Filed 5/27/22 Marriage of Waddell & Dean CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the judgment of the Superior Court of Los Angeles County, Gia G. Bosley, Judge. Affirmed.

Law Offices of Angela Swan, Angela Swan; and Travis M. Poteat for Appellant.

The Law Office of Aaron Leetch and Aaron J. Leetch for Respondent.

The instant appeal is from a judgment in a dissolution action between appellant Billy Edwin Waddell and respondent Virginia Dean (formerly Virginia Waddell).[1] The judgment adopted the terms of a marital settlement agreement signed by both parties and their respective counsel (the MSA). Billy argues the MSA does not reflect the terms to which he and Virginia orally agreed regarding the distribution of Billy’s pension plans. He claims he signed the MSA without reading it because Virginia and her lawyer led Billy and his lawyer to believe that the MSA distributed the pension plans consistent with the parties’ oral agreement as Billy and his counsel understood it.

Billy argues that the MSA is sufficiently ambiguous that the trial court should have admitted extrinsic evidence of the parties’ negotiations to support his interpretation of the MSA. He further argues that the MSA is the product of fraud and/or mistake, that enforcing it would be inequitable, and that we should therefore set it aside and reverse the judgment on which it is based. Virginia contends that Billy may not raise any of these arguments on appeal, because the MSA waives the parties’ right to appeal.

We need not decide whether Billy waived his right to appeal, because other grounds support affirmance. The terms of the MSA are not ambiguous, and we thus need not consider whether extrinsic evidence supports Billy’s alternative interpretation. Further, Billy’s chosen ignorance of the MSA’s contents before signing it defeats his fraud and mistake arguments. Nor has Billy established that enforcing the MSA would be inequitable. Accordingly, we affirm the judgment.

FACTS AND PROCEEDINGS BELOW

Billy and Virginia married in 1962 and separated sometime between 1985 and 1991.

A. Initial Dissolution Proceedings and Status Only Judgment

Billy filed a petition for dissolution of marriage in 2016. On August 17, 2018, the trial court entered a “status only” judgment, restoring the parties’ marital status to “single persons.”[2] The reserved issues included division of various assets—in particular Billy’s Southern California IBEW Pension (SCIBEW Pension), IBEW Pension Benefit Fund, and National Electric Benefit Fund (NEBF), spousal support, attorney fees, and costs.

B. The MSA

On June 18, 2019, the parties attended a mandatory settlement conference at the courthouse, at which both parties and their counsel signed the MSA. Virginia’s counsel prepared the seven-page MSA using a standard family law “stipulation/settlement agreement” form. (Capitalization omitted.) On the first page of the document, the box for the caption “stipulation to further judgment on reserved issues” is checked, as is a box indicating: “Settlement Agreement[.] [¶] The orders agreed to herein shall be included in a judgment or further judgment to be filed herein.” (Capitalization omitted.) Above the signature block where the parties (and their respective attorneys) signed, the MSA provides: “I HAVE READ AND I AGREE TO EACH PAGE OF THIS DOCUMENT AND ANY ATTACHMENTS. I UNDERSTAND THAT, UNLESS OTHERWISE STATED HEREIN, THESE AGREEMENTS ARE TO BE COURT ORDERS.”

A box on the MSA is checked indicating that Virginia and Billy were each “provisionally awarded, without prejudice, and subject to adjustment by a later domestic relations order, a separate interest equal to one-half of all benefits accrued or to be accrued under any retirement plan in which one party has accrued a benefit.” (Boldface omitted.) On the same page of the MSA, the following more specific, non-provisional distribution of pension assets is typed into the form: “[Virginia] shall be awarded 50 [percent] of [the SCIBEW pension] and 33.33 [percent] of [the NEBF] on a going‑forward basis (to be divided by [a qualified domestic relations order (QDRO)]. So long as [Virginia] is receiving spousal support, any retroactive amount of [the SCIBEW pension] that [Virginia] may be owed as community property is waived . . . . The IBEW[ ] [P]ension [Benefit Fund] shall be awarded entirely to [Billy].” The MSA provided that the temporary spousal support Virginia was receiving (in the amount of $1,657 per month) would terminate upon completion of an QDRO[3] instructing the SCIBEW pension administrator and the NBEF administrator to pay Virginia directly in accordance with the MSA’s interest allocation of those pension funds.

