Filed 5/6/22 Marriage of Dick CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michelle H. Gilleece, Judge. Affirmed.

Johnson & Shinton; Law Office of Thomas E. Shinton and Thomas E. Shinton for Appellant.

Law Office of Miles & Hatcher and Cornell L. Hatcher for Respondent.

In this appeal, we determine that the language of a stipulated judgment required that a spouse’s obligation to pay spousal support for an agreed upon term continued even though the supported spouse remarried during the term.

After over 13 years of marriage, Petitioner-Appellant Kristoffer Dick and Respondent Marlenna Dick stipulated to a judgment of dissolution. In that stipulated judgment, Kristoffer agreed to pay Marlenna $1,000 per month in spousal support for seven years. (This opinion will use first names for the parties due to their identical last names.)

Marlenna remarried two-and-a-half months after entry of the stipulated judgment. Pursuant to Family Code section 4337 (“section 4337”), spousal support terminates upon the remarriage of the supported party, but the parties may agree otherwise: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.”

Kristoffer sought to terminate spousal support due to Marlenna’s remarriage. The trial court found that Kristoffer had agreed not to apply section 4337’s termination provision in the stipulated judgment, so spousal support continued despite the remarriage. The trial court relied on the following stipulated language:

“Petitioner shall pay as for spousal support in this matter a non-modifiable amount of $1,000 per month for the length of seven years. . . . The court does not reserve jurisdiction to modify spousal support. The court retains absolutely no jurisdiction to award or modify spousal support to Respondent in the future. The provisions of this section are intended to comply with the requirements of In re Marriage of Vomacka (1984) [36 Cal.3d 459] which shall make clear that no court shall have the authority to provide spousal support in any amount at any time except for the amount provided herein and that amount shall not be modified as to term or amount under any circumstances. As a result of Respondent’s agreement herein to terminate the Court’s jurisdiction to award spousal support under conditions herein, the Court cannot award support even if there is a change of circumstances including, but not limited to, the following: poor health; an inability to work; bad investments; the decline in market value of Respondent’s assets; decreased income; or serious need.”

A supported spouse has the burden of proving by clear and convincing evidence that the supporting spouse has waived in writing the section 4337 right to have payments terminate upon remarriage. (In re Marriage of Cesnalis (2003) 106 Cal.App.4th 1267, 1272 (Cesnalis).) Where, as here, the facts are undisputed, the application of section 4337 is an issue of law that we review de novo. (In re Marriage of Thornton (2002) 95 Cal.App.4th 251, 253-254 (Thornton).)

No particular words are required for a section 4337 waiver. (In re Marriage of Glasser (1986) 181 Cal.App.3d 149.) Nevertheless, simply stating that support is “‘non-modifiable for any reason’” is insufficient because terminating support differs from modifying it. (Id. at pp. 150-151.) As well, agreeing that a list of events other than remarriage terminate spousal support, where the agreement does not state that they are the “only” events that can do so, is not in itself enough to show a waiver. (Thornton, supra, 95 Cal.App.4th at 257.)

On the other hand, the use of a term such as “not modifiable” may be enough to show a waiver of termination rights if other language in the agreement shows an intent to preclude termination. Cesnalis construed two earlier cases to hold that language that does not expressly refer to termination due to a specified cause can nevertheless waive a statutory right to terminate spousal support should that cause occur. (See Cesnalis, supra, 106 Cal.App.4th at p. 1273 [citing In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1135 and Steele v. Langmuir (1976) 65 Cal.App.3d 459, 461-462 (Steele)].) Once a party identifies language “reasonably susceptible to interpretation” as showing intent to have support continue after remarriage, then extrinsic evidence of intent is permissible. (Id. at p. 1272.)

