-18-181 (rev. #1, 2008); Cal. Civil Practice
(Thomson Reuters 2003) Family Law Litigation,
¶ 19:103, pp. 122-123.)
Consequently, we presume the validity of the procedure here and turn to
the heart of the parties’ dispute — whether collateral estoppel barred the
conclusion the parties’ November 2009 agreement constituted a valid
spousal support order.

C. Collateral Estoppel

Michael contends
collateral estoppel bars Marie’s attempt to require him to submit to a judgment
debtor’s exam. Specifically, he argues
that because the court earlier determined it lacked jurisdiction over family
support, no valid spousal support order or money judgment existed on which to
require an exam. He conceded below in
his motion to strike the exam that the November 2009 stipulation was
“enforceable by ordinary contract remedies,” but he noted Marie never followed
through on suing him for breach of contract.
According to Michael, Marie “filed a civil complaint against [him] in
Orange County Superior Court, Case No. 30-2010-00435224, alleging, among other
things, breach of the Stipulation by [Michael].
However, [Marie] then dismissed the case on March 28, 2011.”

We agree href="http://www.fearnotlaw.com/">collateral estoppel bars Marie from
enforcing the November 2009 stipulation as a support order. The doctrine of collateral estoppel precludes
relitigation of issues previously adjudicated.
(Lucido v. Superior Court
(1990) 51 Cal.3d 335, 341; Campbell
v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1334.) The elements of collateral estoppel are: “(1) the issue sought to be precluded
from relitigation is identical to that decided in the former proceeding;
(2) the issue was actually litigated and necessarily decided in the former
proceeding; and (3) the party against whom preclusion is sought was a
party, or in privity with a party, to the former proceeding.” (People
v. Gillard (1997) 57 Cal.App.4th 136, 159.) Additionally, “the decision in the former
proceeding must be final and on the merits.”
(Lucido, at p. 341.)

Here, the family court
determined not once but in two final
adjudications that the November 2009 stipulation did not constitute an
enforceable family support order.
Consequently, Marie could not rely on the stipulation as the basis for
Michael’s debtor exam.

First,
Michael relies on the court’s conclusion in the contempt proceeding that it
lacked jurisdiction over family support because the parties rejected the right
to spousal support in their divorce judgment and failed to reserve jurisdiction
over the issue. Michael defends this
conclusion with legal authority holding spouses may waive support, the court’s
jurisdiction terminates without an express reservation concerning spousal
support, and the parties may not confer jurisdiction on a court. (See, e.g., Fam. Code, § 4335 [support
“shall not be extended unless the court retains jurisdiction”]; >In re Mariage of Iberti (1997)
55 Cal.App.4th 1434, 1440 [unambiguous language terminating spousal
support precludes further support]; In re
Marriage of Katz (1988) 201 Cal.App.3d 1029, 1034 [no reinstatement of
support that was terminated in divorce judgment]; see also, e.g., >People v. National Automobile & Casualty
Ins. Co. (2000) 82 Cal.App.4th 120, 125 [“subject matter jurisdiction
cannot be conferred by consent”].) Whether the family court
was correct in concluding it lacked
jurisdiction is beside the point. It is
not our province to reweigh the merits of the family court’s jurisdictional
finding if it was final. Indeed, the sole ground on which Marie
challenges the collateral estoppel effect of the court’s jurisdictional finding
is her claim that the context in which the court made the finding — dismissal
of contempt charges against Michael —
did not constitute a final judgment.
But it is settled that “[t]he judgment and orders of the court or judge,
made in cases of contempt, are final and conclusive.” (Code Civ. Proc., § 1222.) In
effect, Marie’s attempt to assert the November 2009 stipulation
qualified as the basis for Michael’s debtor exam amounted to reasserting the
court’s jurisdiction over support, which collateral estoppel barred.

Secondly, and as an
independent basis precluding the debtor exam, the family court already had
determined in its order denying Marie’s modification request that the
November 2009 stipulation did not constitute a valid support order. Although the
court did not phrase its conclusion this way, the distinction between a support
order and a contract between the parties necessarily follows from the court’s
conclusion that the divorce decree was controlling and precluded Marie’s
request for guideline temporary support.
Specifically, if the parties’
purported November 2009 modification had been valid as a support order, then
the validity of that modification of
the divorce decree would have established the court’s continuing jurisdiction
over spousal support. Thus, the family
court would have been able to further modify support as Marie requested in her
OSC re modification. But the court
concluded it could not do so. The trial
court’s order denying Marie’s modification request was a final, appealable
order. (See, e.g., In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7 [denial of
request to modify spousal support reviewed for abuse of discretion].) Consequently, the order became effective for
collateral estoppel purposes when Marie failed to appeal it.

True, the court also
stated in its minute order denying Marie’s modification request that the
parties were “bound to their agreement in both instances,” which suggested a
measure of validity in the November 2009 stipulation. But given the court’s denial of Marie’s
request to modify spousal support, the court could only have meant the
stipulation was valid in a contractual sense, with the parties free to enter
binding, postdissolution contracts with each other. As Marie puts it in her brief on appeal, “If
the stipulation does not modify the [divorce] judgment, it can stand alone,”
presumably as an independent contract between the parties. The flaw, however, in Marie’s position is
that she never followed through and obtained a judgment for breach of
contract. Therefore, given the absence
of a valid support order or breach of contract or other money judgment, there
was no basis for a different family court judge to later order Michael to
appear for a debtor exam.

Marie argues that
because Michael failed to appeal the
family court’s entry of their November 2009 stipulation as an order of the
court in the clerk’s transcript concerning their divorce, he was and remains barred from challenging the validity of that
“‘Order Thereon’” modifying spousal support.
We need not — and indeed may not — evaluate the merits of this claim or
whether the court’s acceptance of the stipulation was a pro forma act that did
not enable the parties to revive the court’s jurisdiction by mere consent. To the contrary, the family court already
twice decided the stipulation did not entitle Marie to spousal support and that
the court lacked jurisdiction, as discussed.
Those determinations are final.
Marie’s waiver claim operates as a collateral attack on the court’s
rulings, which the doctrine of collateral estoppel prevents.

Marie also contends “the
parties made a mistake in the judgment and modified it with the stipulation,
and as such, the court ha[d] inherent power to fix this mistake in
equity.” She relies on >Olsen, supra, 24 Cal.App.4th 1702, where the trial court had ordered
spousal support and jurisdiction terminated pursuant to the wife’s waiver of
further support, predicated on the court’s understanding former wives of
military servicemen remained entitled to certain benefits under federal
law. When federal law subsequently
changed, the trial court granted the
wife’s modification request and ordered resumed spousal support. The reviewing court affirmed, holding: “The court could, in its equitable powers,
set aside its former order as having been made through mistake and issue a new
order. [Fn. omitted.] Under certain circumstances a court, sitting
in equity, can set aside or modify a valid final judgment obtained by fraud,
mistake, or accident, either in an independent action in equity or on a motion
in the original action.” (>Olsen, at pp. 1706-1707.)

Marie’s reliance on >Olsen is ill-founded for several
reasons. First and foremost, the trial
court in Olsen granted the wife’s
modification motion, but here the trial court denied Marie’s request, and she
did not appeal, rendering the trial
court’s conclusion final. Second and
related, there is no authority for a reviewing
court to consider, try, and grant in the first instance Marie’s equitable
claim. Moreover, Marie failed to include
in the record on appeal the basis of her claim, i.e., her declaration, which we
obtained only by happenstance in requesting the modification ruling the parties
omitted on appeal. Third, it is not
clear whether the family court even considered the merits of Marie’s claims in
her declaration; instead, the court may have reached its no-modification and
no-jurisdiction conclusions on other grounds, including simply that the parties
could not revive the court’s spousal support jurisdiction by consent, as they attempted to do in their
November 2009 stipulation. But precisely
because the court’s May and June 2010 rulings on these issues were final, they
erect a collateral estoppel bar to the notion there was a valid support order
or money judgment underpinning Michael’s debtor exam. In sum, Olsen
is not authority for making a money judgment or support order somehow
materialize when there was none. Marie’s
reliance on Olsen therefore fails.

Of course, our
resolution of this appeal says
nothing about whether Marie may have valid claims against Michael that >could support a judgment. We do not know on the record presented
whether Marie dismissed her breach of contract claim with prejudice or whether
the statute of limitations has passed on her claim for nonpayment of $1,400 out
of the $140,000 Michael owed her under their agreement, nor do we know whether
new claims for breach have arisen if Michael failed to pay the annual $50,000
installments, or whether viable fraud claims might remain — none of these
issues are before us, but instead are for the parties to consider in resolving
any continuing disagreements. We hold
only that the trial court erred in ordering the debtor exam without a valid,
underlying money judgment.

III

DISPOSITION

The trial court’s order
requiring Michael to appear for a judgment debtor exam is reversed. He is entitled to his costs in this review.







ARONSON,
J.



WE CONCUR:







O’LEARY, P. J.







RYLAARSDAM, J.