Opinion
B293986
07-15-2020
In re the Marriage of REBECCA and SAM SHAKIB REBECCA SHAKIB, Respondent, v. SAM SOHRAB SHAKIB, Appellant.
Law Offices of Cuneo & Hoover, J. Nicholas Cuneo and Janina A. Verano; Greines, Martin, Stein & Richland, Robin Meadow and Eleanor S. Ruth for Appellant. Blank Rome and Glenn S. Buzard; Lewitt, Hackman, Shapiro, Marshall & Harlan and Vanessa Soto Nellis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LD021123) APPEAL from a judgment of the Superior Court of Los Angeles County. Mark A. Juhas, Judge. Affirmed. Law Offices of Cuneo & Hoover, J. Nicholas Cuneo and Janina A. Verano; Greines, Martin, Stein & Richland, Robin Meadow and Eleanor S. Ruth for Appellant. Blank Rome and Glenn S. Buzard; Lewitt, Hackman, Shapiro, Marshall & Harlan and Vanessa Soto Nellis for Respondent.
This interlocutory appeal arises out of a marital dissolution action. Appellant Sam Sohrab Shakib (husband) appeals from a trial court judgment following a bench trial resulting in a determination that a 1997 marital settlement agreement (MSA) between husband and Rebecca Shakib (wife) is not enforceable.
Pursuant to California Rules of Court, rule 5.392, husband filed a motion for leave to appeal, seeking resolution of two issues: (1) whether the MSA was enforceable in spite of the parties' failure to exchange declarations of disclosure; and (2) whether substantial evidence supported the trial court's determination regarding the date of separation. On December 21, 2018, this court granted husband's motion.
Following a trial that lasted several days, the trial court determined, as relevant to this appeal, that: (1) the parties entered the MSA in connection with the imminent dissolution of their marriage, not in an attempt to reconcile, therefore the parties were required to comply with the provisions of the Family Code requiring disclosures; and (2) the date of separation was February 15, 2015. We find no error and affirm the judgment.
BACKGROUND
The parties' relationship and prior proceedings
Husband and wife married on April 13, 1985. In March 1990, wife filed a petition for legal separation and obtained a temporary restraining order. In his response, husband requested dissolution of marriage. The case was subsequently dismissed in 1994.
On January 3, 1997, wife again filed for dissolution, having physically separated from husband. As with the first filing, this second filing was precipitated by an allegation that husband had been violent in the marriage. The court entered stipulated orders regarding child custody and support for the parties' two minor daughters, and awarded wife use and possession of the family residence, among other things. Shortly after wife filed the 1997 petition for dissolution, while the parties continued to live separate and apart, they entered into two agreements: a "Memorandum of Marital Settlement Agreement" dated August 8, 1997, and the MSA, which wife executed on August 29, 1997 and husband executed on September 3, 1997. At no time did either party provide the other with a declaration of financial disclosure.
The MSA divided community property, confirmed separate property held by husband and wife, provided for child custody and support, and divided assets and liabilities, among other things. The MSA recited that it was a "full, final and complete settlement and adjustment of all rights in and to all property owned by Husband and/or Wife," and that its purpose was to settle "all rights, duties and obligations concerning child support, custody and visitation; and, any and all claims and demands of whatever kind or nature that either may have against the other, including rights as to property hereinafter acquired." The MSA also contained a provision that "[a]ny reconciliation between the parties shall not cancel, terminate or modify the force and effect of the provisions of this [MSA] dealing with the present assets or obligations of either or both of the parties unless otherwise agreed in writing between the parties."
In September 1997, after the parties signed the above agreements, the parties executed a judgment drafted by husband's attorney. However, wife's attorney did not sign the judgment until January 1998, and it was never filed with the court. At the time all three documents were signed, the parties were each represented by competent counsel.
Sometime during the drafting and execution of the proposed judgment, the parties resumed marital relations. In approximately September 1997, wife became pregnant with the parties' third child. After the birth of their son in June 1998, the parties resumed living together and held themselves out as husband and wife for an additional 17 years. During that time, they went on vacations together as a family, and outwardly celebrated family milestones, holidays and other occasions together as a family.
On February 15, 2015, an incident of domestic violence allegedly occurred which allowed each party to obtain a domestic violence restraining order against the other. Wife left the family residence. She then reinstated dissolution proceedings, and sought to invalidate the MSA.
Trial
The trial court bifurcated issues for trial. In the first phase, the trial addressed: (1) the validity of the MSA; (2) the date of separation; and (3) husband's claim that wife forged his signature on an Arizona deed.
Husband's appeal does not challenge the trial court's ruling on the third issue, therefore we do not discuss it.