Cesnalis accordingly held that language in a judgment stipulating to three years of spousal support worked a section 4337 waiver even though it stated that the support was “not . . . modifiable under any circumstances” rather than specifically addressing termination for specific causes. (Cesnalis, supra, 106 Cal.App.4th at p. 1270.) That judgment’s language had also stated that support would be “continuing until either party’s death,” that the “termination date stated herein is absolute” and that “no court shall have jurisdiction over the issue of spousal support” before that date. (Ibid.) Cesnalis held that this language waived termination due to remarriage because it stated that “the three-year duration [of support payments] cannot be changed under any other circumstances.” (Id. at p. 1274.) Because it focused “on a definitive three-year duration,” the non-modifiability provision “relate[d] more to termination than to modification.” (Ibid.)

Cesnalis’s reasoning applies precisely to Kristoffer and Marlenna’s judgment. Their stipulated judgment stated that the $1,000 monthly support “shall not be modified as to term or amount under any circumstances.” (Italics added.) Stating that the term cannot be modified under any circumstances is, as Cesnalis concluded on similar facts, tantamount to prohibiting termination before the end of the stipulated term. That is, the provision makes unmodifiable not just the amount of spousal support but also the “‘duration of spousal support.’” (Cesnalis, supra, 106 Cal.App.4th, at p. 1274.) Kristoffer and Marlenna agreed that the seven-year “duration cannot be changed under any [] circumstances,” and it is “no stretch to say that a supported spouse’s remarriage would generally be considered one of the most prominent of such circumstances.” (Ibid.) If Kristoffer’s support obligation were terminated before seven years, that would modify the seven-year term to which the parties agreed, an action that their stipulation prohibits.

Further, as in Cesnalis, Kristoffer and Marlenna agreed to preclude the court’s “jurisdiction” during the seven-year term by stating that the court “does not reserve jurisdiction” to modify support; that the court retains “absolutely no jurisdiction” to modify the agreed spousal support; and that the parties agreed to “terminate the Court’s jurisdiction” to award support. Because a removal of “jurisdiction” from a court eliminates its power to act at all, it strains language to interpret these provisions as removing power from the court to modify the amount of spousal support but to nevertheless silently allow the court to retain the ability to entirely terminate support.[1]

Our interpretation could be definitive if the parties had included in the judgment language that expressly waived, or did not waive, section 4337. But unmistakable language is not essential to meet a supported spouse’s burden. In a recent case, our division joined Cesnalis in finding a section 4337 waiver where express language was not adopted. In Marriage of Martin (2019) 32 Cal.App.5th 1195, 1202, we held that a spouse waived section 4337 when the parties left blank a box on a form through which they would have chosen to have section 4337 apply. That failure to check the box was “sufficient” to show a waiver “as a matter of law.” (Marriage of Martin, supra, 32 Cal.App.5th at pp. 1202-1203.)

Here, as in Marriage of Martin, we find the text of the judgment sufficient. That is, for the reasons discussed, the Dicks’ stipulated language was sufficient to show by clear and convincing evidence a written agreement to waive section 4337 and require a seven-year term of spousal support despite Marlenna’s remarriage. Although extrinsic evidence about the parties’ negotiations would be admissible, the trial court observed that neither party introduced such evidence, so it made its determination on the language of the stipulated judgment alone. Because that language here is sufficient to carry Marlenna’s burden of proof, we agree.

DISPOSITION

The February 25, 2020, order confirming the parties’ 2017 spousal support order is affirmed. Respondent Marlenna Dick to recover costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

[1] We note that we do not think the agreement’s reference to In re Marriage of Vomacka (1984) 36 Cal.3d 459, 470 (Vomacka) has a bearing on our analysis. In Vomacka, the court held that a husband “ha[d] not met his burden of showing” that a wife “waived any rights” to seek an extension of the term of a spousal support order beyond a certain date. (Ibid.) The parties do not dispute that the stipulated judgment here constituted a waiver of some rights to modify spousal support. The issue of whether the terms of that waiver included waiving section 4337’s conditions is not settled by a reference to Vomacka.