Opinion
B162496.
7-21-2003
In re Marriage of MARION and RAYMOND RANDALL. MARION STANTON RANDALL, Respondent, v. RAYMOND LYNN RANDALL, Appellant.
Andrew T. Koenig for Appellant. Norman, Dowler, Sawyer, Israel, Walker & Barton, Matthew P. Guasco; and Richard A. Regnier for Respondent.
Raymond Lynn Randall appeals an order granting a motion to recall and quash an abstract of judgment, among other things. We affirm.
FACTS
In July 1987, Marion Stanton Randall filed a petition to dissolve her six-year marriage to Raymond. Raymond did not contest the petition and on January 15, 1988, Marion filed a declaration for a default or uncontested dissolution. She designated box 5 (a) of Judicial Council Form 1286.50 indicating that "the parties have entered into an agreement regarding their property and marital rights, the original or a true copy of which is or has been submitted, and the court is requested to approve the agreement."
The declaration attached a copy of a two-page document entitled "Property Settlement Between Marion S. and Raymond L. Randall." The property settlement divided the parties community and separate property estates. It also provided that Marion would pay Raymond $ 150,000 on March 7, 1996, as compensation for his services in the sale of Marions motel in Port Hueneme. It provided an offset for funds advanced by Marion and her daughter on Raymonds behalf. Specifically, the settlement stated that Marion had loaned Raymond sums "for different projects," including a "garage business," and had "paid his bills," including charge cards.
On January 15, 1988, the family law court entered a judgment dissolving the marriage. The judgment neither mentioned nor incorporated by reference the property settlement. The two-page property settlement as well as photocopies of several deeds were attached to the judgment.
On January 12, 2002, fourteen years later, Raymond obtained an abstract of judgment as a judgment creditor of Marion. Raymond represented that Marion is liable for a $ 150,000 judgment that the family law court entered on January 15, 1988. Raymond then obtained a writ of execution for nearly $ 241,000, including interest. Raymond also obtained an order from the trial court requiring Marion to appear for a debtors examination.
On July 9, 2002, Marion sought an order recalling and quashing the abstract of judgment and vacating the order to appear for a debtors examination. Marion contended that the property settlement, which contains the $ 150,000 promise to pay and a corresponding offset, does not enjoy the status of a judgment because it did not merge with the dissolution judgment. Marion also argued that the offset exceeds the $ 150,000 debt and that offset aside, the statute of limitations precludes Raymonds efforts to collect. (Code Civ. Proc., §§ 683.020 [10-year limitations period for enforcement of judgment]; 337 [4-year limitations period for action based on written obligation].)
Raymond responded that the property settlement was attached to the judgment and merged therewith. He declared that Marion "never did loan [him] any money or pay any of [his] bills, including charge cards," after separation. Raymond asserted that the 10-year limitations period of Code of Civil Procedure section 683.020 applies and commenced to run on March 7, 1996, the date the $ 150,000 payment became due.
The trial court relied upon In re Marriage of Lane (1985) 165 Cal. App. 3d 1143, 211 Cal. Rptr. 262, and concluded that the property settlement was not merged into the 1988 dissolution judgment. The court ruled that "the property settlement attached to the judgment is not merged therein and is an independent legal document." The trial court then recalled and quashed the abstract of judgment and vacated the order for a debtors examination.
Raymond appeals and contends: 1) as a matter of law, the dissolution judgment incorporates the property settlement, and 2) equitable principles compel merger of the settlement and judgment.
DISCUSSION
I.
Raymond argues that the property settlement merged into the 1988 dissolution judgment because the settlement was stapled thereto. ( In re Marriage of Lane, supra, 165 Cal. App. 3d at pp. 1147-1148 [discussion of factors to consider in determining whether parties and family law court intended merger of settlement agreement into dissolution judgment]; Garrett v. Garrett (1968) 258 Cal. App. 2d 407, 414-415, 65 Cal. Rptr. 580 [same].) He points out that the current version of Judicial Council Form "Judgment," states that each attachment is incorporated therein and the parties are ordered to comply therewith. Raymond adds that a martial settlement agreement is "usually . . . merged into the judgment of dissolution." ( In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 130.)