Regarding the first issue, it was wife's position that the MSA was unenforceable. She claimed that the MSA was invalid due to the parties' failure to exchange declarations of disclosure pursuant to Family Code section 2100 et seq. Alternatively, she argued that the MSA was unenforceable due to duress, undue influence, and misrepresentation by husband regarding his financial condition. Husband did not dispute the claim that declarations of disclosure were not exchanged between the parties, and argued that the MSA should be enforced for equitable reasons. Specifically, he argued that wife had waived any objection to the MSA by her conduct ratifying the agreement, and that she should be estopped from avoiding the agreement because she had not objected in the intervening 17 years. Husband also asserted passage of time defenses, including laches and the statute of limitations pursuant to Code of Civil Procedure section 343.
All further statutory references are to the Family Code unless otherwise indicated.
As to the second issue, wife argued that the date of separation was February 15, 2015, after the incident of alleged domestic violence. Husband argued that the date of separation was December 2, 1996.
Decision after trial
Following several days of trial, on July 17, 2018, the court took the matters before it in the first phase of trial under submission. On August 7, 2018, the court issued a tentative decision. Regarding the first issue of the enforceability of the MSA, the court determined that the MSA was signed in contemplation of divorce, thus requiring the parties to comply with the provisions of the Family Code regarding disclosures. Because the parties had not complied with those provisions, the MSA was therefore not enforceable in this dissolution proceeding.
As to the second issue, the date of separation, the court determined the date to be February 15, 2015. The court found the evidence overwhelming that subjectively, neither party thought the marriage was over in 1997. The court also considered certain objective evidence on this point.
The court entertained objections to its tentative decision, but on October 15, 2018, entered judgment without modifying its tentative decision.
On October 17, 2018, the court issued a Certificate of Probable Cause for Appeal on the two issues described above. On December 21, 2018, this court granted husband's motion for leave to appeal pursuant to rule 5.392 of the California Rules of Court.
DISCUSSION
Husband's primary argument is that the MSA is enforceable as a contract between spouses. He takes the position that the agreement is not subject to the exchange of statutory disclosures under the Family Code, but instead is subject to ordinary contract principles. Husband argues that because the MSA is not subject to statutory disclosures, this matter must be remanded for a determination of the equitable principles concerning enforcement.
Husband's position is grounded on his views that: (1) the MSA was never subsumed in a judgment; and (2) the MSA was signed amid a long-term reconciliation, not an imminent dissolution, thus disclosures were not required under In re Marriage of Burkle (2006) 139 Cal.App.4th 712 (Burkle).)
We discuss husband's arguments in detail below, and conclude that the trial court did not err in finding the MSA unenforceable in this dissolution proceeding.
I. Applicable law and standards of review
Because the parties dispute the applicability of the disclosure statutes to the MSA, we briefly review the laws at issue.
The Family Code statutory disclosure requirements reflect the public policy of the state to "marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation," to "ensure fair and sufficient child and spousal support awards," and to "achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage." (§ 2100, subd. (a).)
Some amendments have been made to the relevant Family Code section since the time that the parties signed the MSA in 1997. However, the parties agree that those changes are insignificant for the purposes of this discussion. Therefore, all quotations reflect the current statutory language.
In order to promote this policy, section 2100 mandates that "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties . . . together with a disclosure of all income and expenses of the parties." (§ 2100, subd. (c).) The purpose of this requirement is "so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts." (§ 2100, subd. (c).) Pursuant to section 2102, the parties have continuing obligations to update such disclosures until such time as the assets are distributed. (§ 2102, subd. (a).)
Section 2104 requires that parties serve each other with preliminary declarations of disclosure within 60 days of filing their respective pleadings in a dissolution action. Section 2105 requires that, absent an order for good cause, final declarations of disclosure be filed before or at the time the parties enter into an agreement for the resolution of property or support issues. Finally, section 2106 provides that, in the absence of certain exceptions, "judgment shall not be entered with respect to the parties' property rights without each party, or the attorney for that party in this matter, having executed and served a copy of the final declaration of disclosure and current income and expense declaration." Section 2106 prohibits a judgment from being entered in a marital dissolution action unless the parties have exchanged the statutorily mandated disclosures.
The only exceptions are where there is a stipulated mutual waiver under section 2105, a default judgment, or an order for good cause. Neither of the parties argues that any of these exceptions were applicable to the disclosure requirement in the 1997 proceeding.
The enforceability of the MSA turns on mixed questions of fact and law. We review questions of fact for substantial evidence, and review legal questions de novo. (20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.)
II. Burkle
Both parties repeatedly reference the Burkle case. Therefore, we provide a brief summary of the case.
In Burkle, a wife filed for dissolution of marriage in June 1997. By August of 1997, the parties were seriously considering reconciliation, and in September 1997 they resumed living together. (Burkle, supra, 139 Cal.App.4th at p. 718.) In November 1997, after they had resumed living together but while the dissolution action was still pending, they executed an agreement resolving all present and future financial issues between them. (Ibid.) They were not separated at the time they executed the agreement, "explicitly acknowledging in the agreement that they were 'currently residing together'" at one of their properties. (Id. at p. 749.) They continued to live together for the next four years. (Id. at p. 718.)
