Marriage of Arndt

Filed 8/29/06 Marriage of Arndt CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Claudia Silbar, Judge. Affirmed.

Law Offices of Robert S. Scuderi and Robert S. Scuderi for Appellant.

Law Office of Marjorie G. Fuller, Marjorie G. Fuller and Shara Beral Witkin; Law Offices of Hollie A. Lemkin, for Respondent.

David D. Arndt appeals from a postjudgment order that denied his application for one-half of the proceeds received by Kathleen J. Arndt from the sale of the former marital residence. He argues the judgment of separation so provides, and a subsequent deed transferring his interest to Kathleen did not modify the judgment because it was given pursuant to a void agreement to waive child support.^[1] We disagree and affirm.

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The Arndts were married in 1983 and separated in 1993. In 1996, a judgment of separation was entered.^[2] Based on the parties’ separation agreement, the family court awarded them joint legal custody of their child, with primary physical custody to Kathleen. The judgment provided the parties were to share medical expenses for the child, and the question of child support was reserved. It also ordered the former family residence sold, and the net sale proceeds divided equally between Kathleen and David. No time period for the sale was specified.

In June 1997, Kathleen and David decided to move ahead with the divorce. They believed there was about $30,000 in equity in the house, and Kathleen wanted to buy out David’s interest. According to Kathleen, David said it was not much, and since he had not paid any child support in the four years since the separation, Kathleen should just keep the house. After further discussion, Kathleen agreed to waive child support in return for David’s share of the house.^[3] Together they met with their accountant and asked him to prepare a quitclaim deed to effect the transfer. The accountant prepared the deed, David picked it up, and it was subsequently executed and recorded.

Kathleen did not sell the house until 2004. By that time, values had gone up substantially and the net proceeds amounted to approximately $400,000. David learned of the sale and sued for one-half the proceeds.

The matter began with a complaint filed in the Superior Court of Los Angeles County. It alleged the parties had separated, a judgment of separation ordered the residence to be sold and the proceeds divided between them, and the 2004 sale of the residence by Kathleen. Causes of action were set out for recovery on the judgment, fraud (falsely promising in the judgment to pay David one-half of the proceeds), conversion, constructive trust (on one-half of the proceeds), and punitive damages. On Kathleen’s motion, the complaint was transferred to Orange County, where it was given the same case number as the judgment of separation and assigned to the family law court.

Once back in Orange County, Kathleen responded with an order to show cause, seeking child support, reimbursement of medical expenses for the parties’ daughter (which were substantial due to childhood surgery and attendant medical care), a declaratory judgment that David was not entitled to anything from the sale of the residence, and attorney fees.^[4] Later, she answered the complaint with a general denial.

A trial on all issues was held before the court. In a statement of decision, the trial court found for Kathleen on all causes of action in the complaint. It reasoned that Kathleen’s agreement not to seek child support in return for David’s share of the residence was a valid modification of the separation judgment, and the quitclaim deed transmuted the residence from community property to Kathleen’s separate property. (Fam. Code, § 852.)

I

David argues he is entitled to recover on the judgment of separation because it was not modified by the parties’ agreement. He reasons that a court cannot alter a final judgment, and in any event, the agreement waiving child support was void and did not change the judgment. We agree the judgment was not modified, but the decision denying David recovery was correct, and it must be affirmed.

We review the trial court’s decision, not its reasoning. “[A] trial court decision will be upheld even where it is based on an incorrect rule of law, as long as a sound legal basis for the decision exists. [Citations.]” (Estate of Beard (1999) 71 Cal.App.4th 753, 777.)

The evidence shows David conveyed his interest in the house to Kathleen in exchange for a waiver of past and future child support. They did not purport to modify the judgment of separation.^[5] Rather, what occurred is David chose to transfer to Kathleen an interest in real property that had been awarded to him by the judgment. There is no rule that prevents a party from disposing of his or her property, real or personal, simply because it was acquired by judgment rather than purchase or gift.

