Marriage of Dvorak

Filed 10/12/06 Marriage of Dvorak CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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After 23 years, the parties separated; Sandra Dvorak (Wife)^[1] petitioned for dissolution of their marriage. In January 2004, the parties stipulated to a judgment incorporating their MSA. According to appellant, “[f]or unexplained reasons“ there was no entry of judgment until January 2005.

Thereafter, Wife moved to increase spousal support, eliminate provisions in the MSA for a step-down in support, and to extend indefinitely the court’s power to provide support. Following an unreported contested hearing, the trial court increased spousal support and ruled that language in the judgment purportedly limiting its jurisdiction to extend the duration of spousal support beyond the specified termination date was ineffectual.

On appeal, Eugene Dvorak (Husband) contends the court erred in its interpretation of the language of the judgment. We shall affirm.

Background

In the preamble to the judgment, the parties waived any finding of fact or a statement of decision and their right to appeal. The trial court reserved jurisdiction “to make any orders reasonably necessary . . . to carry out the terms of this judgment, including the provisions of the [MSA] incorporated herein, and including . . . the reservations of jurisdiction specifically provided for in the [MSA].”

On the issue of spousal support, the judgment provided that Husband should make monthly payments of $700 “beginning 2/1/04. Said payments shall continue until the death of Husband, death of Wife, remarriage of Wife or further order of the court. Said spousal support shall be modifiable pursuant to, and on any grounds set forth in applicable California law. Effective 2/1/07, support shall be reduced to $500/month for 24 months[.] Spousal support as to Wife shall absolutely terminate on January 31, 2009. IT IS HEREBY ORDERED THAT the court shall retain jurisdiction over the issue of spousal support as to Husband. Said jurisdiction shall absolutely terminate on January 31, 2009.”

The judgment also included yet another section headed “RETENTION OF JURISDICTION.” This provision stated that the court “shall retain jurisdiction to make further orders that are necessary to enforce the provisions of this tax agreement or any other portion of this Stipulated Judgment.”

As noted, the hearing on Wife’s motion was unreported. The parties filed an agreed statement on appeal, which states that it “is not intended to replace or supplant [the clerk’s] transcript” and “[e]ach party testified along the lines of [each’s] written declarations . . . and made arguments as reflected in the moving and opposing papers. Neither party sought to introduce extrinsic evidence to aid in interpreting the terms of the [MSA].”

In its findings and order after hearing, the trial court found that Wife had developed a debilitating illness (multiple sclerosis) that had not been diagnosed at the time the parties had originally executed the MSA incorporated in the judgment, which was a change in circumstance. It increased monthly spousal support to $1,500 until the death of either party, remarriage of Wife, or the court’s further order. As for the purported limit on its jurisdiction, the court found “that the provisions of the Judgment incorporating the [MSA] . . . with regard to spousal support termination and ‘step-down’ does not preclude the Court from providing for spousal support beyond the date set for termination pursuant to the holdings of In re: Marriage of Vomacka, In re: Marriage of Jones, and In re: Marriage of Benson. Therefore, the Court has the authority [to] order that the . . . step-down provisions and the termination date of January 21, 2009[,] are stricken . . . .”

Discussion

Husband does not challenge the validity of the cited change in circumstance for modifying spousal support, i.e., Wife’s illness.^[2] He contends, however, that the trial court erred in concluding that the language of the MSA incorporated in the judgment gave it jurisdiction to modify the expiration date of his support obligation.

The general rules for the interpretation of contracts apply to MSAs. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) We therefore apply our independent judgment on the issue, in the absence of conflicting extrinsic evidence. (Ibid.) While parol evidence is admissible (ibid.; contra, In re Marriage of Benson (1985) 171 Cal.App.3d 907, 912 (Benson)), the parties’ settled statement states that the trial court’s focus was only on the language of the MSA.^[3] In construing the MSA, we consider it as a whole, giving effect to every provision in order to avoid surplusage or a disjointed reading. (Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730.) Specific terms control over general terms (ibid.); in the particular context of MSAs we must disfavor interpretations that restrict spousal support’s availability, and resolve any ambiguities in favor of the right to receive spousal support. (In re Marriage of Vomacka (1984) 36 Cal.3d 459, 467, 469 (Vomacka).)

With respect to spousal support, there are certain relevant “default” principles that apply in the absence of any express contractual provisions to the contrary. A trial court does not have power to extend a fixed term for spousal support unless there is an express (or implied (Vomacka, supra, 36 Cal.3d at pp. 467, 470)) reservation of jurisdiction to do so, except where marriages “of long duration” are involved (such as in the present appeal); in that circumstance, the parties must expressly divest the court of jurisdiction to extend the obligation for support. (Fam. Code, §§ 4335, 4336, subd. (a).) The court does not have any power to override a provision for spousal support that makes a specific reference to its immutability. (Id., § 3591, subd. (c).)