The parties separated again in April 2002, and in June 2003, the wife filed a second petition for dissolution of marriage in which she asserted the previous agreement between the parties was invalid and unenforceable. (Burkle, supra, 139 Cal.App.4th at pp. 722-723.) The trial court determined that the postmarital agreement at issue was enforceable. The wife appealed, arguing, among other things, that the agreement was unenforceable due to the parties' failure to comply with section 2100 et seq., mandating disclosure declarations in a dissolution proceeding.
The Court of Appeal affirmed, holding in part that the wife's argument that the agreement was unenforceable due to the parties' failure to comply with the disclosure statutes was without merit under the circumstances of that case. (Burkle, supra, 139 Cal.App.4th at p. 745.) The court held that the disclosure statutes "were not intended to and do not apply to a postmarital agreement that was not executed in contemplation of the imminent dissolution of the marriage." (Id. at p. 746.) In Burkle, the parties entered a postmarital agreement that did not contemplate imminent dissolution, but instead contemplated an effort to reconcile. (Ibid.) The wife's arguments did not convince the court to apply "a statute governing dissolution proceedings to circumstances in which the parties are not in fact using the judicial system to seek dissolution of their marriage." (Id. at p. 748.) The court noted, "[c]ertainly parties to a dissolution proceeding cannot be permitted to avoid Family Code section 2100's mandatory sworn disclosure declarations merely by asserting an intention to attempt reconciliation, executing an agreement without statutory disclosures, and then resuming the dissolution proceedings." (Ibid.) However, the court was "confident" that trial courts were "well equipped to determine whether a dissolution proceeding was in abeyance or whether one or both spouses were improperly attempting to avoid mandatory and nonwaivable disclosure requirements." (Ibid.) In order to make this assessment, the Burkle court provided several factors that the court must include in its assessment: (1) "the bona fides of the spouses' intention to attempt reconciliation"; (2) "their intention to hold the dissolution proceeding in abeyance"; (3) "the length of time during which the spouses reside together, after initiating the dissolution proceeding, in connection with their attempts to reconcile"; (4) "the duration of any actual reconciliation"; and (5) "the length of time during which no activity has occurred in the dissolution proceeding." (Id. at pp. 748-749, fn. omitted.)
III. The enforceability of the MSA
Husband's first argument is that the MSA is not subject to the mandatory disclosure statutes, but instead is governed by ordinary contract principles. Husband asserts that the MSA is simply a contract between spouses. Husband claims that the trial court erred in failing to address the enforceability of the MSA under generally applicable contract principles.
The matter before this court is not a breach of contract action, rather it is a marital dissolution action. The question before the trial court was whether the MSA would be enforceable as part of the judgment in this marital dissolution. To begin its inquiry regarding the enforceability of the MSA, the trial court was first required to determine whether the disclosure statutes applied to the MSA. Section 2100 et seq. describe a public policy of the state which is mandatory in dissolution actions, with limited exceptions. The determination as to whether the disclosure statutes applied to the MSA turned on the context surrounding the parties' drafting and execution of the MSA. (Burkle, supra, 139 Cal.App.4th at p. 748 [disclosure statutes govern dissolution proceedings in which the parties are using the judicial system to seek dissolution of their marriage].) The trial court's determination that the MSA was an agreement entered into in anticipation of dissolution was a largely factual inquiry.
In determining whether the disclosure statutes applied, the trial court took extensive evidence regarding the parties' thoughts and actions during the time that the MSA was drafted and signed. The court weighed the evidence and determined that the MSA was executed and signed in contemplation of divorce, not in contemplation of reconciliation. Thus, the mandatory disclosure statutes were applicable.
Having determined that the disclosure statutes applied to the MSA because it was entered in a dissolution action in anticipation of dissolution of marriage, the trial court then had to determine the significance of the parties' failure to comply. Based on the evidence presented the trial court properly concluded that due to the parties' failure to comply with the disclosure statutes, the MSA was not enforceable as part of the judgment in this dissolution action. (Burkle, supra, 139 Cal.App.4th at p. 747 ["the Legislature's own words show it intended the asset disclosure requirements of Family Code section 2100 et seq. to apply to property agreements executed in connection with or in contemplation of a judgment of dissolution of the marriage"].)
IV. The lack of a judgment in the prior dissolution action does not change the result
Although husband admittedly did not raise this issue before the trial court, husband now claims that because the 1997 MSA was never reduced to judgment, it is now enforceable as an ordinary interspousal contract. Husband's argument hinges on the parties' failure to bring the dissolution action to judgment in 1997. He argues that under sections 2106 and 2107, failure to exchange disclosures only enables a party to a resulting judgment to seek to set aside the judgment. Because the contract between the parties was never reduced to judgment, husband argues, it should now be treated as an ordinary interspousal agreement.
