Marriage of Lumsdaine

Filed 4/25/07 Marriage of Lumsdaine CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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, Mark Millard, Judge. Affirmed.

John L. Dodd & Associates, John L. Dodd; and John S. Cate, Jr., for Appellant.

Tredway, Lumsdaine & Doyle, Daniel R. Gold; Law Offices of Brian G. Saylin and Brian G. Saylin for Respondent.

* * *

INTRODUCTION

A judgment of dissolution of Charles J. and Linda E. Lumsdaines[1] 29‑year marriage was entered in December 1994. The judgment divided the community property interests and incorporated a marital settlement agreement. The judgment required that their residence located in Encinitas be listed for sale on June 1, 1995, and that Charles continue to pay mortgage payments, insurance premiums, and taxes on that property through May 31, 1995. Charles was to be reimbursed for those amounts he paid for the residence out of the sale proceeds. The residence was never listed, and Linda has been its sole occupant, rent-free, since 1994.

Charles subsequently married Rhonda Lowell, and they had a son. In November 2004, Charles passed away. In February 2005, Charless estate[2] filed an order to show cause (OSC) seeking an order that would facilitate the listing and sale of the residence. Linda responded by filing an OSC requesting that the court order Charless estate to pay her the amounts awarded to her in the judgment that remained unpaid, with interest, and to pay such amounts before the residence could be listed for sale. Following a hearing, the trial court issued a thorough and detailed order resolving the issues raised in the OSCs. Each party prevailed on some issues, and lost on others. Linda alone appealed from the trial courts order.

We affirm. We review and reject each of Lindas contentions on appeal as follows.

1. The judgment did not require that Linda receive the money awarded her in the judgment before the residence could be listed for sale. Thus, the trial court did not err by refusing to order Charless estate to pay Linda those amounts before the residence was listed for sale.

2. The judgment stated Charles and Linda were to receive the same specific lump sum amount from their various retirement accounts, and did not otherwise require Charles to transfer any other amounts to Linda. The trial court did not err by denying Linda interest on such amounts.

3. The trial court did not err by denying Lindas claim seeking a greater amount of principal from the Wells Fargo Bank individual retirement account (IRA) than was awarded to her in the judgment.

4. The trial court did not err by denying Lindas claim seeking a greater amount of principal from the Merrill Lynch cash management account (CMA) than was awarded to her in the judgment.

5. The trial court properly awarded Charless estate credits for amounts paid by him in mortgage payments, insurance premiums, and taxes on the residence since the judgment was entered.

6. Linda has failed to make any showing that she should be awarded attorney fees on appeal based on need within the meaning of Family Code section 2032.

BACKGROUND

I.

Judgment of Dissolution and
Marital Settlement Agreement

Charles and Linda married in May 1965 and separated in November 1992. On January 7, 1993, Linda filed a petition for dissolution of the marriage. Judgment of dissolution of the marriage, which incorporated a marital settlement agreement executed by Charles and Linda (MSA), was entered December 13, 1994 (the judgment).

The judgments division of the community assets provided (as relevant to this appeal) that Charles and Linda were each to receive: (1) $25,743 from the IRA at Wells Fargo Bank; (2) $31,731 from the IRA at Charles Schwab; (3) $6,100 from the Keogh account at Glendale Federal; (4) $93,500 from the C. J. Lumsdaine Company Defined Benefit Pension Plan; (5) $47,231.50 from 1988/1989 tax refund checks; (6) $7,500 from an anticipated 1993 tax refund check; and (7) $1,727 from a Merrill Lynch CMA. The judgment provided that each of these items fluctuate and are approximate.

The judgment awarded Charles the C. J. Lumsdaine Company (with an approximate value of $40,000), and required him to pay Linda an equalization payment of $8,900. With regard to the residence, the judgment stated it shall be maintained by the parties in joint ownership as tenants in common. Said residence shall be listed for sale on June 1, 1995, unless the parties mutually agree otherwise. [] Pending the sale of that residence [Charles] shall pay the mortgage payment, taxes and insurance associated with said property through May 31, 1995. At the time of the sale of said property, [Charles] shall be reimbursed for all amounts paid by him for the mortgage payment, taxes and insurance subsequent to the execution of the [MSA] of the parties. [] After reimbursement to [Charles] for the payment of said amounts, the balance of the proceeds shall be divided equally between the parties.