The MSA did not award Virginia any amount based on her allegation that, without her knowledge or consent, Billy “ ‘cash[ed] out’ ” of what she claimed was another community property pension, an allegation based on which Virginia was seeking over $300,000 at trial. The MSA further provided Billy would receive the parties’ real property in Tehachapi, California, that each party would keep all other property and debts in their own respective names or possession, and that Billy would dismiss “as against [Virginia]” a federal lawsuit pending against her, a pension administrator, and JPMorgan Chase, alleging Virginia forged Billy’s signature and cashed SCIBEW-NECA pension checks sent to her in error post‑separation. The MSA required that the dismissal of the federal suit be “with prejudice . . . and [required that] no further legal actions regarding the same subject matter shall be filed.” Finally, the MSA required each party to bear their own attorney fees and costs. The MSA did not identify a date of separation.

In a section entitled “ORDERS RELATING TO JUDGMENTS ONLY[,]” the MSA also provided: “All parties waive their right to appeal, to request a statement of decision, and to move for a new trial.”

C. Billy’s Refusal to Sign Proposed Stipulated Judgment

Following the execution of the MSA, Virginia’s attorney prepared a proposed stipulated judgment using a standard family law form. The terms of the proposed judgment followed the MSA, with the exception of a mutual release, not expressly referenced in the MSA, of “all interspousal obligations . . . and all claims to the property of the other” and a related waiver under Civil Code section 1542.[4] Some terms in the MSA were not expressly covered by the proposed stipulated judgment, such as Billy’s commitment to dismiss his federal lawsuit against Virginia, but the MSA itself was attached to the proposed stipulated judgment.

On July 16, 2019, Virginia’s counsel sent the proposed stipulated judgment to Billy’s counsel for her review. Virginia’s counsel experienced difficulties obtaining a response. Almost two months later, on September 6, 2021, Billy’s counsel informed Virginia’s counsel that Billy did not agree with dividing his pensions as specified in the MSA and thus would not sign the proposed stipulated judgment. Billy claimed he realized only months after signing the MSA that it did not match his and his counsel’s understanding of the terms to which they had orally agreed at the mandatory settlement conference.

Virginia’s counsel refused to change the terms of the proposed stipulated judgment to reflect Billy’s stated understanding of the MSA, and Billy refused to sign the proposed stipulated judgment.

D. Virginia’s Request for Order Entering Proposed Stipulated Judgment

On September 30, 2019, Virginia filed a request for order “[e]nter[ing] [the] proposed [stipulated] judgment on reserved issues,” despite Billy’s refusal to sign it, pursuant to Code of Civil Procedure section 664.6. (See Code Civ. Proc., § 664.6, subd. (a) [“the court, upon motion, may enter judgment pursuant to the terms of” “a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof”].) Billy filed a form “responsive declaration to [the] request for order,” signed by Billy’s counsel. (Capitalization omitted.) The record does not contain a corresponding declaration signed by Billy. In it, Billy’s counsel declared that, at the June 18, 2019 settlement conference, the parties had agreed to “divide [the SCIBEW] pension 50 percent. The relevant dates would be from date of marriage 1962 to the date of 1989. [¶] The parties compromised and agreed th[at] the date of separation would be 1989. The NEBF pension would be divided with [Virginia] obtaining 33 percent of the pension. The relevant date would be the date of marriage to 1989.” Billy’s response identified the pension distribution provisions of the MSA as the only portions of the requested order to which Billy did not consent. Neither in opposing Virginia’s motion/request for order, nor at any other time, did Billy move to set aside the MSA.

In reply, Virginia’s counsel filed a declaration. The record shows that, like Billy, Virginia did not present her own declaration. Virginia’s counsel denied even discussing the date of separation while negotiating the MSA on June 18, 2019 “because the date of separation was irrelevant to any term contained in the MSA.” Rather, according to Virginia’s counsel, after the parties had executed the MSA, “the QDRO attorney . . . stated it needed us to provide a date of separation,” and so “[o]n July 2, 2019, [Billy’s counsel] and [Virginia’s counsel] had a phone call and . . . decided to use June 30, 1988 (the midpoint of the parties’ respective claims on the pleadings) for any clerical matter which required a ‘date of separation’ to be stated.”

Following a hearing, the trial court granted Virginia’s request for order, and on January 17, 2020, entered the proposed stipulated judgment as the final judgment on reserved issues (the judgment).

Billy filed a timely notice of appeal from the judgment.

DISCUSSION

Billy asks this court to reverse the judgment, set aside the MSA, and remand the matter to the trial court for further proceedings. Virginia contends that Billy may not seek such relief, because he waived his right to appeal and, in any event, Billy’s arguments on appeal are without merit. We agree that his appeal is without merit and thus need not decide if he waived his right to appeal.