David suggests there was a failure of consideration that allows him to rescind the conveyance. He argues an agreement waiving child support is void. He is mistaken. The complaint does not seek rescission, nor does the evidence provide any basis for it. A waiver of child support is not void, and it may be enforced between the parties (as we shall explain below), so no failure of consideration has been shown. The decision denying relief on David’s complaint was correct -- he conveyed his interest in the house to Kathleen, and he cannot now set aside that transaction.

The law does not regard an agreement waiving child support as void. The waiver is not binding on the child or the court (see, e.g., Elkind v. Byck (1968) 68 Cal.2d 453, 457 [“[I]t has long been the law of this state that parents cannot abridge the right of their minor children to proper support by any agreement.”]), but it is enforceable between the parties. For example, in Allen v. Allen (1956) 138 Cal.App.2d 706, 708-709, the court found an agreement by one parent to pay a lump sum in full satisfaction of present and future child support was “valid and binding“ between parties, even thought it did not limit court’s power to make orders necessary for support of minor children. The same rule was applied in Hunter v. Hunter (1959) 170 Cal.App.2d 576. There, the court held a wife who released her husband from any obligation to support their children could not recover child support, because she was suing on her own behalf and made no claim the children lacked adequate care or were in need.

In this case, David did get something in return for his share of the house. As long as Kathleen has the ability to provide for the care and needs of their child, she will be barred from seeking child support by their agreement. If her fortunes decline, and the child is in need, the family court retains the power to order David to pay child support. The simple fact is that David struck a bargain that looked good at the time, and he cannot get out of it now that increased real estate values make it look less attractive in retrospect.

David cites numerous cases for the proposition that an agreement compromising a parent’s support obligation is void. But that is not what his cases say. They hold only that a waiver of child support is not binding on the child or a court. The only decision to go further is In re Marriage of Bereznak (2003) 110 CalApp.4th 1062. There, the parties agreed to submit child support disputes to binding arbitration. An award was made, and confirmed. On appeal, the losing party argued the agreement was void because it deprived the court of the power to modify child support and compromised the children’s right to support. The court held the agreement could not bind the court or the children to the arbitrator’s award, but the agreement was “not wholly void.” (Id. at p. 1070.) It explained that while the award could not be confirmed or vacated (because that would have limited the trial court’s power of review), either side could have asked the trial court to exercise its reserved jurisdiction over support to independently review the award. So there is no authority for the proposition that the agreement in this case was void.

II

David also argues the trial court was wrong when it reasoned the quitclaim deed transmuted the parties’ community property interest in the residence into Kathleen’s separate property. He contends the deed does not satisfy the statutory requirements for a valid transmutation. (Fam. Code, § 852.) Kathleen agrees there was no transmutation, but for a different reason. She contends the residence was no longer “marital property” following the judgment of separation, so the transmutation rules do not apply.

In light of our conclusion that the conveyance was valid, we need not consider this issue. We do note there is no suggestion that any question was raised whether Kathleen was the sole owner of the house when she sold it, which is some indication that the purchaser, and any lender or title insurer involved, believed she held title as separate property. (The quitclaim deed recites a transfer from David D. Arndt and Kathleen J. Arndt, husband and wife, to Kathleen J. Arndt, a single woman.) But we need not express an opinion on this issue.

Since David Arndt conveyed his interest in the property in question to Kathleen Arndt, and no basis is shown to set aside that conveyance, the order appealed from is affirmed. Kathleen Arndt is entitled to costs on appeal.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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^[1] To avoid confusion, we shall refer to the parties by their first names.

^[2] We consider the evidence most favorable to the order below, under the rule that an order or judgment of the lower court must be presumed correct, and all inferences indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)

^[3] Kathleen’s asserts “the parties did not limit the amount of child support [nor] release David from his support obligations.” The record belies the claim. Kathleen testified “I eventually agreed that I’d take ownership of the house in exchange for waiving child support forever thereafter, basically.”

^[4] The order to show cause does not appear in the record. We know of its contents from our independent review of the superior court file.

^[5] A judgment of separation that finally settles the parties’ property rights, like any other final judgment, cannot be later modified by a court. (In re Marriage of Farrell (1985) 171 Cal.App.3d 695, 701-702; see In re Marriage of Brown (1976) 15 Cal.3d 838, 851, fn. 13.)