The judgment, through the incorporated MSA, further provided that Charles and Linda each represent and warrant to the other that all of the community property assets of [Charles] and [Linda] are set forth in this [MSA]. Furthermore, [Charles] and [Linda] each represent and warrant to the other that he or she has not made any gift of any community property or any transfer of any community property for less than adequate and full consideration, other than gifts or transfers as were made known to the other. [] If it is hereafter determined that either [Charles] or [Linda] possessed any community property that is not disclosed in this [MSA] or that either [Charles] or [Linda] has made any gift or transfer of community property that he or she has not made known to the other, the party making such gift or transfer shall pay to the other, on demand, a sum equal to one-half (1/2) of the fair market value of such concealed property or gift, valued as of the effective date of this [MSA], plus interest thereon at the rate of ten (10%) percent per annum accruing from the effective date of this [MSA] and continuing until the date such sum is paid. This [MSA] shall not constitute a waiver, by either party, of any other remedy available in a court of competent jurisdiction arising from the undisclosed ownership of or transfer of community property.

Neither the judgment nor the MSA awarded either party spousal support; instead, the trial court reserved jurisdiction over that issue.

II.

Lindas 1998 OSC; Stipulations

In March 1998, Linda filed an OSC (1998 OSC) seeking an order which would set aside the judgment and MSA, or require Charles to complete a final declaration of disclosure and to render a complete accounting of all assets and debts listed in the judgment. Linda also sought an order requiring Charles to forthwith turnover [sic] the amounts of the following assets that were awarded to her in the judgment and which she had not received: (1) the accumulations on the $25,743 from the Wells Fargo Bank IRA; (2) $31,731 plus accumulations from the Charles Schwab IRA; (3) $93,500 plus accumulations from the C. J. Lumsdaine Company Defined Benefit Pension Plan (which had been rolled over to a Merrill Lynch IRA); (4) $6,100 plus accumulations from the Glendale Federal Keogh account; and (5) $1,727 plus accumulations from the Merrill Lynch CMA.

In addition, Linda contended Charles failed to disclose numerous community assets to which she should have been awarded a 50 percent interest including proceeds on deposit at Edward D. Jones & Co., proceeds on deposit at Merrill Lynch in account No. 207‑xxx52, and proceeds on deposit at California Federal. Linda also requested that the court disallow Charles any credits for payments made after May 31, 1995, related to the mortgage, taxes and insurance for the residence which had never been listed or sold and where Linda continued to reside.

In April 1998, Charles and Linda stipulated that Charles would (1) pay Linda $2,200 monthly for spousal support; (2) continue to pay the monthly home equity loan payment on the Encinitas property;[3] (3) pay $1,500 toward Lindas attorney fees; (4) pay Linda $1,100 for a division of a Merrill Lynch CMA;[4] and (5) forthwith transfer $37,000 to a rollover IRA in Lindas name as and for the division of the I.R.A. at Charles Schwab.[5] The 1998 OSC was otherwise continued. The trial court signed the stipulation and so ordered.

On May 20, 1999, Charles and Linda stipulated that Linda would dismiss the 1998 OSC without prejudice because Charles and Linda had agreed to participate in a settlement conference. The stipulation further provided that [i]n the event the parties are unable to resolve all of the issues contained within [Linda]s motion, [Charles] agrees to accept service of process of any subsequent filing of such motion by [Linda] via mail upon his counsel of record. Charles also waives any and all objections to the timeliness of any subsequent filing of such motion by [Linda]. For purposes of determining the timeliness of the filing of [Linda]s motion, the original filing date of March 19, 1998 shall be deemed the filing date for such motion, irregardless of any subsequent filing date. The trial court signed the stipulation and so ordered.

III.

