Robbins
v.
Robbins (In re Marriage of Robbins)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIASep 13, 2018
D072592 (Cal. Ct. App. Sep. 13, 2018)

D072592

09-13-2018

In re the Marriage of BARRY and MELISSA ROBBINS. BARRY ROBBINS, Appellant, v. MELISSA ROBBINS, Respondent.

Dennis Temko for Appellant. No appearance for Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN163804) APPEAL from an order of the Superior Court of San Diego County, Patti C. Ratekin, Commissioner. Reversed and remanded with directions. Dennis Temko for Appellant. No appearance for Respondent.

I.

INTRODUCTION

Barry Robbins (Barry) and his former wife, Melissa Robbins (Melissa), executed a marital settlement agreement (MSA) that was incorporated into a judgment. The MSA contained a paragraph pertaining to spousal support that stated in relevant part, "It is the express intent of the parties that spousal support and the Court's jurisdiction to award spousal support shall terminate in all events on 9/1/16." The spousal support paragraph also provided that, upon the effective date of the MSA, the trial court would "be immediately and forever divested of jurisdiction to extend jurisdiction for spousal support."

Notwithstanding these provisions, the trial court granted Melissa's request to "[e]xtend spousal support jurisdiction beyond September 1, 2016." The court recognized that the spousal support provisions were "sufficient standing alone . . . to find that the parties bargained for a termination of spousal support." However, the court noted that a separate paragraph in the MSA pertaining to family support contained "no termination language." Thus, according to the court, the family support provision "appear[ed] to allow for an extension of the family support" beyond September 1, 2016. The court further reasoned that the spousal support and family support provisions were "contradictory" and that the MSA was thus "ambiguous" as to whether it permitted an award of spousal support beyond September 1, 2016. Citing case law supporting the proposition that an ambiguous MSA and judgment should be construed in favor of extending jurisdiction to award spousal support, the trial court concluded that it possessed jurisdiction to award spousal support beyond September 1, 2016, and granted Melissa's request to order spousal support beyond this date.

" 'Family support' means an agreement between the parents, or an order or judgment, that combines child support and spousal support without designating the amount to be paid for child support and the amount to be paid for spousal support." (Fam. Code, § 92.)
Unless otherwise specified, all subsequent statutory references are to the Family Code.

Barry appeals the trial court's order. He argues on appeal that the MSA and judgment unambiguously prohibit the trial court from exercising jurisdiction to award spousal support beyond September 1, 2016. We agree. The MSA's spousal support paragraph clearly and unambiguously terminated the trial court's jurisdiction to award spousal support on September 1, 2016 and prohibited the court from exercising its jurisdiction to extend the period of time during which spousal support could be awarded. Further, since family support is combined child and spousal support (§ 92), and the trial court's jurisdiction to award spousal support ended on September 1, 2016, the MSA may not be reasonably interpreted to authorize an award of family support beyond this date. Contrary to the trial court's conclusion, when read together, the MSA's family support provision complemented the spousal support provision and did not render the MSA ambiguous. Accordingly, we reverse the trial court's order and remand the matter to the trial court with directions to enter a new order that terminates spousal support as of September 1, 2016.

Melissa did not file a respondent's brief and Barry has waived oral argument. Accordingly, we decide the appeal based on the record and Barry's' opening brief. (See Cal. Rules of Court, rule 8.220(a)(2).)

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Marriage and separation

Barry and Melissa married in September 1999. They have two children together—B., born in September 2000, and Z., born in December 2001. The parties separated in January 2011. Barry filed a petition for dissolution that same month. B. The spousal support and family support provisions of the MSA

After working with a mediator, the parties executed an MSA in September 2011.

Paragraph 5 of the MSA provides:

"SPOUSAL SUPPORT RESERVATION OF JURISDICTION - WIFE
"Upon termination of family support, the Court shall retain jurisdiction over the issue of Wife's right to receive spousal support. This reservation of jurisdiction shall terminate on further Court order, Wife's remarriage, the death of either party or 9/1/16, whichever first occurs. It is the express intent of the parties that spousal support and the Court's jurisdiction to award spousal support shall terminate in all events on 9/1/16. It is further the express intent of the parties that upon the effective date of this Agreement, the Court shall be immediately and forever divested of jurisdiction to extend jurisdiction for spousal support, and the parties specifically waive any rights they may have under ln re Marriage of Vomacka (1984) 36 Cal. 3d 459 [(Vomacka)], In re Marriage of Ousterman

(1996) 46 Cal. App. 4th 1090 [(Ousterman)] and In re Marriage of Brown (1995) 35 Cal. App. 4th 785 ([Brown]). Husband and Wife understand that they may never petition for extension of this spousal support order and that neither this nor any other court shall have the power or right to extend spousal support beyond 9/1/16." (Underscore omitted.)


Paragraph 4 of the MSA contained a nearly identical spousal support provision in favor of Barry.

Paragraph 9 of the MSA provides in relevant part:

"FAMILY SUPPORT
"A. Husband shall pay to Wife, as and for taxable family support, the sum of $2,895 every two weeks for a total of $6,271 per month commencing Husband's first payday after 3/1/11 and continuing each and every payday thereafter until he is no longer entitled to tax benefits resulting from the payment of property taxes and mortgage interest. Thereafter he shall pay, as and for taxable family support, the sum of $2,263 every two weeks, for a total of $4,903 per month, continuing each and every payday until written agreement of the parties to the contrary, further order of the Court or the death of either party. As and for nontaxable family support, and in addition to the provisions of section D. herein,[] commencing 3/1/11, Husband shall pay to Wife 7% of the gross amount of any bonuses or other compensation he receive[s], within 24 hours of receipt and accompanied by a pay stub to substantiate the computation until written agreement of the parties to the contrary, further order of the Court or the death of either party. Family support is modifiable with changes in circumstances and, in any event, the parties agree to review the matter on or about 9/1/16."


Section D provides, "Husband agrees to pay 100% of the costs for the children's baseball, basketball, piano lessons, drum lessons and Hebrew school expenses, at levels comparable to expenses at the time of executing this Agreement."

The MSA was incorporated into an October 2011 stipulated judgment of dissolution. C. The trial court's September 2014 order awarding allocated child and spousal support

In March 2014, Barry filed a request that "the court terminate family support, order Guideline child support,[] and set spousal support at zero with a termination date of 9/1/16 pursuant to the parties' [MSA]."

In In re Marriage of Sorge (2012) 202 Cal.App.4th 626, this court explained the concept of guideline child support as follows:

" '[C]ourts are required to calculate child support under the statutory guidelines. [Citations.] "[A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes. [Citations.]" [Citation.] The guideline amount of child support, which is calculated by applying a mathematical formula to the parents' incomes, is presumptively correct. [Citations.]' [Citation.]" (Id. at pp. 640-641.)


In September 2014, the court entered an order that awarded allocated child and spousal support as follows:

"Commencing July 1, 2014, the Husband shall pay the Wife child support in the sum of $1,875.00 per month . . . ."
"Husband shall pay to Wife for her support and maintenance, the sum of $1,030.00 per month, commencing July 1, 2014 . . . ."
D. Melissa's December 2014 motion

By ordering allocated child and spousal support, the order impliedly terminated family support. (See § 92 [defining family support as an order that "combines child support and spousal support without designating the amount to be paid for child support and the amount to be paid for spousal support" (italics added)].)

In December 2014, Melissa filed a motion in which she requested that "the court extend its jurisdiction over spousal support beyond September 1, 2016." Melissa requested in the alternative that the spousal support provision in the MSA be set aside or that the entire agreement be set aside if the court were to conclude that setting aside a portion of the agreement was inequitable.

In a supporting brief, Melissa contended that the trial court should interpret the MSA in favor of permitting the court to exercise jurisdiction to award spousal support beyond September 1, 2016. With respect to her set aside requests, Melissa claimed that certain declarations of disclosure pertaining to the parties' income and assets were not completed in connection with the execution of the MSA, among other arguments.

Barry filed an opposition to Melissa's request. Barry contended that the MSA unambiguously precluded the court from exercising jurisdiction to award spousal support beyond September 1, 2016 and that the motion to set aside was untimely, among other arguments. E. The trial court's final order

After extensive briefing and numerous hearings, the trial court entered a final order granting Melissa's motion to extend spousal support jurisdiction and denying her motion to set aside either the spousal support provision of the MSA or, in the alternative, the entire MSA. The court's May 22 order states in relevant part:

"The contradictory provisions in the [MSA] leaves the court in a difficult position. The provisions in the spousal support provision of the Stipulated Judgment are sufficient standing alone . . . for the court to find that the parties bargained for a termination of spousal support. However, the Family Support provision of the judgment appears to allow for an extension of the family support because it has no termination language and therefore makes the agreement ambiguous. Ambiguous language in a [MSA] and stipulated judgment should be construed in favor of spousal support. In re Marriage of Schu (2014) 231 Cal.App.4th 394 [(Schu)]. The court

finds that due to the ambiguity in the agreement between the spousal support provision and the family support provision that it is appropriate to extend the court's jurisdiction to extend jurisdiction [sic] beyond the date set for termination in the agreement. The court is disturbed by the conduct of the mediator in failing to actually have the parties exchange Preliminary Declarations of Disclosure. The Set Aside motion is denied as untimely."


The court summarized its analysis by stating, "The court finds that the ambiguity in the [MSA] between the spousal support provision and the Family Support provision is such that it is equitable to interpret the agreement to reserve jurisdiction over the issue of spousal support."

The court ordered spousal support in favor of Melissa in the amount of $1,300 per month commencing June 1, 2015. The court also ordered that Barry pay Melissa child support in the amounts of $502 per month for the period December 1, 2014 through May 31, 2015 and $2,367 per month in child support for the period June 1, 2015 forward. F. Barry's appeal

The court found that Barry's income had increased substantially after June 1, 2015.

Barry appeals from the May 22, 2017 order.

III.

DISCUSSION

The trial court erred in concluding that it could extend jurisdiction

to award spousal support beyond September 1, 2016

Barry claims that the trial court erred in concluding that it could extend its jurisdiction to award spousal support beyond September 1, 2016. A. Governing law and standard of review

1. The law governing waivers of spousal support in an MSA

"A party to an MSA may waive the right to receive spousal support." (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 130; see Fam. Code, § 4336 ["Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration" (italics added)].)

The trial court found that the parties were married for eleven years and four months before separating and that they had a "long term marriage." Barry does not dispute that his marriage to Melissa was of long duration. (See § 4336, subd. (b) ["For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration"].)

While "[a]ny ambiguity in the language of such an agreement must be construed in favor of the right to spousal support," (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 (Iberti)), a court may not interpret an MSA in a manner that is "not reasonably susceptible of [a party's] proffered interpretation." (Id. at p. 1440.) That is because "[w]hen the language of the judgment incorporating the marital settlement agreement is clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language." (Ibid.) "When a spousal support order or agreement uses clear and unequivocal language terminating spousal support on a specified date or upon the occurrence (or nonoccurrence) of a specified event, there is no basis upon which the court may imply a reservation of jurisdiction. Unambiguous, unconditional termination language precludes the court from ordering support past the specified date or terminating event." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) [¶] 6:1051, p. 6-553, italics omitted.)

2. The law governing the interpretation of an MSA

" 'Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally.' " (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518.)

"We interpret a contract to give effect to the mutual intention of the parties at the time they formed the contract. [Citations.] We discern the parties' intention based on the written contract alone, if possible, but may also consider the circumstances under which the contract was made and its subject matter. [Citations.] We consider the contract as a whole, and interpret contested provisions in their context, not in isolation, with the aim of giving effect to all provisions, if doing so is reasonably possible. [Citations.] [¶] In interpreting a contract, we give the words their ordinary and popular meaning, unless the parties or usage have given the words a specialized or technical meaning. [Citations.]" (Camacho v. Target Corp. (2018) 24 Cal.App.5th 291, 306 (Camacho).) "Courts must interpret . . . all contracts, to try to give effect to every clause and harmonize the various parts with each other." (Friedman Prof. Management Co., Inc. v. Norcal Mutual Ins. Co. (2004) 120 Cal.App.4th 17, 33-34 (Friedman).) "Moreover, it is well settled contracts 'are construed to avoid rendering terms surplusage.' " (Rebolledo v. Tilly's, Inc. (2014) 228 Cal.App.4th 900, 923 (Rebolledo).)

3. Standard of review

"When, as here, no conflicting extrinsic evidence is offered of an interpretation as to which the language of a marital settlement agreement is reasonably susceptible, and the facts are otherwise undisputed, we apply the unambiguous contract terms to the undisputed facts as a matter of law." (Iberti, supra, 55 Cal.App.4th at p. 1439; see also In re Marriage of Rosenfeld and Gross (2014) 225 Cal.App.4th 478, 488 ["because no extrinsic evidence was considered, we are not bound by the trial court's construction and interpret the terms of the MSA de novo"].) B. Application

There was no extrinsic evidence offered in the trial court with respect to the meaning of the spousal support or family support provisions at issue in this case.

The MSA, and the stipulated judgment, which incorporated the MSA unambiguously state, "It is the express intent of the parties that spousal support and the Court's jurisdiction to award spousal support shall terminate in all events on 9/1/16." This provision clearly indicates the parties' intent that the trial court's jurisdiction to award spousal support would terminate on September 1, 2016.

Further, the parties made plain that the court did not retain the power to change the September 1, 2016 date to extend the period of time during which the court could award spousal support. The parties stated that, upon the effective date of the MSA, "the Court shall be immediately and forever divested of jurisdiction to extend jurisdiction for spousal support."

In addition, the parties reiterated their intent that the court had no power to extend its jurisdiction beyond the September 1, 2016 date by waiving any rights that they might have under several cases (Vomacka, supra, 36 Cal.3d 459, Ousterman, supra, 46 Cal. App.4th 1090, and Brown, supra, 35 Cal.App.4th 785) that address a trial court's jurisdiction to extend spousal support jurisdiction in the absence of such a provision.

The parties' intent to provide that the trial court's jurisdiction to award spousal support would end on September 1, 2016 and that the court could not extend spousal support beyond this date is reaffirmed by the final sentence of the spousal support paragraph. That sentence states, "Husband and Wife understand that they may never petition for extension of this spousal support order and that neither this nor any other court shall have the power or right to extend spousal support beyond 9/1/16." These provisions of the spousal support paragraph manifest the parties' clear intent that once the MSA was executed, the court would be permanently divested of jurisdiction to award spousal support beyond September 1, 2016.

None of the other provisions in either the spousal support or the family support paragraphs of the MSA are inconsistent with this provision, or render the MSA ambiguous with respect to whether the trial court could exercise jurisdiction to award spousal support after September 1, 2016. The trial court's statement that "the [f]amily [s]upport provision of the judgment appears to allow for an extension of the family support [beyond September 1, 2016] because it has no termination language," is not a reasonable interpretation of the MSA.

Section 92 provides that family support is support "that combines child support and spousal support." (Italics added.) Thus, reading the MSA as a whole, as we must (see e.g., Camacho, supra, 24 Cal.App.5th 291), the agreement provides that family support would end no later than September 1, 2016, when the parties unequivocally indicated that one of the two required components of family support (i.e., spousal support) would terminate.

Barry argues at length in his brief concerning the parties' purported motivations for electing not to include a termination date in the family support provision. Specifically, Barry argues that the parties elected not to include such a date for tax reasons, and to avoid running afoul of the public policy against divesting a trial court of jurisdiction to award child support. In concluding that the MSA is most reasonably interpreted as providing that family support would terminate no later than September 1, 2016, the date on which spousal support would terminate, we need not address the parties' motivations for structuring the MSA in such a fashion.

The trial court also suggested that the fact that the MSA provided that "the Family Support order will be reviewed on September 16, [sic] 2016," created an ambiguity. We disagree. The provision in the MSA to which the trial court was referring provides, "Family support is modifiable with changes in circumstances and, in any event, the parties agree to review the matter on or about 9/1/16." The fact that the parties agreed to review the "matter" on or about the date that spousal support was to terminate (September 1, 2016), is entirely consistent with the parties having an understanding that family support would end on this date and that the court would revisit the matter, including the appropriate level of child support, upon such an occurrence. In short, the fact that the MSA provides that the matter would be reviewed on September 1, 2016 did not render the MSA ambiguous.

We quote from a portion of the trial court's final order under the heading "Background." (Boldface omitted.) The trial court's order contained a typographical error in referring to the review date as September 16, rather than September 1.

Finally, while the first sentence of the spousal support provision provides, "[u]pon termination of family support, the Court shall retain jurisdiction over the issue of Wife's right to receive spousal support," the second sentence of the spousal support provision makes clear that this retention of jurisdiction could last only until September 1, 2016. (See ¶ 5 of MSA ["This reservation of jurisdiction shall terminate on further Court order, Wife's remarriage, the death of either party or 9/1/16, whichever first occurs" (italics added)].) Read together, these provisions evince the parties' clear intent that the court would retain jurisdiction to award spousal support in the event that family support terminated prior to September 1, 2016.

Family support did in fact terminate on September 10, 2014, when the trial court ceased to award combined spousal and child support in the form of family support, and instead, awarded an allocated amount of child and spousal support.

In sum, as noted above (pt. III.A.2, ante), in interpreting an agreement such as the MSA, it is well established that courts must attempt to "harmonize the various parts with each other," (Friedman, supra, 120 Cal.App.4th at pp. 33-34) and " 'avoid rendering terms surplusage.' " (Rebolledo, supra, 228 Cal.App.4th at p. 923.) The trial court failed to follow either principle of interpretation in concluding that there were "contradictory provisions in the MSA," and in rendering ineffectual several provisions in the spousal support paragraph in which the parties manifested their intent to terminate the trial court's jurisdiction to award spousal support on September 1, 2016.

While the trial court stated that it was "disturbed by the conduct of the mediator in failing to actually have the parties exchange Preliminary Declarations of Disclosures," prior to executing the MSA, the trial court denied as untimely Melissa's motion to set aside the spousal support provision of MSA on this ground. Melissa has not appealed that determination. Thus, the trial court's extension of jurisdiction to award spousal support may not be upheld on this ground.

For the reasons stated above, the trial court's order granting Melissa's request to "[e]xtend [s]pousal support jurisdiction beyond September 1, 2016," is contrary to the plain language of the MSA. Accordingly, we conclude that the trial court erred in concluding that it possessed jurisdiction to award spousal support beyond September 1, 2016.

In light of this conclusion, the trial court erred in relying on Schu, supra, 231 Cal.App.4th 394, which states, "If ambiguous, the language in a marital settlement agreement should be construed in favor of support." (Id. at p. 400, italics added.) --------

IV.

DISPOSITION

The trial court's May 22, 2017 order is reversed. The matter is remanded to the trial court with directions to enter a new order that terminates spousal support as of September 1, 2016, and to conduct any further necessary ancillary proceedings. Barry is entitled to recover costs on appeal.

AARON, Acting P. J. WE CONCUR: IRION, J. DATO, J.