Marriage of Fuller

Filed 3/16/07 Marriage of Fuller CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Virginia O. Fuller (wife) appeals from an order incorporated into a final judgment of dissolution of marriage enforcing a marital settlement agreement entered into by the parties on September 30, 2005. She contends that the agreement is unenforceable because certain provisions are ambiguous and vague, and thus the trial court had no basis to find that there was a meeting of the minds. We affirm.

I. FACTUAL BACKGROUND

Clive Fuller (husband) brought this action for dissolution on June 11, 2003. The case was scheduled for trial on September 30, 2005. Before the trial commenced, the court ordered the parties to conduct one last settlement conference. The court also stated that if the parties could not reach a settlement, the trial would be continued until October 17, 2005. Over the course of approximately nine hours, the parties, represented by their respective attorneys, negotiated a settlement agreement that was reduced to a written stipulation signed by the parties and counsel. Wife later informed husband that she intended to rescind her agreement to the stipulation. On October 14, 2005, husband filed a motion under Code of Civil Procedure section 664.6 ( 664.6) to enforce the settlement agreement.

On October 17, 2005, prior to going forward with the trial, the court heard husbands section 664.6 motion. During the hearing, wife argued that she understood the mere signing of the stipulation on September 30, 2005, was not binding; rather, she believed that the agreement would only become binding when it was submitted to the court. After receiving oral argument from both sides, the trial court found that wifes testimony lacked credibility. The court granted husbands section 664.6 motion, finding that the settlement was entered into with advice of counsel, that it was reasonable, and that it was the result of hard bargaining. The court ordered that the stipulation be made an order of the court. The parties thereafter stipulated to dissolve their marriage. On February 14, 2006, the court entered a final judgment of dissolution of marriage.

II. DISCUSSION

Wife argues that the trial court erred in entering a judgment based upon an agreement omitting essential and material terms to which there was no meeting of the minds. In particular, she asserts that the provisions of paragraph 5 of the agreement are ambiguous and vague with regard to what consequences would result if she was unable to make the mortgage payments on the Pinole residence and husband elected to make the payments.

Under paragraph 5 of the agreement, wife was awarded the Pinole residence as her sole and separate property with the implicit condition that she make mortgage payments on the outstanding encumbrance. This paragraph also provides that [i]f Wife anticipates that she will be unable to pay the monthly mortgage encumbrance, she will notify Husband in writing 10 days prior to the date the payment is due (not the late payment date). Husband will have the ability to pay the mortgage with consequences to be determined. As will be explained below, wifes contentions that this provision is vague and ambiguous, and that it is material and essential to the agreement ultimately fail.

In City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 428-429 (City of Los Angeles), the City of Los Angeles and the Brooklyn National League Baseball Club entered into a contract which provided for the exchange of various properties and for the ball club to erect a stadium on certain city land. Certain provisions of the contract left to the future agreement of the parties the location of a site to be used for oil drilling, the nature of recreational facilities to be constructed on a particular parcel of land, and the amount of rent to be paid to the city in the event the club exercised its right to use another baseball field prior to the completion of the Los Angeles stadium. (Id. at p. 433.) Various taxpayers then brought suit against the city (id. at p. 429), arguing that the contract was void because these provisions contained promises to agree in the future (id. at p. 433).

On appeal the Supreme Court held that [t]he enforceability of a contract containing a promise to agree depends upon the relative importance and the severability of the matter left to the future; it is a question of degree and may be settled by determining whether the indefinite promise is so essential to the bargain that inability to enforce that promise strictly according to its terms would make unfair the enforcement of the remainder of the agreement. (City of Los Angeles, supra, 51 Cal.2d at p. 433; see also Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 813.) Applying these rules to the facts, the Supreme Court upheld the enforceability of the contract, noting that despite the importance of the uncertain provisions, they were not matters which should . . . be treated as rendering the contract void. (City of Los Angeles, supra, 51 Cal.2d at p. 433.)

Similarly, in Wilson v. Wilson (1950) 96 Cal.App.2d 589, 593 (Wilson), the court recognized that  [t]he law does not favor but leans against the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained.  (Quoting McIllmoil v. Frawley Motor Co. (1923) 190 Cal. 546, 549, & Roy v. Salisbury (1942) 21 Cal.2d 176, 184.) Hence, where matters left for future agreement are unessential to the contract, each party will be forced to agree to a reasonable determination of the unsettled point or if possible the unsettled point may be left unperformed and the remainder of the contract be enforced. (Wilson, supra, 96 Cal.App.2d at p. 594.)

Here, the consequences to be determined provision of paragraph 5 was not an essential and material term of the parties settlement agreement. The gist of the stipulation entered into by the parties consisted of determining spousal support and healthcare coverage for wife, and allocating the parties two residences, vehicles and retirement accounts, as well as agreements regarding certain civil actions in which the parties were involved. Also, under paragraph 5 in particular, the parties clearly agreed that wife would be given the Pinole residence and that, in the event she was unable to make mortgage payments on it, husband would have the ability to do so. The to be determined language in this paragraph reflects that the consequences of such an eventuality were to be left for future agreement between the parties.

While the provision may be important, it can hardly be deemed a material or essential element of the settlement agreement as a whole, the main purpose of which was not to determine liability and reimbursement for a contingent event, but rather to allocate property and possessions between the two parties. In this way, the consequences to be determined provision was a minor matter that did not preclude enforceability of the contract. Rather, the parties agreed to resolve this unessential term in the future should the contingent event occur.

Wife argues that husband has interpreted paragraph 5 as allowing him to withhold spousal support payments in exchange for his payment on the mortgage. However, these facts are not in the record and were not presented before the trial court. Thus, we do not consider them on appeal. (SeeEisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 8:171, p. 8-117, citing Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) Should the parties be unable to agree on the consequences under paragraph 5, the trial court, rather than the appellate court, is the proper forum to adjudicate the matter. (See City of Los Angeles, supra, 51 Cal.2d at p. 433 [[t]here is no indication that the city and the ball club are unable to come to an agreement as to [the uncertain terms of the contract], and, if the parties cannot do so, the [trial] court may determine the matters . . . .].)

III. DISPOSITION

The judgment is affirmed.

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RIVERA, J.

We concur:

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REARDON, Acting P.J.

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SEPULVEDA, J.

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