Nothing in the Family Code suggests that the disclosure statutes are inapplicable where the dissolution action is not ultimately reduced to judgment. In fact, section 2104 provides that preliminary disclosures must be filed within 60 days of each party's appearance in the dissolution proceeding. (§ 2104, subds. (a)-(f).) Section 2105 requires an exchange of final declarations prior to the entry of an agreement for division of property or trial in the matter. (§ 2105, subd. (a).) And section 2106 "restricts the actions of a court when final disclosure declarations are not provided." (In re Marriage of Evans (2014) 229 Cal.App.4th 374, 382.) Simply put, "the petition prompts the requirement for an exchange of preliminary disclosure declarations." (Id. at p. 383-384.) In other words, the mandatory disclosure statutes become applicable as soon as a dissolution proceeding has commenced. Whether the proceeding ultimately proceeds to judgment is not a relevant factor in determining whether the disclosure requirement is triggered.
In support of his position, husband points to several relevant code sections which specify that one of the consequences of failure to comply with the disclosure statutes is to set aside the resulting dissolution judgment. (§ 2106 ["judgment shall not be entered with respect to the parties' property rights without each party, or the attorney for that party in this matter, having executed and served a copy of the final declaration of disclosure and current income and expense declaration"]; § 2107 subd. (d) ["if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment"]; § 2105, subd. (c) ["In making an order setting aside a judgment for failure to comply with this section, the court may limit the set aside to those portions of the judgment materially affected by the nondisclosure"]; § 2104 ["The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury"]; § 2107, subd. (c) [authorizing monetary sanctions for noncompliance].) These statutes do not suggest that a marital settlement agreement consummated without the required disclosures is enforceable in a second, later dissolution action simply because it was never reduced to judgment in the first action. Instead, these statutes underscore the trial court's decision that the MSA was not enforceable in the first action, and is not enforceable in the present action, due to the parties' failure to comply with the disclosure statutes.
Section 2128, subdivision (b), is also irrelevant. Husband points out that the statue provides that "Nothing in this chapter changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment." However, section 2128 is included in Chapter 10, which is captioned "Relief from Judgment," and restricts its scope to the contents of the chapter in which it is included. As discussed throughout, wife is not seeking relief from judgment, therefore this provision is inapplicable. Section 2128 does not permit parties to disregard the mandatory disclosure statutes when entering an agreement in anticipation of dissolution.
Husband points out that a former version of section 2106 provided that "no agreement is enforceable, and no judgment shall be entered" without the required disclosures. (Compare Stats. 1993, ch. 219 (A.B. 1500), §§ 55 & 107, repealing former Civ. Code, § 4800.10, subd. (d) and reenacting as Fam. Code, § 2106, with stats 1993, ch. 1101 (A.B. 1469), § 8, italics added [later statute deleting the italicized language referencing an agreement's enforceability].) Husband argues that the Legislature's decision to omit the italicized language, and to maintain that omission for the past 25 years, signals an intent that the provisions relating to disclosures not be used to invalidate an agreement between spouses.
While the Legislature removed the broad language relating to enforcement of all agreements, we decline to assume that the Legislature meant to exclude from the disclosure requirements marital settlement agreements in dissolution actions under the circumstances of this case. In fact, elsewhere in the code the Legislature has required "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest" as well as "a continuing duty to immediately, fully, and accurately update and augment that disclosure . . . so that at the time the parties enter into an agreement for the resolution of any of these issues, . . . each party will have a full and complete knowledge of the relevant underlying facts." (§ 2100, subd. (c).) Here, where the parties entered into the MSA in order to resolve their earlier dissolution action, this language mandates that they were first required to comply with the disclosures. Any other outcome would undermine the public policy and the purpose behind the disclosure statutes. Husband cites no authority suggesting that the deletion of the italicized language meant that parties to a dissolution action could avoid the disclosure requirements by signing an agreement for the distribution of property but avoiding a formal judgment. It is more likely that the language was deleted as unnecessary, as section 2105 already mandated that disclosures were necessary before execution of a marital settlement agreement in a dissolution action.
As set forth above, section 2105 provides that "before or at the time the parties enter into an agreement for the resolution of property or support issues . . . or, if the case goes to trial, no later than 45 days before the first assigned trial date . . . each party, or the attorney for the party in this matter, shall serve on the other party a final declaration of disclosure and a current income and expense declaration . . . ."
The authorities cited by husband do not support his position that the parties' failure to bring the matter to formal judgment renders the MSA enforceable under general contract principles. Instead, the authorities cited by husband recognize the critical importance of the factual context surrounding the signing of an interspousal agreement. In re Marriage of Egedi (2001) 88 Cal.App.4th 17, involved a marital settlement agreement that the trial court refused to enforce on the ground that their attorney did not adequately disclose a conflict of interest. In reversing, the Court of Appeal noted in dictum that a trial court may set aside a marital settlement agreement under the principles of traditional contract law. (Id. at pp. 22-23.) The case does not suggest that an MSA should be enforced in a dissolution action under general contract principles where the parties did not perform the required statutory disclosures.
