Marriage of Flahive

Filed 6/20/06 Marriage of Flahive CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a postjudgment order of the Superior Court of San Diego County, William J. Howatt, Jr., Judge. Affirmed.

I.

INTRODUCTION

Roy Flahive appeals from a postjudgment order of the trial court requiring that he pay $45,507.49 in past due family support to his ex-wife Mary. He also challenges the court's award of $30,000 in attorney fees and costs to Mary. The trial court rejected Roy's contention that he and Mary orally agreed that if he would remodel Mary's home, Roy would not have to pay his remaining family support obligation under the marital settlement agreement (MSA) the parties entered into upon dissolution of their marriage, finding that no such agreement existed. On appeal, Roy contends that the trial court failed to consider that he partially performed his part of the bargain by quitclaiming his interest in the family residence. He argues that by partially performing his part of the bargain, he can avoid the requirement of the statute of frauds that the agreement be in writing.^[1] We also interpret Roy's briefing to raise the argument that there was insufficient evidence to support the trial court's finding that no agreement existed. Finally, Roy asserts that the trial court should not have awarded Mary attorney fees under the MSA.

We conclude that the trial court did not have to consider whether or not Roy partially performed his part of the alleged oral agreement because the court found that no such agreement existed. We further conclude that substantial evidence supported the trial court's finding that Roy and Mary did not have an oral agreement by which Roy would remodel Mary's home in exchange for her releasing him from his obligation to make further support payments. We also conclude that the trial court should not have awarded Mary attorney fees under the MSA, because Mary failed to provide Roy with 10 days notice prior to seeking to enforce a provision of the agreement, as required by the terms of the agreement. However, because Roy does not challenge the alternative grounds the court cited for awarding attorney fees to Mary, we affirm that award.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Roy and Mary were married on December 2, 1978. They separated on April 1, 1995, after more than 16 years of marriage. Roy filed for dissolution of the marriage on July 31, 1997.

In July 1998, the parties filed an MSA, which provided that Roy was to pay $700 per month to help support Mary and the couple's teenage daughter, Meghan. On July 23, 1998, the court entered a judgment dissolving the marriage and incorporating the terms of the MSA. According to the terms of the agreement, Roy was to continue paying support until one of the parties died, Mary remarried, or Roy retired. The support provision also states, "Once the obligation to support the minor child ends . . . neither the amount nor the duration of family support will be modifiable under any circumstances." Pursuant to the terms of the agreement, Roy and Mary held title to the family home on Kelton Avenue in La Mesa as joint tenants. Mary was to pay the monthly mortgage payments of $1,443, and was given the exclusive right to occupy the home.

Paragraph 48 of the MSA provides that the agreement may be modified "by subsequent agreement of the parties only by an instrument in writing signed by both of them, an oral agreement to the extent that the parties execute it, or an in-court oral agreement made into an order by a Court of competent jurisdiction." On June 7, 2004, Mary filed an order to show cause (OSC) seeking payment of family support arrears and attorney fees and costs, as provided in the MSA. Mary alleged that Roy had not paid any family support since August 2000. She sought attorney fees and costs pursuant to Family Code^[2] sections 2030 and 271.^[3]

A hearing on the matter was continued a number of times at the parties' requests. Prior to the hearing on Mary's OSC, Roy filed an OSC in which he sought to enforce an alleged oral agreement between him and Mary. Roy alleged that he and Mary had orally agreed at some time prior to September 2000 that Roy would pay to remodel the garage and utility room of the Kelton residence in exchange for being released from his obligation under the MSA to pay family support. He also alleged that he had agreed to quitclaim his interest in the Kelton property on a temporary basis, so that Mary could refinance the property and pay off the second mortgage on the home. Roy contended that he agreed to pay Mary $890 per month as his share of the new mortgage payment. According to Roy, he requested that Mary put his name back on the title to the Kelton residence, but she failed to do so. Roy alleged that Mary then refinanced the property two additional times without his knowledge.