An MSA can have general prefatory language of immutability that satisfies the statutory requirement of a specific reference if it is clear that this is intended to apply to spousal support. (In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 873-874 [general provision that agreement intended to be immutable except for child support and custody]; In re Marriage of Nielsen (1980) 100 Cal.App.3d 874, 878-879 [general provision that MSA does not depend on court approval to be effective and any court order approving MSA does not have any affect on it is sufficient to divest court of any power to modify spousal support provisions]; In re Marriage of Kilkenny (1979) 96 Cal.App.3d 617, 620 [same, also relying on statement that MSA is “‘absolute, unconditional and irrevocable’”]; Forgy v. Forgy (1976) 63 Cal.App.3d 767, 770-771 [same].) By contrast, we noted that an MSA that lacked any specific language about modification of spousal support in particular or the agreement in general could not be considered immutable simply because it contained a general release of claims and recitals that it was “entire,” “final,” “binding,” and “complete.” (Fukuzaki v. Superior Court (1981) 120 Cal.App.3d 454, 457-458.) In re Marriage of Forcum (1983) 145 Cal.App.3d 599 acknowledged the above cases, but concluded that a general statement that the agreement “could not be altered, amended, or modified, except in a writing executed by both parties” (145 Cal.App.3d at p. 604) and did not depend on court approval for effectiveness, did not prevail over specific language in the provision for spousal support “the legal effect of which is to retain jurisdiction to modify the amount” (id. at p. 605). Therefore, where the spouse was entitled to monthly support of $425 for five years and $1 for the next five years, the trial court had authority to increase the amount of support in the second five-year period. (Id. at pp. 601, 605.)

In the present case, Husband does not cite any general provision declaring the immutability of the MSA, and we have not found any. To the contrary, we have noted general provisions for the court’s jurisdiction to enter orders in furtherance of the MSA that do not place any temporal or substantive constraints on the exercise of the court’s jurisdiction to modify. Neither are we persuaded that Wife’s express acknowledgment that “[s]pousal support as to Wife shall absolutely terminate on January 31, 2009” should be inferred as a limitation on the trial court’s power to respond to unforeseen changed circumstances before the expiration of its jurisdiction to act. We therefore turn to the three cases on which the trial court relied in concluding that the language of the provisions for spousal support did not limit its power to extend support payments.

Vomacka held that in the absence of any express provision to the contrary, a judgment contemplating subsequent court orders on the issue of spousal support before the court’s jurisdiction over the issue expired impliedly vested the court with power to extend its jurisdiction to order the extension of spousal support. (36 Cal.3d at pp. 461, 465, 470, 471, 474.) In re Marriage of Jones (1990) 222 Cal.App.3d 505 (Jones) involved a provision for a fixed term of spousal support that was itself silent as to the jurisdiction of the court or its modifiability. (222 Cal.App.3d at p. 508.) Although the provision for child support expressly acknowledged that it could be modified, Jones would not infer from an omission that spousal support could not be modified because speculations as to intent do not satisfy the statutory requirement for a specific reference to immutability; the parties must expressly state in the context of spousal support that the court does not have any jurisdiction to extend the term. (Id. at pp. 509-512.) This leaves Benson, which (like Vomacka) involved a fixed term for spousal support, an acknowledgment of subsequent court orders on the issue, and silence on the issue of the court’s jurisdiction to modify the term of the support. (171 Cal.App.3d at p. 910.) Benson agreed that there was an implied reservation of the court’s jurisdiction, and that this included the power both to modify the amount of spousal support and extend its term. (Id. at pp. 912, 913.)

In the particular provision for spousal support, the court is granted express jurisdiction over Husband to modify its amount during the fixed term specified.^[4] As contemplated at the time of execution, both spousal support and the jurisdiction over Husband on that issue were to terminate “absolutely” after January 2009. This adverb is the sole present distinction from the provisions in Vomacka and Benson, which would otherwise require us to infer the power to extend jurisdiction and spousal support. It must bear the weight alone as a sufficiently express statement of a contrary intent to make the term of support immutable, satisfying the principle in Jones that we do not infer a loss of the power to further the public policy in favor of overseeing the needs for support of a spouse from a long-term marriage. As in Jones, we will not infer immutability of the term of spousal support merely because, unlike the amount of spousal support, it does not make any express reference to the power to modify. (Cf. 222 Cal.App.3d at pp. 509-510.)

We conclude that it collapses under the strain, because we cannot fathom why “absolutely” should be forced to do the work of “without the power of the court to extend this date.” That would have been a simple and express statement of the limit on the court’s power to modify that would otherwise exist, and would not require us to engage in nuances and connotations. The trial court was correct in exercising its power to extend support beyond the specified date.

Husband contends that equity should require Wife to have proceeded by means of a motion to reopen the judgment on grounds of mistake (Fam. Code, §§ 2120-2122) rather than modifying only the support provision, because the property settlement could be adjusted to reflect the indefinitely increased duration of his support obligations. He does not, however, cite any authority that would limit Wife to this remedy. Furthermore, he does not explain why the court could not (or did not) consider the value of this asset in setting the amount of spousal support. We therefore reject the claim.

Disposition

The order is affirmed.

DAVIS , Acting P.J.

We concur:

HULL , J.

ROBIE , J.

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^[1] We adopt the terminology of the parties’ marital settlement agreement (“MSA”).

^[2] He had disputed this in his opposition in the trial court.

^[3] Husband adverts to his opposition to the motion to modify, in which he had claimed that the award of the family home to Wife without offset was the quid pro quo for the limitation on spousal support. Given the complexities of settling property, we cannot find the award of the home to be the sine qua non of unambiguous extrinsic evidence of intent allowing us to consider it as a matter of law.

^[4] We disagree with Husband’s posited interpretation that this provision should be interpreted as contemplating the possibility of an award of spousal support to him, rather than as an express reservation of the court’s jurisdiction over him to modify his spousal support obligation to Wife. In any event, it does not affect the resolution.