Charles Remarries; Charless Death;
Charless Estate and Linda File Separate
OSCs to Enforce Judgment

At some point in time not reflected in the record, Charles married Rhonda and they had a son. On November 15, 2004, Charles passed away. On December 10, 2004, the judgment was renewed.

On February 8, 2005, Charless estate filed an OSC seeking a facilitating order that [Linda] cooperate with the sale of the residence. In a supporting declaration, Rhonda stated she was unemployed and now a single parent of her minor son. She stated, [a]s trustee of our family trust, I am attempting to inventory our assets and liabilities . . . [which] include [Charles]s interests in various assets from his first marriage to [Linda]. She further stated that there were several liabilities, unrelated to Linda, which needed to be reconciled and creditors were attempting to collect on those debts. She explained, [t]he resources left after [Charles]s passing do not meet these obligations, and to enable our son and I to continue living in a stable home. I am in need of an expedited hearing on the facilitating order so that we can take advantage of what appears to be a continuing, relatively stable real estate market. She asserted the fair market value for the residence in which Linda was still living was between $900,000 and $1.2 million. She stated that the residence was over 5,000 square feet in size and had an ocean view. Rhonda stated that upon determining a fair rental value, she would be seeking Watts charges for Lindas exclusive occupancy after the mortgage was paid off.[6]

Linda opposed Charless estates OSC, arguing, inter alia, that the court should not make such an order until it can be determined what is owed [Linda] from the judgment. In a declaration, Linda stated she has lived in the residence since before the separation, is disabled, is unable to work, and has no other residence to which she may move or any income to facilitate such a move. She stated, I contend that I am owed over $600,000 from that judgment. The reason the home/property has not been sold is because [Linda] and [Charles] had mutually agreed not to sell the property until [Linda]s claims could be determined satisfactorily between them.

On August 31, 2005, Linda filed an OSC (the August 2005 OSC) seeking, inter alia, an order requiring Charless estate to be ordered to perform the terms of the judgment. Linda asserted numerous issues related to enforcement of the judgment which (as relevant to this appeal) included:

Item 2A Wells Fargo Bank IRA: Linda admitted that in January 1997, she received $25,743 from the Wells Fargo Bank IRA as provided in the judgment. She claimed she was entitled to interest on that amount from December 1994 through January 1997 at the legal rate of 10 percent per annum. In addition, she stated that in 1996 she learned the account contained $19,898.72 more in 1994 than was disclosed at the time the judgment was entered, and thus she was entitled to one‑half of that amount ($9,949.36), plus interest. Finally, she stated that in 1995, she discovered Charles had withdrawn $55,000 from the account in 1993, and thus she should be awarded one‑half of that amount, plus interest.

Item 2B Charles Schwab IRA: Linda argued she never received the $31,731 from the Charles Schwab IRA awarded to her in the judgment. She claimed this amount, plus interest.

Item 2C Keogh Account: Linda claimed she never received the $6,100 from the Keogh account as awarded to her in the judgment.[7] She sought that amount, plus interest.

Item 2D Merrill Lynch IRA: Linda claimed she never received the $93,500 from the Merrill Lynch IRA as awarded to her in the judgment. She claimed that amount, plus interest.

Item 2I Merrill Lynch CMA No. 207-xxx52: Linda claimed Charles failed to disclose this account, which she contended contained $2,060.89 in community funds. She discovered this asset in the fall of 1999. She sought one‑half of that amount, plus interest.

Item 2J Additional Funds in Merrill Lynch CMA No. 230-xxx82: Linda received $1,727 from this account as awarded to her in the judgment. Linda contended that in 1999, she learned that undisclosed community funds in the amount of $47,325.67 were contained in this account as of the date of the parties separation in November 1992. She sought half of that amount, plus interest, for a total sum of $23,662.83, less $1,727 that she had already received pursuant to the judgment.

Item 2K Edward D. Jones Company Debit Account: Linda stated she discovered an account that Charles was funding, in part, for his personal use. She claimed she was entitled to half of the amount deposited by Charles into that account in 1992 and 1993, plus interest.

