B226188 (Cal. Ct. App. Sep. 20, 2011)



In re Marriage of MINDY and MICHAEL SHAPIRO. MINDY SHAPIRO, Respondent, v. MICHAEL SHAPIRO, Appellant.

Honey Kessler Amado for Appellant. Hirschberg & Friedman and Leslie D. Hirschberg, for Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BD238545)

APPEAL of an order of the Superior Court of Los Angeles County. Maren Nelson, Judge. Affirmed.

Honey Kessler Amado for Appellant.

Hirschberg & Friedman and Leslie D. Hirschberg, for Respondent.

Michael Shapiro appeals from the court's denial of his petition to enforce his interpretation of a 1998 order modifying the judgment of dissolution of marriage. The trial court correctly interpreted the meaning of the order and its consequences to the parties; accordingly, we affirm.


Michael and Mindy Shapiro, appellant and respondent in this proceeding, terminated their 11-year marriage in 1996. They filed a stipulated judgment of dissolution on February 13, 1997. That judgment, among other terms, provided for spousal support in two paragraphs: paragraph 13 provided for support of $10,500 per month, payable by Michael and taxable to Mindy, and paragraph 14 required other payments by Michael for Mindy's benefit, which were not taxable to Mindy. The obligations in paragraph 14 were to terminate no later than October 2009. Both paragraphs were expressly non-modifiable by the court.

Because the parties share a last name, we will refer to each by their first name in this opinion.


[¶] . . . [1¶]
(c) The spousal support set forth in this paragraph of ten thousand five hundred dollars ($10,500.00) per month shall be non-modifiable by either party both as to the amount of the support and as to the duration for which support shall be paid by Respondent to Petitioner. Both parties acknowledge their understanding that the only basis for terminating the non-modifiable spousal support of ten thousand five hundred dollars ($10,500.00) per month described above payable by Respondent to Petitioner shall be in the event of (a) either party's death (except as set forth at paragraph 14 (o) below), (b) Petitioner's remarriage or (c) Petitioner's cohabitation with a person of the opposite sex, as defined above. Provided,
that Respondent shall be entitled to receive an offset against the amount of his monthly spousal support payment to Petitioner as specifically set forth at paragraphs [14 (m)] and 15 below. Each party is informed and understands that, under the terms of this paragraph 13, each party has specifically removed from the Court absolutely all authority, discretion and jurisdiction to modify this Judgment as to spousal support as set forth in this paragraph 13, except to permit termination of spousal support on the death of either party, remarriage of Petitioner and/or her cohabitation with a person of the opposite sex as defined above. Each party acknowledges that he/she has conferred with his/her own counsel, specifically with respect to this paragraph 13 and its effect, and acknowledges that he/she fully understands this paragraph and its effects.
As and for additional spousal support payable by Respondent to Petitioner, Respondent shall pay all of the expenses described below until either party's death (except as set forth at paragraph14 (o) below), Petitioner's remarriage, Petitioner's cohabitation with a person of the opposite sex, as specifically defined at paragraph 13 (a) above, or until the eighteenth birthday of the parties' youngest child, Megan Shapiro, on October 17, 2009, whichever occurs first. No court shall have the jurisdiction, discretion or authority to modify, either as to duration or as to amount, any of the expenses payable by Respondent to Petitioner as described below for any reason whatsoever. Provided, that if the expense or expenses set forth below payable by Respondent to Petitioner, or by Respondent on Petitioner's behalf, are specifically denoted as being payable by Respondent for a period that is either more or less than as set forth above (e.g., until either party's death, except as set forth at paragraph 14 (o) below, Petitioner's remarriage, Petitioner's cohabitation with a person of the opposite sex, as defined at paragraph 13 (a) above, or until the eighteenth birthday of the parties' youngest child, Megan Shapiro, on October 17, 2009, whichever occurs first) then in that event only, Respondent's obligation to pay that expense shall be non-modifiable for the period of time that Respondent is specifically required to make the payment described. This support shall not be deductible by Respondent for purposes
of his federal and/or state income taxes nor includable by Petitioner for purposes of her federal and/or state income taxes.

In November 1997, after the parties filed competing Orders to Show Cause, the court modified certain aspects of the support obligations. The record does not indicate that either party objected to the modifications. The parties continued to have disagreements concerning the payment of support, and, in January 1998, Mindy filed an Order to Show Cause seeking further modification.

As relevant here, Mindy asked the court to modify paragraph 14 of the judgment, so that certain of the payments to be made to third parties would be made directly to her. In response, Michael requested a different modification to paragraph 14 to eliminate most of his obligations entirely, based on an asserted change in his income. The court heard the matter in November 1998, and issued its order in December ("Order").

The parties raised other issues, but because their resolution is not relevant to this appeal, we will not discuss them here.

With respect to support, the court found that the parties had reached a stipulated agreement concerning arrearages, offsets and reimbursements, and "also reached an agreement concerning certain modifications of the Judgment entered February 13, 1997." Based on the stipulation and the evidence at the hearing, the court ordered, as relevant here, that paragraph 14 be modified to relieve Michael of the majority of his obligations (Order, par. 6-24), and that paragraph 13 be modified so that spousal support in the amount of $14,000 per month would be paid in lieu of the previous spousal support of $10,500 per month. The Order concluded that, except as so modified, "the provisions of paragraph 13 of the Judgment shall otherwise remain unchanged." (Order, par. 25.) Those provisions included the non-modification terms. The record before this court does not indicate that either party objected to the Order, or sought review of any of its provisions.

The sum added to support was slightly less than the maximum payments Michael had been obligated to make under the terminated provisions of paragraph 14 of the Judgment.

In February 2010, Michael filed a motion seeking an order terminating the $3,500 additional spousal support contained in the 1998 Order, seeking other credits against income Mindy had received or which Michael contended should be attributed to her, and making other changes with respect to the timing and manner of payment. In the accompanying declaration, Michael explained that he believed that the added spousal support obligation was to terminate, as paragraph 14 had originally provided, no later than October 2009, and that his income had been reduced in the interim. He did not request modification based on reduction of his income, however, but only a finding that the $3,500 obligation had terminated.

Mindy opposed the order and, after Michael filed reply papers, the court heard the matter in March 2010. With respect to the 1998 Order, the court found that the order was not ambiguous, that the obligation did not terminate in 2009, that the order had modified the spousal support provisions, and that the spousal support provisions were not modifiable at this time. Michael timely appealed.

On appeal, Michael asserts that the Order was ambiguous as to whether the shift in support was subject to the termination provisions of paragraph 14 and that, if it was not, Mindy had waived the non-modifiable conditions of support by seeking the modification.


I. The Trial Court Properly Found the Order Was Not Ambiguous

Michael argued, at the trial court and in this court, that the Order contained a latent ambiguity with respect to the termination date. He asserts that because the Order essentially changed only the payee - to Mindy rather than to third parties - the termination date should not have changed. He presented argument, based on the moving papers, concerning the subjective intent of the parties. The court found no ambiguity. It did not err in doing so.

Interpretation of an order based on a marital settlement agreement incorporated into a dissolution judgment is a question of law, which we review de novo, unless there is admissible extrinsic evidence giving rise to disputed facts. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 (Iberti); see also Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200, 1205; City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866.) Here the extrinsic evidence submitted to the court concerned Michael's subjective intent; it is only objective extrinsic evidence, however, that is properly considered. (See Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.) As a result, the court properly did not consider Michael's extrinsic evidence.

On the record before us, the Order is not susceptible to the interpretation Michael Asserts. The Order did not leave the payments in paragraph 14, changing only the payee, but instead ordered an increased payment of spousal support in paragraph 13 "in lieu of" the previously ordered amount. Had the court intended to make the increase in spousal support subject to the earlier termination provisions, it would either have left it in paragraph 14, or indicated that it was not subject to the different termination provisions of paragraph 13. It did neither.

Moreover, as we will discuss more fully below, Michael did not indicate at the time the Order was entered, or for more than 11 years thereafter, that the Order was either ambiguous in its treatment of the spousal support issue or did not accurately reflect the financial agreement of the parties with respect to the change in support. Both the Code of Civil Procedure, sections 473 and 473.5, and the Family Code, sections 2122 and 3691, require prompt action for seeking relief from an order made against a party. (See, e.g. County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228, fn. 2 (County of San Diego).)

II. The Stipulated Judgment Has Not Become Modifiable

Michael argues that the trial court should have found the Judgment modifiable as to spousal support, and considered his request for modification based on the change in his income. We note that Michael's motion did not seek that relief; he sought instead solely to enforce his interpretation of the 1998 Order. However, in light of the fact that he did provide evidence of a change in income, and that the court refused modification, we will address his argument that the non-modification provision has been waived by Mindy. His assertion is that, if the Order modified the judgment by changing the termination date on the payments previously subject to paragraph 14, then the parties have waived the non-modification conditions by conduct; Mindy, he states, cannot have it both ways. However, the record does not permit the determination he seeks.

We also note that Michael did not expressly argue waiver below, although he did assert that the judgment had become modifiable as a result of the Order, despite the language of the Order to the contrary. For purposes of appeal, we will reach the argument.

Waiver, as Michael concedes, is the intentional relinquishment of a known right or "'conduct so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished.'" (Kay v. Kay (1961) 188 Cal.App.2d 214, 218.) In this proceeding, he bore the burden of proving waiver. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [burden "'is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and "doubtful cases will be decided against a waiver."'"])

Michael did not meet his burden. The record does not show that either Michael or Mindy invoked the non-modification provisions, or challenged the authority of the court to make the orders it made in either of the prior proceedings in 1997 and 1998. Significantly, in the 1998 Order, the court made several facts clear: first, that the parties had agreed to the changes; second, that it was modifying the Judgment with respect to spousal support; and third, that the remaining provisions of Paragraph 13, which included the non-modification language, remained unchanged.

If Michael had believed that the court's order did not reflect the agreement of the parties accurately, or that the court had acted in a manner precluded by the non-modification provisions in entering the order, or that the court's finding that the non- modification provisions remained in effect was erroneous, it was his obligation to object. The court was not unclear, identifying its actions as a modification based on the agreement of the parties and asserting that the non-modification provisions remained in effect after the changes had been made. Having failed to object, or assert that the court could not act in the manner it did, Michael has forfeited the right to assert that the Order was improperly entered: a "right may be lost not only by waiver but by forfeiture, that is, the failure to assert the right in a timely fashion." (People v. Barnum (2003) 29 Cal.4th 1210, 1224.) It is also too late to assert that Mindy has waived her rights; by failing to make known his position that the request constituted a waiver, or to challenge the court's ruling that, in effect, there had been no waiver, he unfairly seeks to take advantage of something that could have been corrected at the time. (See In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds.)

"Courts generally refer to jurisdiction over the parties and subject matter in any action as 'fundamental jurisdiction,' and where this is lacking there is an entire absence of power to hear or determine the case. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 538 (Thompson Pacific).) Under such circumstances, 'an ensuing judgment is void, and "thus vulnerable to direct or collateral attack at any time."' (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, italics added.) [¶] On the other hand, '[a]n excess ofjurisdiction is typically described as the case '"where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.'" [Citation.]' (Thompson Pacific, supra, 155 Cal.App.4th at p. 537.) 'Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.' (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291, italics omitted.) In contrast with judgments lacking fundamental jurisdiction, judgments or orders in excess of jurisdiction are valid unless attacked. (Thompson Pacific, supra, 155 Cal.App.4th at p. 537.)" (County of San Diego, supra, 186 Cal.App.4th at pp. 1225-1226.)

Michael's assertion of waiver suffers one additional defect. In family law matters, we encourage the parties to resolve their disputes and to avoid unnecessary litigation. Reading the non-modification language here not only to preclude the court from imposing a change on the parties, contrary to their agreement, but also to preclude the parties themselves from mutually consenting to such a change, would cause more litigation and less opportunity for amicable resolution. The same is true of the request to find waiver in a circumstance where neither party asserted that the court did not have the authority to make the changes they consented to, while expressly preserving the parties' agreement that the court could not otherwise modify their agreement. The trial court did not err in finding that the non-modification provisions remained in effect.


The order is affirmed. Respondent is to recover her costs on appeal.

ZELON, J. We concur: