Marriage of Mead and Williams-Mead

Filed 11/1/07 Marriage of Mead and Williams-Mead CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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After 12 years of marriage appellant Robert M. Mead and respondent Carolyn Inez Williams divorced. As sometimes happens, the divorce settlement spawned lengthy, acrimonious litigation. Robert moved to set aside the judgment and filed a motion to quiet title. The trial court denied the motion. Robert, proceeding in propria persona, appeals, challenging the trial courts decision and arguing, among other things, that he was under the influence of the drug Vicodin when he agreed to the settlement. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The couple married in 1992. Exactly 12 years later to the day, on December 9, 2004, they stipulated in court to the terms of a marital settlement agreement (agreement). Both were represented by counsel.

The court ascertained that Robert understood the terms of the agreement: The Court: Okay. [] Mr. Mead, have you heard all that has been stated here in court as settlement of your marital issues? [] Mr. Mead: Yes, I have. [] The Court: And do you feel you fully understand whats been stated here? [] Mr. Mead: I believe so. [] The Court: Do you have any questions about anything stated here? [] Mr. Mead: None that would do any good. No, Your Honor. [] The Court: Do you have any that wont do any good? [] Mr. Mead: Thats like spitting in the wind, Your Honor. [] The Court: Okay. [] Mr. Mead, do you accept then -- as stated here in court -- the terms of the settlement recited by the attorneys as a settlement of all your marital issues? [] Mr. Mead: Yes, Your Honor.

The court stated the agreement was enforceable as a judgment under Code of Civil Procedure section 664.6.^[1] The dissolution judgment incorporating the agreement was filed on March 8, 2005.

Three months after stipulating to the agreement, Robert had not signed a formal marital settlement agreement. At a compliance review hearing in March 2005 the court entered judgment under section 664.6. The court adopted the agreement prepared by Carolyns attorney. Robert had signed this agreement, writing next to his signature, under judicial order. Robert claims the court clerk told him the court ordered him to sign the agreement. A veritable blizzard of litigation followed.

First Motion to Vacate

Shortly thereafter, Robert filed a motion to vacate the judgment, arguing paragraph 8 of the agreement conflicted with the parties oral stipulation. The parties orally stipulated on December 9, 2004, that: Husband is awarded, as his sole and separate property, the home on Spring Azure Way and will pay to wife $50,000 as an equalization payment. He will pay that within 90 days with no interest. [] He has the option not to pay her within 90 days, but to give her a promissory note in the sum of $50,000, payable in five years, interest only at 7 percent, monthly payments secured by a deed of trust on the home.

During the oral stipulation, the court repeated the agreement. The court stated: Hes agreeing to give her an equalization payment of $50,000 for 90 days, theres no interest and he can pay it. If he doesnt pay it within 90 days then he is obligated to do a promissory note secured by a second deed of trust at 7 percent. [] Starting when? Carolyns attorney responded: Today. Roberts attorney agreed. The court later reiterated the interest began accruing that day, and Roberts counsel again answered in the affirmative.

Paragraph 8 of the agreement states, in pertinent part: Husband is awarded as his sole and separate property the home located at . . . Spring Azure Way . . . . Husband shall pay to Wife the sum of $50,000 as equalization . . . . The $50,000 shall be paid by Husband to Wife within ninety (90) days of December 9, 2004, or by March 9, 2005 without interest. If said sum is not paid . . . on or before March 9, 2005 then interest shall be due at the rate of seven percent . . . . If Husband does not pay the $50,000 by March 9, 2005 he shall execute a promissory note secured by deed of trust including the above terms.

In the motion to vacate, Robert argued the parties stipulated to giving him 90 days to pay without interest, providing him with time to refinance. Therefore, according to Robert, the 90 days could not begin to run unless Carolyn first conveyed title to the family home to him. Paragraph 8 incorrectly provided that the 90 days would begin to run on December 9, 2004, making him liable for interest from that date if he failed to pay Carolyn by March 9, 2005.