In his OSC, Roy sought the execution of a deed of reconveyance on the Kelton residence, or an accounting and payment of 50 percent of the rents Mary received from tenants living in the residence. He also sought half of the proceeds Mary received from refinancing the property three times. Finally, Ray requested that his family support obligation be terminated.

The parties each submitted multiple declarations and testified at depositions. They disputed whether there were any agreements between them regarding family support payments, the Kelton property remodel, and title to the Kelton residence. Roy stated that he had paid approximately $35,000 for the remodeling project, that he and Mary had agreed that two of the rooms in the house would be rented out, and that rental income was to take the place of his monthly family support payments.

Mary did not dispute that Roy remodeled the residence after they separated or that he had paid for most or all of the remodeling. She did dispute, however, that she and Roy had agreed that he would not have to make further monthly support payments in exchange for the remodeling. Mary testified that she had begun the remodel so that her daughter, who was attending college, could have more space in the house. According to Mary, Roy "came and said that he wanted to do it right, and so he started the remodel and turned it into a living suite."

The trial court heard argument on both OSC's on March 9, 2005, and issued a written decision on May 3, 2005. In its decision, the court found that Roy owed Mary support arrears in the sum of $45,507.49 under the terms of the MSA. The court determined that Roy and Mary had no enforceable agreement pursuant to which Roy would be released from his support obligations under the MSA.

III.

DISCUSSION

A. The trial court's order regarding the family support arrearages

The trial court determined that Mary was entitled to family support arrears in the amount of $45,507.49, plus interest on $6,300 of that amount. The court also concluded that Mary is the sole and exclusive owner of the Kelton residence, and Roy has no legal or equitable interest in the property.

On appeal, Roy appears to contend that the trial court failed to consider that Roy had partially performed his end of the bargain by quitclaiming his interest in the Kelton residence. According to Roy, the statute of frauds should not prevent the court from enforcing an oral agreement pertaining to title to the Kelton residence because he performed pursuant to the agreement. He cites Anderson v. Stansbury (1952) 38 Cal.2d 707, 715 (Anderson), as supporting his argument that the court should enforce the parties' oral agreement. In Anderson, the Supreme Court determined that the plaintiffs could not "invoke the doctrine of part performance to overcome the bar of the statute of frauds" because they failed to establish that "a sufficient change of position has occurred so that the application of the statutory bar would result in an unjust and unconscionable loss, amounting in effect to a fraud." (Ibid.) Roy contends that his signing the quitclaim deed constitutes a sufficient change of position so as to prevent the application of the statute of frauds.^[4]

Roy fails to acknowledge that the trial court found that there was no oral agreement between the parties regarding title to the Kelton residence or Roy's support obligation.^[5] Without an agreement, the issues of the applicability of the statute of frauds and whether Roy "partially performed" are irrelevant. (See Anderson, supra, 38 Cal.2d at p. 715 ["Such agreement [concerning interests in real property], if it existed, is barred by the statute of frauds by reason of the absence of a 'memorandum' . . . ." (Italics added.)]) Even if we interpret Roy's briefing to include a challenge to the court's conclusion that no agreement existed, this argument fails.^[6]

The determination as to whether or not a contract exists is a question of fact requiring deference to the trial court. (See Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141 (Alexander); see also Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866.) When the existence of a contract is at issue, we will defer to the trial court's factual findings when there is substantial oral or written evidence to support such findings. (In re First Capital Life Ins. Co. (1995) 34 Cal.App.4th 1283, 1287.) Evidence is substantial if it is "'reasonable in nature, credible, and of solid value.'" (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)

"The manifestation of mutual assent [to contract] often is achieved through the process of offer and acceptance. [Citation.] To form a contract, an 'offer must be sufficiently definite . . . that the performance promised is reasonably certain. [Citations.]'" (Alexander, supra, 104 Cal.App.4th at p. 141.) "The phrase 'reasonably certain' means the terms 'provide a basis for determining the existence of a breach and for giving an appropriate remedy.' [Citation.]" (Ibid.)