IV.

Hearings on the OSCs

On October 31, 2005, the court held a hearing during which it addressed Charless estates OSC requesting a facilitating order for the listing and sale of the residence. In November 2005, the court ordered the residence listed for sale forthwith and further ordered that the parties shall cooperate in all aspects of the listing and sale.

Beginning in December 2005, the court conducted further hearings as to the outstanding issues raised in the August 2005 OSC and Charless estates OSC. Pursuant to the parties stipulation, the parties pleadings were admitted into evidence, subject to supplemental testimony and argument. (See Reifler v. Superior Court (1974) 39 Cal.App.3d 479.) The parties also stipulated that the declaration of Charless former attorney, Steven Briggs, should be admitted into evidence. Briggss declaration stated Charles and Linda never had an understanding that monies would have to be received by Linda before she would be required to cooperate with the sale of the residence and [t]he May 1, 1995 date was selected at her request to permit her time to get accustomed to the idea of moving from the Encinitas residence. He further declared, [t]o my knowledge, [Charles] refrained from selling the Encinitas residence on the May 1, 1995 date because Linda was quite ill. Once she recovered, he wished to move forward with the sale. During the time I represented [Charles], Linda, through her counsel, continuously delayed or refused to cooperate with the sale, by consistently directing their efforts and inquiry toward other aspects of the case.

V.

The Trial Courts Findings and Order After Hearing; Lindas Appeal

The trial courts findings and order after hearings was filed on June 23, 2006. With regard to the issues raised in the August 2005 OSC, the court found item 2I (Merrill Lynch CMA No. 207‑xxx52) and item 2K (Edward D. Jones Company debit account) constituted missed assets and awarded Linda $1,030 and $3,300 from each account, respectively. The court further ordered that interest would accrue on both amounts at the legal rate from the date the judgment was entered and would continue to accrue, per annum, until the awarded amounts were paid to Linda. The court also found Linda had not received the amounts awarded to her in the judgment from the Charles Schwab IRA (item 2B) and the Keogh account (item 2C).

The court denied Lindas claim to additional amounts of principal from the Wells Fargo Bank IRA (item 2A), stating, Linda is estopped from this claim as it is resolved by the Judgment and applicable statute of limitations, and laches would preclude the claim. The court also denied Lindas claim to additional principal from the Merrill Lynch CMA No. 230‑xxx82 (item 2J).

With regard to Lindas requests for interest on amounts in retirement accounts awarded in the judgment (items 2A, 2B, 2C, and 2D), the trial court stated, [u]nless a Judgment states that a retirement account shall be transferred forthwith it imposes upon one of the two parties to do that, that Judgment does not require interest. In the case at bar, there was no duty imposed upon [Charles] to transfer that portion of that account. Accordingly, only those assets, rather than IRAs, KEOGHs, or 401K shall be subject to interest accrual.

The trial court denied Charless estate Watts credits, stating, [t]he Court finds, in this case, the parties[] Judgment grants [Linda] use of the property with no corresponding language, in the Judgment, concerning rent or Watts charges. (Italics added.) The court found, however, that Charless estate was entitled to credits in the total amount of $181,558 for payments Charles made on community property (presumably, the residence).

The trial court further ordered that one‑half of the proceeds from the sale of the residence shall be placed in the attorney/client trust account of each partys respective attorney. The trial court further ordered, [i]f [Linda] is not paid the amounts due and owing by [Charles]s estate, prior to sale of the residence, the amount(s) of offsets/ payments shall be calculated and an accounting shall be placed in the escrow instructions for payment upon sale of the residence. Both parties were ordered to bear their own attorney fees and costs.

Linda appealed.

DISCUSSION

I.

The Judgment Did Not Require That Linda Must Receive Amounts Awarded to Her Therein Before
the Residence Could Be Listed and Sold.

In her opening brief, Linda contends the judgment required that she receive certain sums awarded to her in the judgment before the residence could be listed and sold. She contends the trial court erred by ordering the residence listed, regardless of whether she first received those sums.