The issue of merger of a property settlement agreement into a dissolution judgment has engendered much litigation. ( In re Marriage of Jones (1987) 195 Cal. App. 3d 1097, 1103-1104, 241 Cal. Rptr. 231 [general discussion of judicial decisions regarding merger].) It is sometimes difficult to determine whether the parties and the family law court intended a merger. ( Flynn v. Flynn (1954) 42 Cal.2d 55, 58-59, 265 P.2d 865 ["In the absence of an express order [in the judgment] to perform all or part of the agreement, it may be difficult to determine whether or not a merger was intended"]; Garrett v. Garrett, supra, 258 Cal.App.2d. 407, 415.)
If the judgment expressly sets forth the property settlement and the court orders that it be performed, it is clear that a merger is intended. ( Garrett v. Garrett, supra, 258 Cal. App. 2d 407, 415.) In contrast, the parties may intend only "to have the validity of the agreement established" for res judicata purposes in any subsequent action on the agreement. ( Ibid .) In the latter situation, the parties may enforce the agreement by an action for breach of contract. ( In re Marriage of Lane, supra, 165 Cal. App. 3d 1143, 1147 ["If the court approves the terms of an agreement as being fair and equitable, its enforcement may rest in a cause of action for its breach"].)
Judicial decisions have discussed and applied the factors that the court should consider in determining the intent of the parties and the family law court. ( In re Marriage of Lane, supra, 165 Cal. App. 3d 1143, 1147-1148; Garrett v. Garrett, supra, 258 Cal. App. 2d 407, 415.) These factors include: recitals in the property settlement agreement regarding its presentation to the family law court; incorporation of the words of the settlement into the judgment or by attachment as an exhibit; any words of reference in the judgment to the property settlement; and any order in the judgment requiring the parties to perform the property settlement. ( Ibid. ) Resolution of the question of merger is an issue of law that we decide independently. ( Mitchell v. Marklund (1965) 238 Cal. App. 2d 398, 403, 47 Cal. Rptr. 756 ["The question of whether or not a property settlement agreement is incorporated into a divorce decree so as to merge therein is one of law"].)
Here the property settlement does not state that it will be presented to the family law court for approval and merger into the judgment. Neither does the judgment order the parties to carry out the provisions of the property settlement. It is true that the property settlement is attached to the judgment; nevertheless, without more, we cannot say that the parties and the family law court intended a merger. ( Garrett v. Garrett, supra, 258 Cal. App. 2d 407, 414-415 [no merger where property settlement and dissolution judgment do not refer to each other].)
Moreover, in her declaration for a default or uncontested dissolution, Marion requested the family law court only "to approve" the attached property settlement. It is likely the parties intended further proceedings to decide the issue of the amount of offset against Raymonds $ 150,000 compensation.
Although the current version of Judicial Council Form "Judgment" (FL-180) provides that "each attachment to this judgment is incorporated into the judgment, and the parties are ordered to comply with each attachments provisions," that language is absent from the 1988 judgment here. Indeed, its absence begs the question whether the parties and the family law court intended a merger.
II.
Alternatively, Raymond contends that principles of equity compel a conclusion that the property settlement merged into the dissolution judgment. Raymond adds that Marion drafted the property settlement and any ambiguity concerning merger must be construed against her. He also asserts that equity demands the property settlement be set aside because it is unjust and unfair.
We reject Raymonds attempt to raise these specific equitable arguments for the first time on appeal and fourteen years after the judgment. Moreover, the parties to a property settlement that has not merged into the dissolution judgment generally have a remedy for breach of contract if the settlement is not performed. ( In re Marriage of Lane, supra, 165 Cal. App. 3d 1143, 1147.)
The order is affirmed. Appellant shall bear costs on appeal.
We concur: YEGAN, J., COFFEE, J. --------------- Notes: We refer to the parties by their first names not from disrespect, but to ease the readers task. 2. Over Marions objections, we grant Raymonds request that we take judicial notice of the current version of Judicial Council Form "Judgment" (FL-180). (Evid. Code, §§ 459, 452, subds. (c), (e).)