Roy contends that he agreed to remodel the Kelton residence in exchange for termination of his $700 per month support obligation under the MSA. He contends that the evidence supports his contentions. However, the question is not whether there was evidence to support his claim, but rather, whether there was evidence to support the trial court's ruling. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.) Even if other evidence might support a contrary finding, if substantial evidence supports the court's findings, we must affirm the trial court's judgment. (Ibid.)

The trial court concluded that the parties had not entered into an agreement "relating to the remodel and credits or non payments [sic] of the Family Support." In support of this finding, the trial court noted that Mary disputed the existence of such an agreement, and that Roy had continued to pay his $700 monthly support payments from 1998 until August 2000, even though Roy admitted that he completed the remodeling in 1997. The court further found that Roy bore both the burden of proof and the burden of production regarding the existence of a valid oral agreement, and that he had failed to meet either burden. The record supports the court's conclusions.

Mary stated in a declaration that she started remodeling her home in 1996 so that the couple's daughter, Melissa, could live there. She said that Roy "took over the process," and "not lik[ing] how [Mary] was conducting the remodel," he "tore down" everything Mary had started and began construction again. According to Mary, she and Roy never discussed whether the remodeled rooms would be rented to supplement her income, and also never discussed whether Roy was paying for the remodel in order to be released from paying further family support. As Mary pointed out, the remodeling began at least two years before the judgment of dissolution was entered. Thus, at the time Roy remodeled the house, Mary did not know that Roy would be paying her $700 in support under the judgment.

Roy paid Mary $700 per month in family support, as required under the judgment, from the time the judgment was entered in 1998 until August of 2000, even though the remodel was completed before that. This is inconsistent with Roy's contention that he and Mary had an oral agreement that he would finance the remodel of the Kelton residence in lieu of paying his family support obligation as set forth in the MSA. There is thus substantial evidence in the record to support the trial court's finding that Roy and Mary never agreed that Roy would pay to remodel the Kelton residence in exchange for being released from his support obligation under the MSA.^[7] We thus affirm the trial court's determination that Roy owes Mary $45,507.49, plus interest on $6,300 of that amount, in unpaid family support.^[8]

B. Attorney fees

Roy contends that the trial court should not have awarded attorney fees to Mary because, under the terms of the MSA, she was required to give Roy notice 10 days prior to moving to enforce any provision of the agreement.^[9]

Paragraph 49 of the settlement agreement provides:

"The prevailing party in any action or proceeding to enforce any provision of this agreement, or any corresponding provision of a subsequent judgment into which the provision is merged, will be awarded reasonable attorneys' fees and costs. For the moving party to be deemed the prevailing party for purposes of this provision, at least ten days before the filing of any motion he or she must provide written notice to the other party specifying the alleged breach or default, if capable of being cured. The other party must then be allowed to avoid implementation of this provision by curing the breach or default specified during the ten-day period."

The trial court awarded Mary $30,000 in attorney fees and costs, stating, "Wife is the prevailing party and is by the Marital Settlement Agreement and pursuant to Family Code section 2030 and 271 entitled to attorneys fees." The court made no findings with regard to attorney fees other than stating, "Wife is the prevailing party on all Motions." Paragraph 49 of the MSA clearly requires that a party provide the other party with notice 10 days before filing a motion to enforce any provision of the MSA, in order to be considered the prevailing party and be entitled to attorney fees under the agreement.

Our review of the record establishes that Mary did not provide Roy with notice 10 days prior to filing an OSC seeking family support arrears. Mary implicitly acknowledges that she did not provide the required notice. She contends, however, that paragraph 49 requires 10 days notice only when the alleged breach or default is "capable of being cured" during the 10-day period. The alleged breach was Roy's failure to pay $700 per month in family support, over a number of years. Mary asserts that Roy could not have cured this breach within 10 days. However, although it might have been difficult for Roy to pay the amount of money Mary claimed was past due under the MSA within a 10-day period, it certainly was theoretically possible that he could have done so, and there is no basis in the record for assuming that Roy would not have been able to do so. The provision requires 10 days notice before filing a motion in order for the moving party to be considered the prevailing party. Because Mary failed to give Roy the requisite notice, thereby depriving him of the opportunity to attempt to cure the alleged breach, the court should not have awarded attorney fees pursuant to the MSA.