In re Marriage of Jones (1987) 195 Cal.App.3d 1097 (Jones) is also not helpful to husband. In Jones, a dissolution judgment was set aside on the ground of extrinsic fraud. The marital settlement agreement, which had been merged into the judgment, was thus also set aside. (Id. at p. 1104.) The court noted that "[m]arital settlement agreements merged into interlocutory judgments become part of a judgment and enforceable by contempt. Marital settlement agreements not merged into an interlocutory decree are enforceable as a contract. [Citations.]" (Ibid.) The case does not suggest that an MSA entered without the required disclosures is enforceable under the present circumstances.
In sum, the trial court did not err by declining to apply general contract principles, including waiver and estoppel, to determine the enforceability of the contract. Once it found that the MSA was executed in contemplation of dissolution, the trial court correctly determined that the MSA was subject to the statutory scheme set forth in section 2100 et seq. Because the parties did not comply with the disclosure requirements, the MSA was not enforceable.
V. Substantial evidence supports the trial court's determination that the MSA was entered in the context of dissolution
Husband argues that the disclosure statutes are inapplicable because the MSA was signed amid a long-term reconciliation rather than as part of an imminent dissolution. In support of this argument, husband relies heavily on Burkle, supra, 139 Cal.App.4th 712. Burkle involved an agreement between spouses that was formed in the context of a reconciliation. Husband recognizes that Burkle contemplates a factual analysis to determine whether the parties were contemplating reconciliation or imminent dissolution. Husband argues that instead of applying the Burkle analysis, the trial court here relied on a hyper-narrow analysis that appeared to rely solely on husband's testimony at the moment he signed the MSA, while ignoring wife's conflicting testimony. Husband argues that the judgment must therefore be reversed and remanded for a proper Burkle analysis.
A. The Burkle analysis
As set forth above, the Burkle court found that trial courts should determine whether the disclosure statutes apply to an agreement in a case such as this. In doing so, trial courts must resolve the factual question of whether the agreement was executed in contemplation of the imminent dissolution of the marriage or whether the dissolution proceeding was in abeyance. (Burkle, supra, 139 Cal.App.4th at p. 748.) In order to make this assessment, the Burkle court provided several factors that the court must include in its assessment: (1) "the bona fides of the spouses' intention to attempt reconciliation"; (2) "their intention to hold the dissolution proceeding in abeyance"; (3) "the length of time during which the spouses reside together, after initiating the dissolution proceeding, in connection with their attempts to reconcile"; (4) "the duration of any actual reconciliation"; and (5) "the length of time during which no activity has occurred in the dissolution proceeding." (Id. at pp. 748-749, fn. omitted.)
B. Substantial evidence supports the trial court's analysis of the facts under Burkle
In its statement of decision, the trial court undertook an analysis of the factors in Burkle and concluded that the MSA was an agreement in contemplation of dissolution, not reconciliation. The court relied on specific testimony presented during the trial of this matter.
As to the first factor, the intention to reconcile, the trial court noted that during the formation and execution of the MSA, the parties in this matter did not expressly state an intention to reconcile. On the contrary, the MSA expressly stated that "Differences have arisen in the marriage, which the parties have determined to be irreconcilable. As a result, the parties have agreed to live separate and apart, acknowledging their marital relationship cannot be restored or re-established." Husband's attorney also provided testimony that it was his understanding that the MSA was intended to be a settlement of the marriage, not a postnuptial agreement. Additionally, the parties executed a proposed judgment, further bolstering the understanding that the marriage was over.
As to the second factor -- the parties' intention to hold the dissolution proceeding in abeyance -- the trial court also found that this factor dictated against enforcement of the MSA. Unlike the parties in Burkle, who had reunited and were living together when they signed the agreement -- the parties in this matter were separated at the time of execution of the agreement. Husband was not living in the family residence due to an incident of alleged domestic violence. At trial both parties acknowledge that they were not living together at the time the agreement was signed. Thus, there did not appear to be any objective evidence of reconciliation, or intention to hold the dissolution proceeding in abeyance, at the time the agreement was signed.
The third factor is the length of time the parties lived together after initiating the dissolution proceeding, in connection with their attempt to reconcile. In this matter, the evidence is undisputed that the parties did not live together at the time that they entered the agreement. Both parties signed the MSA while living apart, and the parties' attorneys drafted and executed a judgment that was never filed. The parties did not move back together permanently until June 1998, eight or nine months after the agreement was executed by the parties.
Husband took the position at trial that the parties permanently separated on December 2, 1996. Husband testified that despite the 17 years that he and wife held themselves out as family following the MSA, he never felt that they reconciled. Thus, husband's own testimony supports the trial court's decision that the parties were not reconciled at the time they signed the MSA.
The trial court discussed the fourth and fifth factors together -- duration of reconciliation and length of time during which no activity occurred in the dissolution proceeding. While the trial court found that the date of reconciliation was unclear, the parties waited approximately 17 years before taking any further action to dissolve the marriage.
