Marriage of Leon

Filed 9/18/07 Marriage of Leon CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In this dissolution proceeding, Wendy Leon (Wife) agreed to purchase Mark Leon's (Husband) interest in the family residence. In financing the purchase, Wife refinanced a loan secured by the residence, incurring a prepayment penalty. Husband sought an order requiring Wife to pay the entire penalty. Husband attempts to appeal the order denying his motion.

Because no final judgment has been entered, the order is not appealable. Nevertheless, we elect to treat the attempted appeal as a petition for a writ of mandate. We deny the petition.

FACTS

Upon dissolution of their marriage, the parties stipulated to an order dividing their community property. The order provided, in part: "Petitioner shall purchase Respondent's interest in the family residence . . . . Petitioner shall have 60 - 90 days to refinance the house to purchase the former family residence. Respondent shall execute a quitclaim deed and/or any other documents necessary for the refinance, immediately upon request. The attached residential appraisal report dated 12/05/05 shall be used for valuation purposes." The appraisal report valued the residence at $715,000.

The residence was subject to a trust deed that included a prepayment penalty. When Wife refinanced the residence to purchase Husband's interest, a prepayment penalty of $18,335.43 was assessed. Wife deducted half of the prepayment penalty in calculating the amount due to Husband.

Husband brought a motion to compel Wife to distribute funds without deducting any of the prepayment penalty from Husband's share. The trial court denied the motion.

DISCUSSION

I

Wife contends the appeal must be dismissed because there is no final judgment. The trial court ordered that a formal judgment be prepared, but no such judgment has been entered.

It is true that Husband may not appeal a prejudgment order. (See Code Civ. Proc.,  904.1.) But because the parties have fully briefed the merits, we elect to treat the appeal as a petition for writ of mandate. (See Barnes v. Molino (1980) 103 Cal.App.3d 46, 51.) As such, we consider the merits.

II

Husband contends the trial court erred in denying his motion to exclude the prepayment penalty from calculating his interest in the family residence.

The rules of construction for a marital settlement agreement are the same as for any other contract. (Tanner v. Tanner (1997) 57 Cal.App.4th 419, 424-425.) In construing the agreement, we look to the objective manifestation of the parties' intent. (Beard v. Goodrich (2003) 110 Cal.App.4th 1031, 1040.) One party's subjective intent is irrelevant. (Ibid.) Where, as here, the parties do not rely on parol evidence, interpretation of the agreement is a question of law, subject to our independent review. (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.)

Contrary to Husband's argument, the agreement does not provide for a specific amount for his interest. That Husband may have had a subjective expectation of receiving a specific amount is irrelevant. (See Beard v. Goodrich, supra, 110 Cal.App.4th at p. 1040.) Husband cites no factual findings on which a claim of estoppel could be based.

The agreement requires Wife to purchase Husband's interest in the family residence. Husband's interest was subject to a mortgage containing a prepayment penalty. Thus Husband's interest was subject to the penalty.

Husband argues the agreement requires Wife to purchase his interest, not to refinance the mortgage. But the agreement expressly allows Wife to refinance.

That the prepayment penalty might have been avoided through the passage of time is beside the point. The agreement does not require Wife to wait to purchase Husband's interest.

We deny the petition. No writ of mandate shall issue. Costs are awarded to Wife.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Charles W. Campbell, Judge

Superior Court County of Ventura

______________________________

Michael F. Christiano for Defendant and Appellant.

Law Office of Robert P. Wright, Robert P. Wright, Taylor, McCord, Praver & Cherry, and Patrick G. Cherry for Plaintiff and Respondent.

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