However, the trial court based its award of attorney fees on three separate and alternative grounds: (1) the MSA, (2) section 2030 and (3) section 271. Roy does not contend that the trial court abused its discretion in awarding attorney fees on either of the alternative grounds (i.e., §§ 2030 and 271). When an appellant fails to raise an issue, we treat that point as forfeited. (Badie, supra, 67 Cal.App.4th at pp. 784-785.) Because Roy has not challenged the court's award of attorney fees under either of the two independent statutory grounds the trial court cited, we affirm the award of attorney fees.

IV.

DISPOSITION

The judgment of the trial court is affirmed. Costs are awarded to the respondent.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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Analysis and review provided by La Mesa Apartment Manager Attorneys.

^[1] In the trial court, Roy also argued that he agreed to sign a quitclaim deed, thus giving Mary full ownership of the resident on Kelton Avenue, so she could refinance the property on better loan terms than the two of them could receive if he were a party to the transaction. He asserted that he and Mary agreed that after the refinance was completed, Mary would restore his name to the title. The trial court rejected Roy's contention that he should receive a portion of the funds Mary obtained from subsequent refinancings and/or a portion of the rental income Mary received by renting out a room in her house. On appeal, Roy does not challenge the trial court's conclusion that he failed to meet his burden to establish that this agreement existed. Rather, he contends that his signing the quitclaim deed giving Mary full ownership of the Kelton residence constitutes partial performance, beyond the payment of money, of the agreement concerning the remodel/support payments.

^[2] Further statutory references are to the Family Code.

^[3] Section 2030 authorizes trial courts to order one party to a dissolution action to pay for some or all of the other party's attorney fees based on the parties' respective income, needs, and ability to pay. Section 271 authorizes trial courts to award attorney fees to the "extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation . . . ." An award of fees under section 271 "is in the nature of a sanction."

^[4] Again, in the trial court, Roy alleged the existence of at least two agreements─one involving the remodel and support payments and another involving quitclaiming his interest in order to refinance the property on more favorable terms. On appeal, Roy asserts that quitclaiming his interest in the house constituted partial performance of his end of the alleged oral agreement regarding the remodel/support payments. As we explain, post, we need not deal with the question whether Roy partially performed because the court found that no oral agreement existed.

^[5] On appeal, Roy apparently presumes the existence of a contract that the trial court found to be unenforceable, rather than nonexistent: "Roy's signing of the quitclaim deed was partial performance . . . . Thus the oral agreement was partially performed and enforceable."

^[6] In an argument captioned "Roy [sic] Conduct Constituted Partial Performance That Went Beyond The Payment Of Money," Roy claims that "[t]he Court's decision is not supported by credible evidence." He goes on to challenge the logic of Mary's testimony that Roy remodeled her home, expecting nothing in return. Although this is hardly a reasoned, well-presented argument, we nevertheless will consider the issue as having been raised and will address the contention.

^[7] Roy also asserts that his "overpayment of approximately $19,000 on a $9,680 loan should be credited toward any arrearages he owes." However, Roy made no substantive argument regarding this issue in his briefing. When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, the point should be treated as forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)

^[8] Roy may owe Mary more than the amount reflected in the trial court's May 2005 ruling if he has continued to withhold family support payments.

^[9] In addition to providing very little substantive argument on this issue, Roy failed to cite to the relevant portions of the MSA in the record. Although we ultimately agree with Roy that the settlement agreement requires 10 days notice, we reach this conclusion in spite of, not because of, his briefing on the issue.