Viewing the Burkle factors as a whole, the trial court determined that the dissolution proceeding was not "in abeyance" at the time the parties entered into the MSA. Instead, the parties entered into the agreement in connection with the then imminent dissolution of their marriage.
Husband also argues that the parties included a reconciliation clause in the MSA. Husband suggests that the inclusion of this clause bolsters his argument that the parties were considering reconciliation at the time they entered the MSA. It does not. The clause states: "Any reconciliation between the parties shall not cancel, terminate or modify the force and effect of the provisions of this Agreement dealing with the present assets or obligations of either or both of the parties unless otherwise agreed in writing by the parties." The clause does not suggest that the parties were reconciling, but simply allows for a hypothetical reconciliation. In the absence of compliance with the disclosure statutes, this clause, along with the rest of the MSA, was not enforceable because it was included in an agreement in a dissolution action in contemplation of dissolution of marriage.
The trial court's decision, supported by substantial evidence, reflects a careful review of the evidence and consideration of each of the five factors set forth in Burkle.
C. The trial court's decision was not overly narrow
Husband argues that the trial court failed to properly apply the Burkle analysis. He states that the trial court took an overly narrow approach, focusing only on the parties' intentions at the moment they signed the MSA, and failing to assess the "holistic environment" surrounding the parties' negotiation and formation of the agreement. Husband depicts this as looking at a "single, isolated frame in this colorful movie." Husband argues that there was abundant evidence that the parties were in fact mid- reconciliation -- a reconciliation that lasted 17 years. Husband asks that we reverse and remand for a proper Burkle analysis.
We disagree that the Burkle test seeks to discern the big picture regarding the parties' relationship. The Burkle test is designed to determine whether the agreement at issue was entered into at a time when the parties were "using the judicial system to seek dissolution of their marriage." (Burkle, supra, 139 Cal.App.4th at p. 748.) Thus, it asks only whether the agreement was entered when the dissolution proceeding was in abeyance, and the parties were making a good faith effort to reconcile -- or whether it was entered in connection with the contemplated end of the parties' marriage. (Id. at p. 749.) This is not, as husband describes it, an "isolated frame in this colorful movie," but it does focus heavily on the circumstances surrounding the formation and signing of the agreement. The test considers the subsequent events as well, which, as husband points out, in this case included a very lengthy reconciliation. However, the trial court was not required to put disproportionate emphasis on this factor. The record shows that the court considered the reconciliation, as it was required to do. The trial court appeared to view the facts as evidencing that the reconciliation occurred sometime after the MSA was signed. As set forth above, in spite of the subsequent lengthy reconciliation, substantial evidence supports the court's conclusion that the balance of the factors showed an intent to dissolve the marriage at the time of the MSA. We decline to find that the trial court improperly weighed the Burkle factors.
D. The court's factual determinations are not irreconcilable
At trial, the court was presented with two questions: (1) whether the MSA was enforceable; and (2) the parties' date of separation. Husband asserts that the trial court's answers to these two heavily factual questions are irreconcilable. (Gebert v. Yank (1985) 172 Cal.App.3d 544, 550 ["a judgment or verdict which is inherently and logically inconsistent cannot be upheld"]); City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682 (Horton) ["'a factfinder may not make inconsistent determinations of fact based on the same evidence'"].)
First, the trial court determined that the MSA was unenforceable due to the parties' failure to comply with the statutory disclosure requirements. In so finding, the court found inapplicable the Burkle court's conclusion that such disclosures are not necessary where an agreement is signed pending reconciliation while the dissolution action is in abeyance. However, the court simultaneously found that the parties' actual date of separation was not until February 2015. Husband argues that these two conclusions are fatally irreconcilable.
Wife points out that while husband objected to the trial court's statement of decision in this matter, husband did object on this ground. Husband argues in reply that pursuant to Horton, supra, 126 Cal.App.4th at page 682, contradictory conclusions cannot be upheld as a matter of law. We therefore briefly address husband's argument.
In determining the date of separation, the trial court used the standard set forth in In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930 (Manfer), which states:
"'[T]he date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the
legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems.' [Citation.]"
The Manfer court indicated that "'All factors bearing on either party's intentions "to return or not to return to the other spouse" are to be considered. . . . No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court.' [Citation.]" (Manfer, supra, 144 Cal.App.4th at p. 930.)
At trial, wife argued that the parties' date of separation was February 15, 2015, following an incident of alleged domestic violence. Husband argued that the date of separation was December 2, 1996, the date wife listed as the date of separation on the 1997 petition. The trial court found in favor of wife on this issue, holding that the date of separation was February 15, 2015.
In so finding, the trial court pointed to evidence of the parties' subjective intent. Referring to the 1996-1997 time period, the court noted that "[t]he evidence is overwhelming that subjectively, neither party determined that the marriage was over." In addition, the court noted, the parties did not objectively separate either. After the birth of their son in June 1998, the parties began living together again. They maintained a joint bank account, and after they began living together again, hosted family gatherings and holidays together.
In his motion to appeal, husband raised the issue of whether substantial evidence supported the trial court's decision as to the finding that the parties separated in 2015. However, husband does not specifically address this issue in his appeal. We therefore do not consider it. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.)
Contrary to husband's position, this does not represent a "reversal" of the court's previous finding regarding the nature of the MSA. Husband contends that the MSA could not have been entered into in contemplation of divorce, while the parties simultaneously intended to reconcile. However, a close analysis of the two factual tests reveal that they do not present conflicting results under the circumstances of this case.
In order to determine whether the disclosure statutes applied to the MSA, the court was required to look at more objective factors concerning the court proceedings as they existed at the time the MSA was signed. Wife had filed for divorce, and neither party made any objective indication of an intention to reconcile. The parties were not living together. Nor did they ever seek to hold the dissolution proceedings in abeyance. In fact, the parties proceeded through signing the MSA to signing the judgment. The judgment, however, was never filed.
In determining the date of separation, the trial court considered more closely the parties' actions over the long term. Both parties testified that during the prior proceedings, they believed there was a possibility of reconciliation. And of course, their actions after the birth of their son show that the rift in their relationship at the time of the MSA was not final. This long-term view of the parties' subjective intent does not irreconcilably conflict with the court's factual determinations regarding the parties' use of the court system. Husband does not dispute that the divorce proceedings were not in abeyance at the time the parties signed the MSA, and they were actively using the courts to dissolve their marriage. Although the parties later reconciled, the trial court was required to assess the nature of the MSA during the time that it was created.
The trial court in this matter was required to make factual determinations regarding a complex relationship. The first determination was more narrowly focused on the parties' acts at the time they negotiated and signed the MSA. The second determination was a broader view of the parties' subjective feelings and actions over the course of their relationship up to the present time. We decline to second guess the trial court's determinations, as substantial evidence supported each analysis. The two conclusions are not fatally irreconcilable.
VI. The MSA may not be enforced through the other bases raised by husband
Husband raises several other arguments to support his position that the MSA should be enforceable in this dissolution action. First, husband argues for application of section 2122, subdivision (f), which provides that "[a]n action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply." Husband argues that the "action" is wife's claim that the MSA is unenforceable as part of her revived petition for dissolution. Thus, husband argues, the statute of limitations began to run the moment she signed the MSA without asking for, or serving, those disclosures.
We disagree with husband's description of this dissolution action as an "action based on failure to comply with the disclosure requirements." (§ 2122, subd. (f).) This is an action for dissolution of marriage. In order to determine whether the MSA is enforceable as part of the judgment in this dissolution action, the trial court was required to assess compliance with the mandatory disclosure requirements. Husband raises no authority to the contrary.
Further, as wife points out, husband failed to raise this argument in the trial court. Husband thus forfeited his statute of limitations argument due to his failure to timely object. (Mysel v. Gross (1977) 70 Cal.App.3d Supp. 10, 15 [statute of limitations must be affirmatively invoked in the lower court or else it is waived].) We also note that husband has affirmatively argued that wife may not rely on section 2122 because it only applies to motions to set aside judgments, and the MSA was never reduced to judgment. Wife is not seeking to set aside a judgment, nor any of the other remedies set forth in section 2107, because there is no prior judgment. For these reasons, husband's timeliness argument based on section 2122 fails.
Next, husband argues that a party cannot invoke the protections of the financial disclosure statutes unless she herself has complied. In support of this argument, husband cites three cases, In re Marriage of Fong (2011) 193 Cal.App.4th 278, 289 (Fong), In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 528 (Steiner) and In re Marriage of Jones (1998) 60 Cal.App.4th 685, 694 (Jones). None of these cases convinces us that wife's noncompliance with the disclosure statutes renders the MSA enforceable in this case. Fong involved an appeal for monetary sanctions due to a failure to comply with disclosure obligations. (Fong, at p. 282.) The Fong court held that the wife was not entitled to the award of sanctions under section 2107, subdivision (c) because that statute only authorizes an award in favor of a complying party, and the wife was not a complying party at the time her motion was filed. (Ibid.) This case does not involve sanctions, nor has wife sought sanctions under section 2107, subd. (c). Steiner similarly involved a motion brought pursuant to section 2107, although in that case, a motion to set aside a judgment. Wife has not brought a motion to set aside a judgment. Husband has relied on the absence of a judgment in this matter. The provisions of section 2107 are not applicable here. Jones involved the issue of whether failure to comply with the disclosure statutes mandates vacating a judgment regardless of whether the error was harmless. (Jones, at p. 694.) Again, no judgment was entered in the 1997 dissolution action. None of the cases cited suggest that the disclosure requirements should be cast aside in this dissolution action.