The judgment was based on the parties MSA which, as discussed ante, was incorporated into the judgment. Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally. [Citation.] The basic goal of contract interpretation is to give effect to the parties mutual intent at the time of contracting. [Citations.] When a contract is reduced to writing, the parties intention is determined from the writing alone, if possible. [Citation.] The words of a contract are to be understood in their ordinary and popular sense. [Citation.] (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518.) Linda does not contend the trial court failed to admit or consider any extrinsic evidence in construing the terms of the judgment, or competent extrinsic evidence considered by the court was in conflict. When no extrinsic evidence is introduced, or when the competent extrinsic evidence is not in conflict, the appellate court independently construes the contract. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955.)

The MSA and the judgment each independently stated that the residence shall be listed for sale on June 1, 1995, unless the parties mutually agree otherwise. Linda failed to produce any evidence showing she and Charles mutually agreed that the residence would not be listed as directed in both the judgment and the MSA unless Linda had already received all monetary amounts awarded her in the judgment. Nothing in either the MSA or the judgment suggests that any condition needed to be satisfied before the residence could be listed. Had Charles and Linda intended to condition the sale of the residence on Lindas receipt of certain monetary amounts, such a condition could have been expressly included in the MSA.

Briggs stated in his declaration, [t]here was never any such understanding either express or implied that the monies would have to be received by Linda before she would be required to cooperate with the sale. The May 1, 1995 date was selected at her request to permit her time to get accustomed to the idea of moving from the Encinitas residence. He further stated, [t]o my knowledge, [Charles] refrained from selling the Encinitas residence on the May 1, 1995 date because Linda was quite ill. Once she recovered, he wished to move forward with the sale. During the time I represented [Charles], Linda, through her counsel, continuously delayed or refused to cooperate with the sale, by consistently directing their efforts and inquiry toward other aspects of the case. Notwithstanding Lindas waiver of all evidentiary objections to Briggss declaration and the stipulation that it be received into evidence, citing Oakland-Alameda County Coliseum, Inc. v. Oakland Raiders, Ltd. (1988) 197 Cal.App.3d 1049, 1058, Linda contends on appeal Briggss statements cannot be used to interpret the MSA.

In Oakland‑Alameda County Coliseum, Inc. v. Oakland Raiders, Ltd., supra, 197 Cal.App.3d 1049, the appellate court held that statements by counsel of unexpressed intent cannot be used to interpret a contract. A party is bound, even if he misunderstood the terms of a contract and actually had a different, undisclosed intention. (Id. at p. 1058.) Briggss declaration did not set forth evidence of unexpressed intent in entering the MSA; instead, he stated Charles and Linda had never reached an express or implied understanding that Linda would receive money under the judgment before the residence could be listed and sold.

Citing section 683.010 of the Code of Civil Procedure, Linda contends she was entitled to enforce the judgment immediately upon entry in December 1994 and receive the sums awarded to her therein. She argues, not only does the judgment not set forth any delay in paying the money from the accounts, but it does set forth a delay for listing the house for sale. The judgment was entered in December 1994, but the house was not to be listed until June 1, 1995. . . . Applying the doctrine of expressio unius est exclusio alterius, the specific postponement of the listing date is indicative of the requirement that payment of the funds to Linda was not to be postponed.

The statutory construction doctrine of expressio unius est exclusio alterius means the expression of certain things in a statute necessarily involves exclusion of other things not expressed[.] [Citation.] [W]here exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. (Bonner v. County of San Diego (2006) 139 Cal.App.4th 1336, 1347.) This doctrine has absolutely no application here. Neither the language of the judgment nor any extrinsic evidence admitted supports the conclusion that the residence could not be sold until Linda had received the monetary amounts awarded to her in the judgment. To the contrary, the sale of the house and Lindas receipt of the monetary amounts awarded to her in the judgment are completely independent of each other.

Linda argues the MSA and the judgment were structured so that she would receive the funds before the house was sold. But, California recognizes the objective theory of contracts [citation], under which [i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation [citation]. The parties undisclosed intent or understanding is irrelevant to contract interpretation. (In re Marriage of Simundza, supra, 121 Cal.App.4th 1513, 1518.)

Linda contends the trial court erroneously ruled that she would not receive the funds owed her from the 1994 judgment prior to the sale of the house. This is inaccurate. In November 2005, the trial court ordered that the residence be listed for sale forthwith. In the findings and order after hearings, the trial court stated, [i]f [Linda] is not paid the amounts due and owing by [Charles]s estate, prior to sale of the residence, the amount(s) of offsets/payments shall be calculated and an accounting shall be placed in the escrow instructions for payment upon sale of the residence. (Italics added.) Nothing in the trial courts order precluded Linda from obtaining the amounts awarded to her in the judgment before the residence was listed and sold.

Linda also contends equitable principles require Linda receive the funds adjudicated to be hers back in 1994 before the residence is sold, claiming that she does not have sufficient funds to buy another house or even make appropriate arrangements for her furniture. Family Code section 2123 states, [n]otwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.

In any event, Linda did not provide the trial court with any evidence of her financial situation that might support her assertion. She also argues she has waited over 12 years for the money awarded to her under the judgment. Her plea for equity cuts both waysLinda has exclusively benefited from the fact the residence was not listed and sold in 1995 as provided in the judgment, as she has solely occupied that residence rent‑free since that time.

We find no error.

II.

The Trial Court Did Not Err by Failing to Award Linda Interest on Retirement Account Amounts Awarded Her in the Judgment.

In the trial courts findings and order after hearings, the court stated, [u]nless a Judgment states that a retirement account shall be transferred forthwith it imposes upon one of the two parties to do that, that Judgment does not require interest. In the case at bar, there was no duty imposed upon [Charles] to transfer that portion of that account. Accordingly, only those assets, rather than IRAs, KEOGHs, or 401K shall be subject to interest accrual. As a result, the trial court did not award Linda interest on amounts awarded to her in the judgment, which were contained in the Wells Fargo Bank IRA, the Charles Schwab IRA, the Keogh account, and the Merrill Lynch IRA.

Linda contends the judgment did not provide for an in-kind division of the retirement accounts, but, instead, ordered a specific sum of money be paid, i.e. 25,743.00 from the Individual Retirement Account at Wells Fargo Bank. She argues the judgment therefore constituted a money judgment within the meaning of section 680.270 of the Code of Civil Procedure, and interest at the legal rate began to run on the amounts awarded her from the date of entry of the judgment, pursuant to sections 685.010, subdivision (a) and 685.020, subdivision (a).

Section 680.270 of the Code of Civil Procedure defines the term money judgment as that part of a judgment that requires the payment of money. Section 685.010, subdivision (a) provides that [i]nterest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied.

The judgment stated that Charles and Linda were each to receive the same dollar amount from each of the accounts and that these amounts were approximate and subject to fluctuation. The judgment did not require Charles to pay Linda any money from the retirement accounts. With regard to those amounts awarded Linda from the retirement accounts, we conclude the judgment did not constitute a money judgment within the meaning of section 680.270 of the Code of Civil Procedure and therefore did not accrue interest at the legal rate under section 685.010, subdivision (a). (See In re Marriage of Teichmann (1984) 157 Cal.App.3d 302, 307 [wifes award in judgment of $89,000 to be paid out of proceeds from sale of residence was distinguishable from money judgment in which the recipient spouse was to receive payments directly from the other spouse and thus did not accrue interest at legal rate from date of entry of judgment].)

Linda cites Wuest v. Wuest (1945) 72 Cal.App.2d 101 and In re Marriage of Pollard (1988) 204 Cal.App.3d 1380 in support of her argument. Both cases are distinguishable, however, because they involved money judgments wherein a sum was ordered payable from one spouse to the other. (In re Marriage of Pollard, supra, 204 Cal.App.3d at pp. 1382, 1384 [holding part of a judgment of dissolution which awards money in lieu of an in-kind division of nonmonetary community property is a money judgment on which interest accrues from the date of its entry].)

Linda did not seek the accumulations or appreciation of those amounts in the August 2005 OSC. That issue was not before the trial court, and it is not before us now. Linda solely sought interest at the legal rate, which, as discussed ante, was properly denied. In any event, the record fails to establish how much, if at all, those amounts have appreciated since 1994. We find no error.

III.

The Trial Court Did Not Err by Refusing to Award a Greater Amount from the Wells Fargo Bank IRA Than That Provided in the Judgment.

The judgment provided that Charles and Linda each shall receive $25,743 from the IRA at Wells Fargo Bank. Linda admitted that she received this amount in January 1997. She argues that in 1996, she learned that this account had a balance of $71,384.72 as of January 1, 1994. Thus, she contends, she was entitled to $9,949.36, plus interest, more than she was awarded for this asset in the judgment. In addition, Linda argues she learned in 1995 that Charles had withdrawn the sum of $55,000 from this account in 1993. She contends she is entitled to half of that sum as well.

The trial court denied Lindas claim she was entitled to more than was awarded her in the judgment for this account, stating, the Court finds and orders that [Linda] is estopped from this claim as it is resolved by the Judgment and applicable statute of limitations, and laches would preclude the claim.

The amount of community funds in the Wells Fargo Bank IRA was adjudicated in this action. In the MSA, Charles and Linda stipulated to the specific dollar amount each would receive from this account. The MSA was incorporated into the judgment and the judgment was entered in December 1994. Had Linda desired to move to set aside this part of the judgment based on fraud, Family Code section 2122, subdivision (a) required that such a motion be brought within one year after the date Linda discovered or should have discovered the fraud. Linda admitted she was aware of these additional amounts no later than 1996, and thus she would have been required to file such a motion in 1997. She did not do so. Section 2122, subdivision (e) required Linda to move to set aside this portion of the judgment based on mistake, either mutual or unilateral, within one year after the date the judgment was entered. Linda did not file such a motion within that time period.

With regard to the limitations periods set forth in Family Code section 2122, subdivisions (a) and (e) for motions to set aside any part of the judgment based on fraud or mistake, Linda contends Charles waived all time limits in the 1999 stipulation. Charles stipulated that he waived any objections to the timeliness of Linda refiling her 1998 OSC in the event that the parties settlement discussions failed. Lindas 1998 OSC sought recovery of accumulations on Lindas share of $25,743 contained in the Wells Fargo Bank IRA. Charles did not waive objections to issues not raised in Lindas 1998 OSC, including the argument at issue herewhether she was entitled to more principal than the $25,743 awarded her in the judgment.

Even if Linda had timely filed such a motion to set aside the judgment as it pertained to this asset, we do not know whether the additional sums were unaccounted for at the time the judgment was entered, much less whether they were unaccounted for because of fraud or mistake. We have no way of knowingnow that over 12 years has passed since the judgment was entered, and Charles died in 2004where those additional funds went, whether Charles used them for a community purpose, or whether they were taken into account when the community assets were divided. We do not even know whether those additional sums constituted community property. Other than demonstrating the mere presence of those additional amounts in the account at specific points in time, Linda has offered no evidence in support of her claim.

We find no error.

IV.

The Trial Court Did Not Err by Rejecting Lindas Claims to an Additional Amount in the Merrill Lynch CMA.

The judgment provided Charles and Linda would each receive $1,727 from the Merrill Lynch CMA. Linda admitted she received this amount in 1998. She contends, however, she learned in 1999 that as of the date of separation, there were undisclosed community funds in the sum of $47,325.67 in the Merrill Lynch CMA Account No. 230-[xxx]82 to which she claims a one‑half interest, less the $1,727 she has already received with regard to this account. The court denied Lindas claim to the additional amount from this account without stating a reason.

Again, in the MSA, Charles and Linda stipulated to a specific dollar amount each would receive from the Merrill Lynch CMA. Linda did not raise this claim until the August 2005 OSClong after the possibly applicable limitations periods contained in Family Code section 2122, subdivisions (a) and (e) had run. Charles did not waive objections to the timeliness of this claim with regard to these limitations periods in the 1999 stipulation because Linda had not raised this issue in the 1998 OSC. In any event, the record shows Linda failed to prove that the additional amount constituted community property. It is also not known whether the additional amount, or any part of it, was used for community expenses. Linda has failed to demonstrate error.[8]

V.

The Trial Court Did Not Err by Awarding Charless Estate Credits for Mortgage Payments, Insurance Premiums, and Taxes Paid by Charles for the Residence.

The trial court found that Charless estate was entitled to $181,558 in credits for payments Charles made on the residence during the period of November 1994 through December 1999. Linda does not dispute the trial courts finding with regard to the total amount Charles paid for the residence during this period.

Linda argues the judgment expressly limited Charless right to reimbursement for payments made for the residence to only those payments made up to and including May 31, 1995. The judgment stated, [s]aid residence shall be listed for sale on June 1, 1995, unless the parties mutually agree otherwise. [] Pending the sale of that residence [Charles] shall pay the mortgage payment, taxes and insurance associated with said property through May 31, 1995. At the time of the sale of said property, [Charles] shall be reimbursed for all amounts paid by him for the mortgage payment, taxes and insurance subsequent to the execution of the [MSA] of the parties. The judgment therefore required Charles to make such payments through May 31, 1995, with a right of reimbursement. We disagree the judgment requires cutting off Charless right to reimbursement for payments made for the residence after May 31, 1995, even though the residence was not listed on June 1, 1995 as provided by the judgment.

The trial court did not err by awarding Charless estate credits for these payments.

VI.

Linda Failed to Establish She Is Entitled to Attorney Fees on Appeal Pursuant to Family Code Section 2032.

Citing Family Code section 2032, Linda contends this court should award her reasonable attorney fees incurred in bringing this appeal. The court may make an award of attorneys fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. (Fam. Code,  2032, subd. (a).) Section 2032, subdivision (b) provides: In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the partys case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.

Linda argues that this court should award her attorney fees under Family Code section 2032 because Charles failed to fully disclose all community assets and failed to turn over to Linda her share of community property in a timely manner. Linda did not provide any information on the subject whether the parties have sufficient financial resources to adequately present their respective cases. Linda has failed to make any showing that it would be just and reasonable under the relative circumstances to award her attorney fees under section 2032. Therefore, Lindas request for attorney fees under section 2032 is denied.

DISPOSITION

The postjudgment order is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

[1] We refer to Charles and Linda Lumsdaine, and Charless second wife, Rhonda Lumsdaine, by their first names to avoid confusion and intend no disrespect.

[2] No issue of standing resulting from Charless death has been raised in this appeal.

[3] The stipulation stated that the court reserved jurisdiction over the allocation of the payments made as additional spousal support and/or as a credit to [Charles] pursuant to the terms of the judgment.

[4] Two account numbers appear after the reference to the Merrill Lynch CMA230‑xxx82 and 228-xxx43, but the former number appears to have a line partially drawn through it. The stipulation stated the court reserved jurisdiction over the division of this asset and Lindas claims as to the actual value and any interest owed thereon.

[5] The stipulation again stated that the court reserved jurisdiction over the division of this asset as to whether such payment constituted an equal division.

[6]In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374 (Watts) [trial court has authority to order reimbursement to community for one spouses postseparation exclusive use of a community asset].)

[7] Linda stated the judgments reference to the Keogh account at Glendale Federal was in error and the account was actually at California Federal, IRA No. 723‑xxxxx58.

[8] In her opening brief, Linda also argues that she demonstrated the Merrill Lynch IRA had $221,000 in it, rather than $187,000 Charles had disclosed at [the] time of judgment and she was entitled to half of the undisclosed amount. This contention was not raised by Linda in the August 2005 OSC and was not briefed by the parties in the trial court. Lindas counsel simply asserted this claim during argument at the hearing on the August 2005 OSC. As the trial court did not and should not have ruled on this contention, it is not properly before us and we do not consider it.