A. The MSA’s Pension-Related Provisions Are Not Ambiguous

Billy argues that the MSA’s provisions related to the SCIBEW and NEBF pensions are ambiguous, and that, in light of extrinsic evidence, the trial court should have interpreted the MSA as not granting Virginia any interest in either plan after a specific date of separation he claims the parties agreed upon (but did not include in the MSA). We disagree. “When the language of a contract is ‘clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language.’ ” (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 688.) “A term of the agreement is ambiguous if it is susceptible of more than one reasonable interpretation.” (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 (Iberti).) When it is not ambiguous, “[e]xtrinsic evidence of the parties’ intentions is inadmissible to vary, alter, or add to the terms” to the agreement. (Id. at p. 1440.)

The MSA’s language that “[Virginia] shall be awarded 50 [percent] of [SCIBEW] pension and 33.33 [percent] of [the NEBF]” is clear and explicit and reasonably susceptible to only one meaning. Billy, however, argues to the contrary, because the MSA does not contain a separation date, which he claims is necessary to the division of assets. But neither the MSA language distributing the SCIBEW and NEBF pensions between the parties, nor any other provision in the MSA, requires, refers to or relies on the date the parties separated. Although a date of separation may be necessary if one is dividing assets according to default Family Code rules at trial, parties are free to contract for a different division of assets that, like the MSA’s division of the pension plans, does not rely on a date of separation. (See Fam. Code, § 2550 [“[e]xcept upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall . . . divide the community estate of the parties equally”]; Fam. Code, § 771, subd. (a) [“[t]he earnings and accumulations of a spouse . . . after the date of separation of the spouses, are the separate property of the spouse”].) The lack of a date of separation in the MSA thus does not render the otherwise unambiguous pension-related provisions susceptible to more than one meaning.[5]

Moreover, the MSA “is not reasonably susceptible of [Billy’s] proffered interpretation[,]” because he “asks this court to add qualifying language to the agreement” (see Iberti, supra, 55 Cal.App.4th at p. 1440)—namely, that Virginia should not actually receive 50 percent of the SCIBEW pension as the MSA provides, but 50 percent of it up to the date of separation. This “would substantially alter the agreement reached by the parties as clearly and explicitly stated in the . . . [MSA]. This we cannot do.” (See ibid.) The court did not err in enforcing the literal meaning of these clear and explicit provisions via the judgment and declining to consider extrinsic evidence purportedly supporting Billy’s alternative interpretation.[6]

B. The Trial Court Did Not Err in Declining to Set Aside the MSA as the Product of Fraud and/or Mistake

Billy argues that the trial court erred by failing to set aside the MSA as a product of fraud and/or mistake. Specifically, Billy argues Virginia deceived him by “represent[ing] during the settlement [conference] that the MSA would accurately represent their intentions and [that Billy could] thereby [sic] sign the MSA without further inquiry”—that is, without reviewing it.[7] He claims he only signed the MSA based on this mistaken understanding that it reflected Billy’s understanding of the parties’ oral agreement, and nothing more.

“[O]rdinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms.” (Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049.) Only when a party misunderstands the nature of what he signs “without negligence on his part” can such a lack of understanding potentially affect the validity of the resulting document. (C.I.T. Corp. v. Panac (1944) 25 Cal.2d 547, 549 (C.I.T.); see Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710 [“one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument”]; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1156 [“[f]ailing to read a [contract] (or its table of contents) is not sufficient reason to hold a clear and conspicuous [contract] provision unenforceable”].) One who, “ ‘in the absence of extenuating circumstances, relies without investigation of his own on the representations of the person at whose request he signs is guilty of negligence.’ ” (C.I.T., supra, at pp. 549−550.) Billy identifies no extenuating circumstances, and thus his own negligence in relying on purported representations by Virginia and her counsel in choosing to sign the MSA prevents him from challenging the agreement based on ignorance about its contents. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 419–420 [“fraud does not render a written contract void where the defrauded party had a reasonable opportunity to discover the real terms of the contract,” italics omitted].)

In the section of his brief arguing that the MSA should be set aside based on fraud, Billy states, “Virginia attach[ing] Form FL-345 [containing a mutual release of claims and Civil Code section 1542 waiver] to the [p]roposed [j]udgment without Billy’s consent [is] an attempt to indemnify herself and force Billy to dismiss his entire federal case.” He argues the mutual release of claims is inconsistent with an aspect of the parties’ oral agreement he acknowledges is reflected in the MSA—that he be permitted to continue his federal lawsuit against defendants other than Virginia. Having failed to object below to the inclusion of the claims waiver in the proposed stipulated judgment, he has forfeited this argument.[8] Moreover, he does not explain how the inclusion of this term is inconsistent with the MSA.

