Rosmarin v. Rosmarin

Filed 2/16/07  Rosmarin v. Rosmarin CA1/1

NOTTO BE PUBLISHED IN OFFICIAL REPORTS

CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b).  This opinion has not been certified forpublication or ordered published for purposes of rule 977.

INTHE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRSTAPPELLATE DISTRICT

DIVISIONONE

            Adena M. Rosmarin andPeter Michael Rosmarin[1]executed an agreement in October 2001, settling two actions brought by Adena arisingfrom the parties' 1987 maritalsettlement.  After this court affirmed the enforceability of the 2001settlement agreement in an earlier appeal, Peter moved successfully in the trial court for an award of attorney feesthat he incurred in litigating that issue to resolution.  Adena contends thatthe award is unauthorized by Civil Code section 1717 or by the parties'agreement.  We disagree, and uphold the award.

I. BACKGROUND

            The litigation givingrise to this attorney fee dispute was the subject of this court's nonpublished opinionin Rosmarin v. Rosmarin (July 19, 2005, A105607 & A105716) (RosmarinI).  Portions of the following are taken verbatim from that opinion.

            In connection withtheir 1987 divorce, the Rosmarins executed a marital settlement agreement (hereafter MSA) addressing various childsupport, spousal support, and property issues.  In the MSA, the Rosmarinsagreed that although neither party needed spousal support from the other atthat time, the court would retain jurisdiction to award spousal support in thefuture upon a showing of good cause.   

            In August 1999, Adenafiled a motion in the divorce case seeking spousal support and attorney fees.[2] The motion was premised, in part, on Adena's belief that Peter had hidden theexistence of community property assets from her at the time of the divorce.  InJanuary 2000, while a motion by Adena to compel Peter to provide furtherdiscovery concerning his assets was still pending in case No. 820853-4, Adenafiled case No. 822388-3, alleging that Peter breached the propertywarranties he made as part of the MSA.[3] Adena sought an award of her asserted community interest in the omittedproperties, and other damages arising from concessions she allegedly made inthe MSA on various child and spousal support issues, in reliance on Peter'sfalse property warranties.  Peter denied all of Adena's material allegations.

            On October 12, 2001, with the trial in case No. 822388-3 set to begin in a few days, Peter and Adenanegotiated and executed a â€