Carolyn argued the oral stipulation made no mention of allowing Robert 90 days to refinance, nor did the parties agree she had to convey title before the time began to run. Instead, the oral stipulation, made on December 9, 2004, simply states that Robert will pay that [equalization payment] within 90 days. If Robert chose to give Carolyn a promissory note, interest would begin to accrue on December 9, 2004.

The court denied Roberts motion to vacate the judgment. Robert did not appeal the judgment or the order denying his motion.

Motion to Enforce Judgment

Carolyn filed a motion to enforce portions of the judgment, including paragraph 8 and a provision requiring Robert to make a separate transfer of $50,000 from his 401(k) retirement account to Carolyns IRA.

Following a hearing, the court found Robert delayed and frustrated the division of the 401(k) account as required by the agreement. The court ordered Robert to take all reasonable steps to effectuate the transfer of the $50,000. In addition, the court found Robert in default in paying the $50,000 equalization payment for Carolyns interest in the family home. The court determined Robert owed interest on that amount from December 9, 2004, through the hearing date, November 29, 2005, for a total of $53,404.11. The court issued a writ of execution upon Carolyns application.

Sanctions

The court also sanctioned Robert $2,500 under Family Code section 271. Roberts conduct, according to the court, unreasonably exacerbated Carolyns attorney fees and frustrated settlement of the issues.

Robert filed a petition for a writ of prohibition in this court. We denied the petition, noting there was an adequate remedy by appeal. Robert did not appeal the enforcement order.

Second Motion to Vacate

Less than a week after we denied his writ petition, Robert filed a second motion in the trial court to vacate the enforcement order under section 663. Robert argued that he had not obstructed or delayed the $50,000 transfer but that Carolyn was responsible for the delay. In addition, Robert claimed that eight months before the hearing on the enforcement order, Carolyn gave him an interspousal grant deed to the family home. Thus, Robert contended, his liability for the $50,000 equalization payment was extinguished.^[2] The court denied the motion.

Robert moved for reconsideration of his motion to vacate the enforcement order. The court denied the motion as untimely. The court also found Robert failed to show diligence in producing evidence in support of the motion, and failed to present new or different facts.

Third Motion to Vacate

Robert filed a third motion to set aside the March 8, 2005, dissolution judgment pursuant to Family Code section 2120 et seq. For the first time, Robert contended he signed the agreement under duress and undue influence.

According to Robert, his capacity to consent to the agreement on the day he signed it was impaired by the drug Vicodin. Robert had been taking the drug following hernia surgery. After exacerbating the wound a few days before trial, Robert increased his Vicodin dosage. However, he reduced the dosage the morning of the trial to maintain alertness.

Robert maintained that he signed the agreement in a condition where the [sic] some effects of Vicodin were wearing off and the increasing pain the torn surgery render [sic] him incapable of making rational decisions. Robert did not explain why he failed to mention this impairment during the 16 months, and several trial motions, following his signing of the agreement.

In addition, Robert claimed he signed the agreement under duress because the court ordered him to sign. Robert also disputed the courts award of sanctions in connection with the enforcement order. He argued he had no control over the transfer of the funds from his 401(k) account.

In addition, Robert stated that his attorney had not consulted him prior to agreeing that the funds would be transferred within 30 days after Carolyn designated an IRA custodian. He argued paragraph 8 of the agreement was defective because it did not describe the interest Carolyn was giving up in return for the $50,000.

Robert also argued that paragraph 9.a of the agreement was invalid. Paragraph 9.a states that all of Carolyns interest in the company C/A Williams, LLC (Williams) is confirmed as her sole and separate property. In negotiating the agreement, Roberts counsel stated his client acknowledged that Carolyns interest in Williams was her separate property, and he waived any community property claim in the company. In arguing the provision was invalid, Robert stated Carolyn worked for Williams during the marriage and filed an income and expense declaration showing she was receiving benefits from Williams totaling over $110,000.

Following a hearing, the trial court denied the motion, stating: The Court has carefully reviewed the pleadings and fully considered the arguments presented at hearing. The Court finds no merit to Petitioners motion. Accordingly, the motion is Denied in its entirety. Robert filed a timely notice of appeal from the order filed June 2, 2006, denying his third motion to vacate.^[3]

DISCUSSION

Robert challenges the trial courts denial of his motion to set aside portions of the judgment on a number of grounds. The parties agree we review the trial courts order for an abuse of discretion. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682 (Rosevear); In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)

The party challenging the courts ruling bears the burden of demonstrating that, considering all the relevant circumstances, the court has exceeded the bounds of reason, or that no court would reasonably make the same order under the same circumstances. (Rosevear, supra, 65 Cal.App.4th at p. 682; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479-480.) The facts on which the court exercised its discretion are reviewed under the substantial evidence standard. (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 215.) When two or more inferences can be reasonably deduced from the facts, we lack any authority to substitute our decision for that of the trial court. (Rosevear, supra, 65 Cal.App.4th at p. 682.)

Undue Influence and Duress

Robert claims that when he signed the agreement in 2004 he was mentally impaired by the painkiller Vicodin, and he was subject to undue influence by the trial court, which forced him to sign the order.^[4] We find no merit in either claim.

Undue influence is a question of fact for the trial court. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1135 (Arceneaux).) However, Robert contends, since the trial court issued no statement of decision, the court did not resolve controverted factual evidence. We disagree.

Under section 634, [w]hen a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue. However, section 634 does not apply unless there has been a proper request for a statement of decision. (Arceneaux, supra, 51 Cal.3d at p. 1134.) The request must specify those controverted issues as to which the party is requesting a statement of decision. ( 632.)

Roberts request, buried in his motion to vacate, does not comply with Code of Civil Procedure section 632. Instead, Robert merely states he is requesting a statement of decision as provided in Family Code section 2127; the request fails to specify any controverted issues.^[5] Nor did Robert bring the lack of a statement of decision to the courts attention following the issuance of the order. Given these facts, Code of Civil Procedure section 634 does not apply, and we presume the trial court made all necessary findings to support the judgment.

The trial court, in denying Roberts motion, necessarily rejected his claim of undue influence. Robert argued that following surgery, he took Vicodin to ease the pain. The medication, Robert claims, deprived him of the ability to sufficiently assess and analyze fast moving and complex legal events occurring before him and having the physical stamina to overcome his medical needs which would allow him to protect himself at the December 9, 2004 negotiations.

Roberts claim flies in the face of the evidence before the trial court. During the hearing in question the trial court inquired as to whether Robert fully underst[oo]d the agreement. Under oath, Robert stated, I believe so. The court asked whether he accepted the terms of the agreement. Robert answered: Yes, Your Honor. Robert never mentioned being in pain, or feeling adverse effects from his medication.

Over the next 16 months, Robert filed several motions in which he challenged the agreement. In these filings Robert continually challenged aspects of the agreement but never asserted the settlement was invalid because he did not voluntarily consent.

In support of his undue influence claim in his third motion to vacate, Robert submitted his declaration asserting: I did not fully understand the [sic] certain conditions of the settlement and did not agree with other portions of the settlement . . . as a result of the medication, pain and pressure to settle; but felt I could do nothing about it in order [sic] break away from the process to resume pain medication and get medical treatment for the aggravation to the surgery. Robert offered no corroborating evidence either from his physician or his counsel, who negotiated with him the terms of the agreement.

Roberts declaration stands in stark contrast to the declaration of Carolyns counsel, who noted: At no time during the entire day did Petitioner, his counsel or anyone else mention or even suggest that Petitioner was in any physical or mental distress or pain; that he was under any medication or the influence of any drug whatsoever; or that there was any other cause that might impair or diminish his full awareness and understanding of the proceedings and our negotiations. Counsel also stated Roberts statements during negotiations showed he fully understood everything that was happening: He was a determined, stubborn and contentious adversary, and a firm advocate for his positions through the negotiations.

We have no power to judge the effect or value of evidence, to reweigh evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence. (In re Stephen W. (1990) 221 Cal.App.3d 629, 642.) That is the job of the trial court, and we are satisfied the trial court did not abuse its discretion in rejecting Roberts claim.

The trial court had ample evidence before it to reject Roberts claim of undue influence. Roberts acceptance in court of the agreement, his lengthy silence on his alleged drug-induced lack of consent, Carolyns attorneys observations during negotiations, and the lack of any supporting evidence from Roberts physician or attorney support the trial courts rejection of his undue influence claim.

In a related argument, Robert claims he entered into the agreement under duress. The duress alleged consists of the trial courts ordering him to sign the agreement.

Duress exists when one is induced by the unlawful act of another to make a contract or perform some other act under circumstances that deprive the person of the exercise of free will. (Tarpy v. County of San Diego (2003) 110 Cal.App.4th 267, 276.) Whether or not duress exists is a question of fact for the trial court. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1078-1079.) The party claiming duress bears the burden of proving the agreement was obtained by oppressing the party by threats, so as to eliminate the free exercise of the partys will. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 499.)

Robert fails to meet this burden. Robert simply asserts: The courts order to endorse the stipulation and power of penalties and imprisonment for contempt of that direct order of the court is sufficient oppression of Roberts free will to constitute duress. Robert provides neither citation to the record nor citation to authority to support this bald contention.

No order directing Robert to endorse the agreement appears in the record. The minute order merely states, Judgment entered. No reporters transcript exists to substantiate Roberts claim of judicially imposed duress. Accordingly, the trial court appropriately rejected Roberts contention of duress.^[6]

Family Home and Equalizing Payment

Robert attacks the validity of the section of the agreement awarding him the family home and obligating him to pay Carolyn an equalizing payment of $50,000 for the release of her interest. Carolyn argues that by accepting the benefits of the agreement, Robert has waived the right to attack it on appeal. We agree.

The agreement awarded Robert the family residence in exchange for an equalizing payment of $50,000 to Carolyn. Carolyn released her interest in the property, giving Robert a grant deed. Robert accepted the deed and recorded it. Having accepted the deed, Robert cannot attack that section of the agreement on appeal. Ordinarily, a party cannot accept the benefits of a judgment, in whole or in part, and then attack it by appeal. His conduct in taking any of its advantages while seeking to reverse it is inconsistent, and the result is a waiver of the right. (In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1179, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, 161, p. 171.)

Nor are we persuaded by the flurry of objections Robert makes to paragraph 8 of the agreement, awarding him the family home. Robert argues that since the court awarded the residence to him as separate property, the court lacked jurisdiction to enforce the judgment. However, the court retains jurisdiction to render any judgment and make orders that are appropriate concerning the settlement of the property rights of the parties. (Fam. Code, 2010.)

Robert also argues the court lacked jurisdiction over the family home, because its jurisdiction is limited to confirming the property to its owner and ordering reimbursement from a spouses separate property to the community. However, these limitations apply unless the parties otherwise agree . . . . (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 810.) Here, the parties agreed that Robert would pay Carolyn a $50,000 equalizing payment. The agreement vested the court with jurisdiction to enforce it. (Fam. Code, 2010.)

Robert also argues that paragraph 8 fails to define Carolyns rights. However, the agreement gives Carolyn a security interest: a deed of trust to secure payment of the $50,000 from Robert. Although Robert argues the agreement does not identify the interest Carolyn held when the parties negotiated the settlement, he fails to cite any authority imposing such a requirement.

In addition, Robert claims paragraph 8 lacks essential terms, leaving them for future determination and making paragraph 8 unenforceable. We disagree. Paragraph 8 unambiguously sets forth the terms of the agreement over the family residence. Paragraph 8 requires Robert to pay Carolyn $50,000 within 90 days without interest. If Robert failed to make the payment, then interest shall be due at the rate of seven percent (7%) per annum from December 9, 2004 on all unpaid principal. The accrued interest shall be paid on March 9, 2005 and monthly thereafter on the 9th of each calendar month on all unpaid principal. . . . If Husband does not pay the $50,000 by March 9, 2005 he shall execute a promissory note secured by deed of trust including the above terms.

In addition, the trial court, after the agreement was read into the record, asked Robert: Are there any other marital issues that exist out there that you are aware of, that have not been covered here? Robert replied: No, I think we covered them all. The specificity of paragraph 8 and Roberts statement that the agreement was complete belie his quibbling arguments about the essential elements allegedly lacking in paragraph 8.

Quiet Title Action

Robert argues the trial court erred in determining there was no merit to his quiet title action. Roberts quiet title action contains two causes of action. In the first cause of action Robert stated he purchased the family home as his separate property, using an inheritance as down payment. Carolyn, according to Robert, agreed to take a 20 percent interest in the property in exchange for giving him a 20 percent interest in a property she expected to receive from her parents family trust. Carolyn never conveyed an interest in the property. According to Robert, Carolyn defrauded him into putting her on the title and breached their agreement.

In the alternative, Robert argued the agreement under which he gave Carolyn a 20 percent interest in the family home was void because of his unilateral mistake of fact in believing Carolyn would perform her part of the property exchange. Robert requested an order setting aside the family law judgment, an order quashing the writ of execution, and a judgment quieting title in his favor.

Carolyn contends the trial court properly rejected Roberts quiet title causes of action. We agree.

As a preliminary matter, we note that pleadings in family law are strictly limited to the forms adopted and approved by rule of the Judicial Council. Neither party to the proceeding may assert against the other party or any other person any cause of action or claim for relief other than for the relief provided in these rules, Family code sections 17400, 17402, and 17404, or other sections of the Family Code. (Cal. Rules of Court, rule 5.104.) Those rules and official forms apply to every action and proceeding as to which the Family Code applies . . . . (Cal. Rules of Court, rule 5.20.) They supersede and preempt the rules of civil procedure that apply in ordinary civil litigation. (Fam. Code, 211.) To the extent they conflict with other statutes or rules, these rules prevail. (Cal. Rules of Court, rule 5.21.)

As Carolyn points out, there is no family law rule allowing a party to file a cause of action to quiet title to property. Nor is there any Judicial Council form of a cause of action to quiet title.

Robert cites no such authority but instead relies on In re Marriage of McNeill (1984) 160 Cal.App.3d 548 (McNeill). In McNeill, the court consolidated an action to quiet title to the family home with a family law proceeding. The wife in McNeill defrauded her husband into conveying his separate property to her. After husband discovered the fraud, he sued to rescind the marital settlement agreement, to quiet title, and for compensatory and punitive damages. Wife filed a petition for dissolution, arguing the settlement agreement was binding. The appellate court held the trial court properly consolidated the two proceedings. (McNeill, supra, 160 Cal.App.3d at pp. 556-558.)

Robert, in contrast, did not file a separate quiet title action and then request consolidation. Nor did Robert seek damages; he simply requests the court determine the family home is his separate property.

On the merits, even if Robert were entitled to file a separate cause of action to quiet title, the court did not abuse its discretion in rejecting his claims. Robert filed a declaration stating that Carolyn agreed to give him an interest in the Janesville property in return for a 20 percent interest in the family home. Robert produced no other evidence to support the alleged agreement. Carolyn countered with deposition testimony denying the parties ever discussed the matter.^[7]

As we have observed, the trial court determines the credibility and weight of evidence; we do not. The court acted within its discretion in finding Roberts quiet title action lacked merit.

Carolyns Interest in Williams

Finally, Robert argues the trial court erred in refusing to vacate the judgment because Carolyn failed to fully disclose her community interest in Williams in her final declaration of disclosure under Family Code section 2105 prior to settlement.

Each party to a family law proceeding must serve a preliminary disclosure declaration containing information about all assets in which the party has an interest and any outstanding liabilities. (Fam. Code, 2104.) The parties must serve a final declaration of disclosure prior to the entry of judgment. (Fam. Code, 2105.) The court may not enter judgment as to property rights unless the parties have served the final disclosure declaration. (Fam. Code, 2106.) The court may grant relief from a judgment based on a failure to comply with the disclosure requirements. (Fam. Code, 2122, subd. (f).)

In order to set aside the judgment, the party challenging the disclosure declaration must show prejudice stemming from the failure to disclose. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 527.) The party must establish that a result more favorable to him would have been reached in the absence of the error. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)

Robert claims Carolyns disclosure declaration was inadequate because it listed her interest in Williams as member without controlling interests and assigned no value to her interest. In the trial court, Robert argued Carolyn held a community interest in Williams, that she had done work for the company, and that she received benefits from Williams worth over $110,000.

Carolyn, in deposition, testified her parents set up Williams as an estate planning device to avoid probate. She and her two sisters each held a 14 percent interest in the company. Income to Williams was completely under the control of Carolyns father and was reinvested, not distributed to Carolyn or her sisters.

Because it was a partnership, Williams income was attributed to its members, including Carolyn. Carolyn did not receive an actual payment; instead, income was attributed to her for tax purposes. The only income Carolyn received from Williams was payments from her father, who sent her the money necessary to pay the taxes on the Williams income.

Robert asserted Carolyn held a community interest in Williams, an interest not fully disclosed on the disclosure declaration. The trial court, in denying Roberts motion to vacate, rejected this contention. Substantial evidence supports the trial courts decision.

Carolyns deposition testimony established that Williams existed solely as an estate planning device. Robert offered no evidence to rebut Carolyns statements. In addition, Roberts counsel advised him in a correspondence that: I do not see how the community would have been able to acquire any interest in this LLC [Williams]. Apparently, the members can only sit around and wait until the general partners die at which time the shares are distributed. When stipulating to the settlement, Robert acknowledge[d] wifes trust and limited liability company interests as her separate property . . . .

Robert failed to produce any evidence that he or Carolyn invested any time or money in Williams. Instead, Robert baldly asserts Carolyn did some work for Williams and received income and benefits from Williams totaling, in Roberts estimation, more than $100,000. However, Carolyn testified she spent no more than a couple of hours a month paying bills for Williams. The only payments Carolyn received in connection with Williams were the sums her father gave her to pay the taxes. Her father reinvested all income generated by Williams.

In considering Roberts claim that Carolyn failed to accurately describe her interest in Williams in her disclosure declaration, the trial court could choose to find Carolyns version of events more reliable than Roberts unsupported accusations. Sufficient evidence supports the trial courts denial of Roberts motion to vacate the judgment.

DISPOSITION

The judgment is affirmed. Carolyn shall recover costs on appeal.

RAYE , J.

We concur:

SIMS , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] As Carolyn notes, Robert did not make this argument in opposing the earlier enforcement motion.

^[3] The parties expend a great deal of sound and fury over whether Robert may appeal the denial of his first and second motions to vacate, or issues implicated therein. However, we consider only the trial courts ruling on Roberts third motion to vacate. Robert appealed only from that order.

^[4] Carolyn argues that Robert cannot assert these claims because he failed to raise them in his two prior motions to vacate. According to Carolyn, the prior judgments denying his motions to vacate are res judicata on these issues. However, as Carolyn concedes, Robert never argued duress or undue influence in the prior motions. Nonetheless, Carolyn contends Robert could have brought his claims in the prior motions and offered no explanation for his failure to do so. Unfortunately, Carolyn never raised the issue of res judicata in the trial court. Her opposition to the third motion to vacate challenges Robert on the merits of his claims; it does not argue such claims are barred by the prior rulings.

^[5] Family Code section 2127 provides: As to actions or motions filed under this chapter, if a timely request is made, the court shall render a statement of decision where the court has resolved controverted factual evidence.

^[6] Robert contends he was denied due process when the court entered judgment on the agreement, because there was no noticed motion under section 664.6. However, as Carolyn points out, Robert failed to assert a due process claim in the trial court. Nor did Robert make a special appearance to object to the lack of notice before the court entered judgment. Instead, Robert continued in the litigation without objection. Therefore, Robert has forfeited the issue. (People v. Birmingham (1990) 217 Cal.App.3d 180, 183; Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.)

^[7] In a confusing, convoluted second cause of action, Robert seeks to prevent Carolyn from enforcing the judgment against the family home. Robert requests that we quash the writ of execution issued by the trial court in the enforcement proceeding. Under Roberts theory, by giving him the grant deed, Carolyn extinguished his liability for the $50,000 equalization payment. Roberts argument is untenable. He agreed to make the equalization payment but insisted he could not make it until Carolyn delivered the deed so he could refinance. He cannot now argue Carolyns delivery of the deed extinguished that obligation.