As to Billy’s mistake argument, a mistake sufficient to void a contract is one reflecting a “[b]elief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.” (Civ. Code, § 1577, italics added.) The mistake Billy identifies is one regarding the contents of the contract—not a thing material to the contract. Were a mistake about the contents of a contract sufficient, without more, to void it, contractual obligations would be forever subject to revisions based on the subjective understandings of the parties. This is not the law.

C. The Trial Court Did Not Err in Declining to Set Aside the MSA as Inequitable

Billy also argues the trial court should have set aside the MSA as inequitable. He cites authority for the proposition that “[a] stipulation may be set aside ‘ “where special circumstances exist rendering it unjust to enforce the stipulation” ’ ” and that “a court, in the interest of fairness, may relieve a party from the effect of a stipulation. [Citation.]” (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1477.) He claims that the distribution of the pension plans is a “windfall” to Virginia. But in order to establish that the MSA is inequitable, Billy needed to show that the MSA as a whole awards Virginia a “windfall”—he cannot focus on only one of several of its provisions. But Billy does not even attempt to make any such showing.[9] Nor does he identify any other basis to support that the distributions are inequitable.

DISPOSITION

The judgment is affirmed. Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

MORI, J.*

[1] Because the parties formerly shared a surname, we refer to them by their first names. No disrespect is thereby intended.

[2] The status only judgment is contained in a motion to augment the record that Virginia filed with this court. The proposed augmentation also includes Virginia’s trial brief in the dissolution action. We hereby grant the motion to augment, as both of the documents Virginia identifies were filed with the court below and are relevant to assessing Billy’s arguments on appeal. (See Cal. Rules of Court, rule 8.155(a)(1)(A).)

[3] Under federal law, “private retirement plans may, pursuant to a state court’s domestic relations order, pay a portion of an employee participant’s retirement benefits directly to the employee’s former spouse or dependents . . . . Such an order is a ‘qualified domestic relations order.’ ” (In re Marriage of Oddino (1997) 16 Cal.4th 67, 71.)

[4] Specifically, the proposed stipulated judgment provides that, “[e]xcept as otherwise provided in this stipulated judgment, each party hereby releases the other from all interspousal obligations, whether incurred before or after the date of signing, and all claims to the property of the other. This release extends to all claims based on rights that have accrued before the marriage, including, but not limited to, property and support claims. . . . Each party waives, with respect to the other, the benefits of Civil Code [section] 1542, which protects against the inadvertent waiver of material claims that one does not know or suspect to exist.”

[5] During oral argument before this court, Billy argued that the MSA was ambiguous because there is an inconsistency between the MSA section (section 551) generally addressing the provisional distribution of pension assets and the MSA section (section 556) awarding specific pension assets, on a non‑provisional basis, in the manner ultimately reflected in the challenged judgment. Because Billy did not raise this argument in his briefing on appeal—or, for that matter, at any point below—we need not consider it. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345, fn. 6 [“[A]n appellant’s failure to raise an issue in its opening brief waives it on appeal.”].) In any event, we see no inconsistency between the two sections. Section 551 addresses provisional distribution, and section 556 addresses permanent distribution. Section 551 was incorporated into the MSA by counsel checking a box on the form, whereas section 556 was drafted and inserted by counsel. The general form language in section 551 regarding provisional distribution of pensions does not render ambiguous language in section 556 addressing distribution of specific pension assets on a non-provisional basis.

[6] Because we conclude below that the MSA should not have been set aside, and that it was not ambiguous, the MSA is the “express declaration” “in writing” required by Family Code section 852 in order to transmute the post-separation portions of Billy’s pension funds into community property. (Fam. Code, § 852, subd. (a) [“[a] transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected”].) We thus disagree with Billy’s argument that the judgment does not comply with that section.

[7] Billy’s claim in his appellate briefing that he relied on Virginia’s representations regarding the contents of the MSA in signing the document necessarily implies he did not himself ascertain those contents by reading the document before signing. At oral argument, Billy’s counsel—who also signed the MSA—stated she had read the document, but in her briefing to this court, she represented she had only “scanned over the document and signed.”

[8] According to Billy, he discovered the mutual release and waiver of claims only after the court entered the judgment, and thus is excused from failing to raise the issue below.

[9] The SCIBEW pension and NEBF were not the only significant terms in dispute. Virginia was seeking an interest in the IBEW Pension Benefit Fund as well, based on her contention that it was 66.7 percent community property. She was also seeking $303,977.77 from Billy based on his “cash[ing] out” what she claimed was another community property pension without her knowledge or consent, permanent spousal support of $1,657 per month, and at least $50,000 in attorney fees and costs, none of which the MSA awarded her.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.