Husband next argues that regardless of statutory noncompliance, principles of waiver, ratification, laches and estoppel apply. Husband claims that Burkle authorizes the use of the doctrines of ratification and estoppel to enforce the MSA here. The Burkle court affirmed the trial court's determination that the doctrines applied to preclude the wife from claiming the postmarital agreement at issue in that case was unenforceable. (Burkle, supra, 139 Cal.App.4th at p. 754.) Significantly, the agreement at issue in Burkle was a postmarital agreement, not an agreement entered into in anticipation of dissolution. Thus, the decision in Burkle does not create authority for the use of those doctrines here. Husband cites no authority for the proposition that a marital settlement agreement, such as the one at issue here, entered in a dissolution proceeding in anticipation of dissolution, may be ratified despite the parties' failure to comply with the disclosure statutes.
As to estoppel, husband argues that this doctrine may be used to "bind a party to what would otherwise be an enforceable contract." (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 49-51.) Blix Street involved a dispute over a settlement agreement in a lawsuit regarding a licensing agreement. It does not stand for the proposition that estoppel may be used to avoid the statutory disclosure requirements set forth in the Family Code in this marital dissolution action.
Husband asserts that wife got what she bargained for in the MSA, and took advantage of that agreement for 17 years. However, the record reflects that at some point -- the parties' testimony was in dispute on the exact timing -- he stopped paying child support under the MSA. Thus it appears that husband was not fully complying with the MSA during the 17-year reconciliation. Husband admits that certain provisions of the MSA, such as the child custody and support provisions, are now obsolete, however, he seeks to selectively enforce the community and property division aspects of the agreement.
We decline to address husband's factual arguments regarding the application of the elements of estoppel. Husband has failed to show that the doctrine is legally applicable to enforce an agreement signed in a dissolution action in violation of the mandatory disclosure statutes. Had he done so, it would be in the trial court's realm to make the factual findings necessary to support imposition of the doctrine.
Husband explains the doctrine of laches as "'"unreasonable delay on the part of the plaintiff in bringing the action, which may show abandonment or waiver of a right, or the acquiescence by the plaintiff in the defendant's fault.". . .' [Citations.]" (Connolly v. Trabue (2012) 204 Cal.App.4th 1154, 1163.) He adds that laches may apply to divisions of community property in the context of dissolution proceedings. In support of this position, husband cites Simon v. Simon (1985) 165 Cal.App.3d 1044 (Simon), which involved a wife's complaint for partition and declaratory relief as to property, brought nine years after the judgment of dissolution of the parties' marriage. (Id. at p. 1046.) Under the circumstances of that case, the wife's actions created an "inexcusable delay . . . in seeking relief and resulting prejudice from that delay to the defendant. [Citation.]" (Id. at p. 1049.) Simon did not involve failure to comply with the disclosure statutes, which were not relevant and had not yet been enacted in their present form. (Chapter 9, Disclosure of Assets and Liabilities, §§ 2100-2113, added by Stats. 1993, ch. 219, § 107.)
Here, wife has filed for dissolution of an approximately 30-year marriage. She cannot be accused of laches in failing to seek dissolution earlier. This dissolution action did not arise until the incident of alleged domestic violence in 2015, drove the parties apart. In this dissolution action, wife seeks a final judgment concerning property issues. The ultimate judgment is subject to the disclosure statutes. Under the circumstances, she cannot be accused of laches in failing to point out earlier that the MSA was not enforceable in this dissolution action.
VII. Wife need not show prejudice
Husband points to caselaw which provides that when a party seeks to set aside a dissolution judgment on the grounds of noncompliance with the disclosure statutes, the appellate court cannot reverse unless the appellant shows prejudice from the nondisclosure. (Steiner, supra, 117 Cal.App.4th at pp. 526-528; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 336-337; Jones, supra, 60 Cal.App.4th at pp. 694-695.) All three cases involve a party's attempt to set aside a judgment of dissolution, which makes all three cases distinguishable from this one.
Husband acknowledges this distinction, but argues that if wife were the appellant and because the trial court resolved to enforce the MSA and entered judgment pursuant to its terms, this court could properly hold that any error was harmless. Husband adds that wife failed to show any material harm from husband's failure to serve disclosures.
Wife is not the appellant in this matter, thus the concept of harmless error is not applicable. Wife is not asking this court to reverse the trial court's decision. Thus, she has no burden to show error.
Husband also argues that wife's claims, made at the trial court level, that the MSA should not be enforced due to fraud, duress, and undue influence were untimely under Civil Code section 337, subdivision (c). However, the trial court specifically declined to reach these issues, given its decision that the MSA was unenforceable for other reasons. We decline to address wife's claims of fraud, duress and undue influence in detail, but find that the trial court did not err in declining to address the timeliness of these issues. Because the MSA was unenforceable in this dissolution action due to the parties' failure to exchange disclosures, wife's claims of fraud, duress, and undue influence were irrelevant -- as was the timeliness of those claims.
DISPOSITION
The judgment is affirmed. Wife is entitled to her costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST