Mariage of Whelan
Filed 9/6/07 Mariage of Whelan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of LORRAINE and STEPHEN D. WHELAN. | |
RICHARD M. KIPPERMAN, as Trustee for LORRAINE WHELAN Appellant, v. STEPHEN D. WHELAN, Appellant. | D046947(Super. Ct. No. ED049996) ORDER DENYING PETITION FOR REHEARING AND MODIFICATION ORDER [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on August 21, 2007 be modified as follows:
The last paragraph on page 4 and continuing on the top of page 5 shall be deleted and replaced with:
In California, all property acquired during marriage is community property unless it comes within a specified exception ( 760) and such property is to be equally divided upon dissolution of the marriage. ( 2550.) Here, the Agreement redefined what would have been community property based on a formula that applied only if the marriage broke down. The Agreement promoted the dissolution of the marriage because Stephen, as the high wage earner, could claim a larger share of the assets accumulated during the marriage by dissolving it. Accordingly, the Agreement is void as against public policy and the trial court properly disregarded it regardless of the choice of law issue. Even assuming English law applied, as the trial court found, the trial court could decide what weight to give the Agreement in the interest of justice. Thus, even under English law the trial court could disregard the Agreement based on the parties' lengthy marriage in California. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 [a judgment will be sustained if correct on any theory regardless of the considerations that moved the lower court to its conclusion].) This conclusion moots Stephen's argument that the trial court erred by deciding the conflict of law issue without considering any evidence.
The petition for rehearing is denied.
NARES, Acting P. J.
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