Marriage of Kahn
Filed 3/20/07 Marriage of Kahn CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of GARY and MARY KAY GAHN. | |
GARY GAHN, Appellant, v. MARY KAY RULE, Respondent. | D047187 (Super. Ct. No. D487088; Super. Ct. No. GIC832216) |
APPEAL from orders of the Superior Court of San Diego County, Thomas C. Hendrix, Judge. Affirmed.
In 1987, upon the dissolution of marriage between Mary Kay Gahn[1]and Gary Ronald Gahn, their marital settlement agreement (MSA) provided that Gahn would buy Rule's interest in their residence for $15,000, and Rule would execute a transfer of the residence to Gahn upon receipt of $10,000. Gahn failed to pay Rule in full, and he never received the deed. In 2004, Gahn filed an action in superior court seeking to quiet title. The court transferred the case to the family court, which enforced the original MSA.
Gahn contends: (1) the superior court erred in transferring his civil complaint to the family court; (2) the family court deprived him of his constitutional and statutory right to a jury trial; (3) Rule's motion to enforce the MSA was time-barred by Family Code, section 291; and (4) the family court erred in awarding Rule attorney fees. We affirm the order dated July 28, 2005.
FACTUAL AND PROCEDURAL SUMMARY
In March 1987, a judgment of dissolution of marriage of the parties incorporating the parties' MSA was entered in the family court. The MSA contains the following provisions:
"8. . . . [] In regard to the residence [real property located at 6928 Madrone Avenue, San Diego, California], it is hereby agreed husband shall buy wife's interest for [$15,000.00] payable as follows: $10,000 upon execution of this [a]greement and $5,000 within one year from the date of execution of this [a]greement, with interest of 10 [percent] per annum. [] Concurrent with the execution of this [a]greement, wife shall execute an Interspousal Transfer Deed to the residence located at 6928 Madrone Avenue, San Diego, California, to husband upon receipt of [$10,000]."
"21. . . .[] . . . [] . . . [H]usband and wife each agrees to refrain from performing any acts hereafter which would (a) . . . be inconsistent with, or would negate, or would detract from their intention that this be a non-taxable division of their community property, (b) would have the effect of depriving the other of the benefits of the intended tax free division, or (c) would result in the recognition of gain to the other by reason of this division."
"24. The court shall retain jurisdiction to make further orders that are necessary to enforce the provisions of this [a]greement, or any other provision of this [a]greement."
On July 1, 2004, Gahn filed in the San Diego Superior Court a "Complaint For Quiet Title And Request For Judicial Determination Of Adverse Possession; Judicial Determination Of Law Extinguishing Money Judgment; Judicial Determination Of Costs And Damages."
In September 2004, Rule filed a motion to transfer the matter to family court. On October 18, 2004, the superior court granted the motion and ruled: "[Code of Civil Procedure, section 683.020] is not applicable to a judgment or order made or entered pursuant to the Family Code. [(See Code Civ. Proc. 683.310.)] Furthermore, the provisions of the [a]greement and the [j]udgment at issue clearly state that the [f]amily [c]ourt retained jurisdiction to make further orders necessary over this matter to enforce the [a]greement and carry out the [j]udgment."
In December, 2004, Rule filed a motion to enforce the MSA; specifically, that the court order Gahn to pay her $21,000 plus interest, as follows: $6,000 that he was obligated to pay to buy out her share of the marital residence, plus $15,000, which was half of a loan that had been made from the community property and repaid to Gahn.[2] In the alternative, Rule sought a declaration that she is the owner of the Madrone Avenue residence. In January, 2005, Rule filed a motion to strike Gahn's complaint. Gahn filed an opposition to Rule's motion, and argued the action to enforce the 1987 Agreement was time-barred under Family Code, section 219. On April 6, 2005, following briefing on the issue, the family court ruled Gahn had no right to a jury trial.
On July 28, 2005, the family court issued its order: "[Rule] seeks to enforce those terms of the MSA whereby she was to receive an equalization payment in the amount of $15,000 for her one-half community property interest in the marital residence. The parties were merely accomplishing an equal division of their community assets. [Gahn] was ordered to pay [Rule] a specific amount of money. 'Money judgment' means that part of a judgment that requires the payment of money. [(Code of Civ. Proc.,
680.270.)] Accordingly, [Rule] had an enforceable money judgment entered pursuant to the Family Code which is specifically exempted from statutory rules for time limitations on enforcement and renewal." The court also ruled, "[Gahn] owes [Rule] $6,000 for the remainder due on the $15,000 to equalize the division of the community property residence. This $6,000 became due and payable on March 10, 1988, which is one year after the date of execution of the MSA. Therefore, [Rule] is entitled to interest at 10 [percent] per annum on the $6,000 from March 10, 1998, for approximate interest in the amount of $10,200. In return, [Gahn] shall receive full ownership of the marital residence." On October 7, 2005, the family court ordered Gahn to pay Rule's attorney fees and costs in the amount of $19,644.85, based on a declaration and supporting evidence filed by Rule's attorney.
DISCUSSION
I.
Gahn contends the court erred in transferring the matter to the family court. There was no error because the court merely gave effect to the MSA's provision that stated the family court retained jurisdiction to make further orders to implement the MSA. The family court was the appropriate forum to address the third cause of action in Gahn's civil complaint, which sought a "judicial determination of all debt or money judgment claims," and any other dispute regarding the interpretation of the MSA. "After a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division." (Askew v. Askew (1994) 22 Cal.App.4th 942, 961.)
II.
We reject Gahn's contention that under article 1, section 16 of the California Constitution, he was entitled to a jury trial. "The right to a jury trial is not absolute. 'The right so guaranteed by the Constitution is that of the right as it existed at common law or in those cases triable by a jury as a matter of right under the common law.' " (In Re Marriage of Gagne (1990) 225 Cal.App.3d 277, 289.) "Family law proceedings and other actions as to which a right to jury trial did not exist at common law do not fall under this constitutional provision." (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 951.) Gahn was not entitled to a jury trial in this action which, in any event, was based on quiet title and declaratory relief, founded in equity. (Mederios v. Mederios (1960) 177 Cal.App.2d 69, 72; Manneck v. Lawyers Title Ins. Corp. (1994) 28 Cal.App.4th 1294, 1300.)
III.
We reject Gahn's characterization of Rule's half interest in the residence as a judgment for the possession or sale of property subject to Family Code, section 291's ten-year statute of limitation. The family court did not err when it ruled, "that part of a judgment of dissolution that awards money in lieu of an in-kind division of nonmonetary community property such as an equalization of payment for the division of the community property marital residence is a money judgment." (In re Marriage of Pollard (1988) 204 Cal.App.3d 1380, 1382-1383.) Under Code of Civil Procedure, section 683.310, money judgments made under the Family Code are not subject to the 10-year statue of limitations. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 500.) Therefore, the motion for enforcement was not time-barred.
IV.
We reject Gahn's contention the family court erred in awarding Rule attorney fees. When Gahn challenged the attorney fees amount in a hearing in the family court, Rule maintained she was forced to litigate this case because since 1987 Gahn failed to pay her the amount stipulated in the MSA, and her legal fees included those owed to her previous attorney. The court ruled, "The attorney[] fees will stand as requested."
"Except as attorney[] fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties." (Code of Civ. Proc., 1021.) Here, the MSA specifically provided that, "Each party shall hold the other harmless from all obligations which each party may incur hereafter, except for legal fees and cost[s] incurred in connection with the assertion of rights and duties resulting from this [a]greement, or any expenses incurred in connection therewith, except as otherwise provided herein."
The amount of an attorney fees award is a matter within the sound discretion of the trial court, and will not be overturned unless the court of appeal is convinced it is clearly wrong. "The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination." (Akins v. Enterprise Rent-a-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) Gahn has not presented this court with persuasive evidence the trial court's attorney fees award was excessive, or a product of passion or prejudice; accordingly, we do not disturb the trial court's award.
Rule requests that this court permit her to seek attorney fees incurred after the family court's order on this matter, including fees incurred in her defense of Donald Perry, a real estate agent she hired to sell the Madrone Avenue property, whose defense costs she was responsible for, until the family court dismissed his case with prejudice; her defense of a writ petition brought by Gahn; and this appeal. Rule must seek postorder attorney fees in the family court in the first instance because the issue is not properly before us.
DISPOSITION
The orders are affirmed. Respondent is awarded costs on appeal.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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[1] Respondent subsequently remarried, and her name is now Mary Kay Rule.
[2] Section 7B of the MSA classified as community property "That personal loan having a face value of [$30,000] and payable to the parties by Michael Altinger."
