Opinion
B304462
01-11-2021
In re Marriage of KAI and MICHAEL HERRERA. KAI HERRERA, Appellant, v. MICHAEL HERRERA, Respondent.
MNB Law Group, Inc. and Ryan McEachern for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. LD074796) APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Mordetzky, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. MNB Law Group, Inc. and Ryan McEachern for Appellant. No appearance for Respondent.
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Wife Kai Herrera and husband Michael Herrera entered into a stipulated judgment for dissolution of their marriage, agreeing that wife would pay spousal support to husband for a fixed duration, and that the agreed upon support "is final and cannot be modified by court order in amount or duration at any time for any reason whatsoever." Two months into the support period, husband remarried. Wife filed a motion to terminate her support obligation and obtain a refund of the support she had paid after husband's marriage and for sanctions, arguing husband's remarriage terminated her support obligation by operation of law pursuant to Family Code section 4337. (All further statutory references are to the Family Code.) Husband opposed the motion, arguing the stipulated judgment expressly contemplated remarriage would not terminate spousal support. The family court agreed with husband and denied the motion. We affirm.
BACKGROUND
On November 28, 2017, the family court entered a judgment for dissolution of the marriage of Kai and Michael Herrera, pursuant to the parties' stipulation. As is relevant here, the stipulated judgment provided that wife would pay spousal support to husband for a fixed period of time:
"14. Spousal Support:
"a. [Wife] shall pay to [husband] for his support and maintenance the sum of five hundred dollars ($500) per month, payable one half on the first and one half on the fifteenth day of each calendar month for the months of November 2017 and December 2017 only.
"b. Commencing January 1, 2018, [wife] shall pay to [husband] for his support and maintenance the sum of seven hundred dollars ($700) per month, payable one half on the first and one half on the fifteenth day of each calendar month continuing until September 1, 2019, at which time [wife]'s liability to pay to [husband] spousal support shall forever terminate.
"c. The parties agree that said spousal support liability set forth in this Paragraph 14 is final and cannot be modified by court order in amount or duration at any time for any reason whatsoever."
In May 2019, wife discovered that husband had remarried in January 2018. On September 11, 2019, wife filed a request for an order seeking termination of spousal support, repayment of $11,550 in support already paid to husband, and sanctions of $15,000. Wife believed husband entered into a confidential marriage to conceal it from wife.
Husband filed a responsive declaration testifying the stipulated judgment was drafted by his attorney, he and his attorney had discussed that support would not terminate upon remarriage, and the "duration" language in the agreement waived application of section 4337.
In reply, wife argued the stipulation was not susceptible to the interpretation that section 4337 was waived, and therefore extrinsic evidence was not admissible to construe the agreement.
The court took the matter under submission. In its written order, the court denied the request, concluding the stipulation provided that neither the amount nor duration of support could be modified for any reason whatsoever, "which would include remarriage." The court did not consider extrinsic evidence in making its ruling.
Wife timely appealed.
DISCUSSION
Generally, spousal support awards and agreements are modifiable throughout the support period, except as otherwise provided by agreement of the parties. (See, e.g., § 3603.) Support may also terminate pursuant to statute. As is relevant here, section 4337 provides that spousal support "terminates upon the death of either party or the remarriage of the other party" "[e]xcept as otherwise agreed by the parties in writing."
Wife contends the parties' stipulated judgment did not waive section 4337's automatic termination of support upon husband's remarriage, because it does not mention section 4337, remarriage, or termination.
Our review is de novo, under the normal rules of contract interpretation. The goal of contractual interpretation is to give effect to the mutual intention of the parties. If contractual language is clear and explicit, it governs. (In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012-1013.)
"If the parties intend that support is to be 'nonterminable for any reason whatsoever,' they must say so in their agreement. No particular words are required. [Citation.] On the other hand, silence will not do. [Citation.] Language stating that the support is not modifiable also will not do." (In re Marriage of Glasser (1986) 181 Cal.App.3d 149, 151 (Glasser); see also In re Marriage of Thornton (2002) 95 Cal.App.4th 251, 254 (Thornton).) That is because "termination" and "modification" are distinct concepts, which describe different ways a support obligation may be altered. (Glasser, at pp. 152-153.)
Wife relies on Thornton and Glasser, supra. In those cases, the courts concluded the written agreements were insufficient to waive section 4337. Those agreements provided, generally, that spousal support was "non-modifiable," but did not address termination of support. (See Glasser, supra, 181 Cal.App.3d at p. 151 [" 'Spousal support shall be non-modifiable for any reason whatsoever.' "]; Thornton, supra, 95 Cal.App.4th at p. 253 [" '[S]pousal support shall be non-modifiable.' "].)
The spousal support agreement in this case is different from Thornton and Glasser. The agreement here expressly states the obligation to pay support "shall forever terminate" in September 2019, and the agreed upon "spousal support . . . is final and cannot be modified by court order in amount or duration at any time for any reason whatsoever." (Italics added.) The agreement here has a fixed termination date, and says the duration—"the time during which something exists or lasts"—cannot be modified. (Merriam-Webster Dict. <https://www.merriam-webster.com/dictionary/duration> [as of Jan. 11, 2021], archived at <https://perma.cc/P3RC-RLUZ>.)
In re Marriage of Cesnalis (2003) 106 Cal.App.4th 1267 (Cesnalis) supports our conclusion. In that case, the stipulated judgment provided that " '[h]usband shall pay spousal support . . . for a period of three years, . . . beginning November 1, 2000, and continuing until either party's death, or October 30, 2003, whichever occurs first, at which point spousal support will terminate absolutely. The duration of spousal support will not be modifiable under any circumstances, and the termination date stated herein is absolute . . . .' " (Id. at p. 1271, first ellipsis added.)
The Cesnalis court reasoned that "the nonmodifiability provision of [the stipulated judgment] is expressly limited to the three-year 'duration of spousal support' which 'will not be modifiable under any circumstances' and which will end only if the three years are up or one of the parties dies. . . ." (Cesnalis, supra, 106 Cal.App.4th at p. 1274.) The court concluded that "[w]ith this focus on a definitive three-year duration, the 'nonmodifiability' provision in [the stipulation] relates more to termination than to modification," (ibid.) and found that the agreement could be reasonably construed to waive the termination provisions of section 4337 (Cesnalis, p. 1273).
Here, like in Cesnalis, the parties agreed support was to "forever terminate" on a date certain (September 2019), and the duration of the support could not be modified. (Cesnalis, supra, 106 Cal.App.4th at p. 1274; see also Johanson v. Comm'r (9th Cir. 2008) 541 F.3d 973, 975, 977 [finding agreement providing that "[t]he duration of spousal support is non-modifiable" was reasonably susceptible to an interpretation that the parties waived § 4337].) The agreement contemplates that wife's support obligations must continue until September 2019, and could not be modified for any reason, including husband's remarriage.
DISPOSITION
The order is affirmed. No costs are awarded.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.