Opinion
D069596 D070566
09-13-2017
In re the Marriage of DOROTHY E. and EDWIN S. THOMPSON. DOROTHY E. THOMPSON, Respondent, v. EDWIN S. THOMPSON, Appellant.
Moore, Schulman & Moore, Erik S. Moore, Tanya C. Sanscartier and Nicholas R. Grey for Appellant. Williams Iagmin and Jon R. Williams for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D301033) APPEAL from orders of the Superior Court of San Diego County, Harry L. Powazek, Enrique Camarena, Judges. Affirmed. Moore, Schulman & Moore, Erik S. Moore, Tanya C. Sanscartier and Nicholas R. Grey for Appellant. Williams Iagmin and Jon R. Williams for Respondent.
I.
INTRODUCTION
On March 10, 1997, the trial court entered a stipulated judgment of dissolution of the marriage of appellant Edwin Thompson and respondent Dorothy Thompson, pursuant to a marriage settlement agreement (MSA) filed by the parties. On September 21, 1998, the court entered an order adopting the parties' stipulated Addendum, which modified some aspects of the division of property as laid out in the parties' prior stipulated judgment.
For clarity, we will refer to the parties by their first names.
In 2014, Dorothy filed a request for order to enforce the MSA and the Addendum, as well as a determination of arrears that Dorothy claimed Edwin owed pursuant to these stipulated agreements. After a hearing on the matter, the trial court granted Dorothy's request. The court ordered Edwin to name Dorothy as the sole recipient of the survivor benefit plan of his retirement system, and further ordered the division of Edwin's CalPERS retirement benefit.
Edwin did not appeal from the trial court's order determining that the Addendum, as incorporated into the judgment, was valid and enforceable. Instead, Edwin filed multiple subsequent requests for new orders from the trial court. Although Edwin styled these requests for new orders in a variety of ways, the thrust of each request for order was an attempt to undermine Dorothy's entitlement to a portion of Edwin's CalPERS retirement benefit. The trial court viewed Edwin's requests for orders as attempts to relitigate the issue of the enforceability of the Addendum and repeatedly denied him relief. Edwin appeals from three of the trial court's orders denying the relief requested in his requests for orders.
Edwin contends that the trial court lacked subject matter jurisdiction to enter an order adopting the Addendum and incorporating it into the judgment. He also argues that the trial court failed to provide him with a full and fair hearing on his defenses to the enforcement of the Addendum, and, to the extent the trial court considered his defenses, the trial court erred in rejecting them. Edwin further contends that the trial court erred in denying his request for a statement of decision.
We reject Edwin's contentions. Specifically, we conclude that the trial court had jurisdiction to enter its 1998 order adopting the parties' stipulated Addendum and incorporating it into the judgment, even though this effectuated a modification of the judgment. We further conclude that a number of Edwin's contentions are not cognizable on appeal from the orders from which he appealed because his requests for order were attempts to relitigate an issue that had already been determined to finality in an order of the trial court—i.e., the validity and enforceability of the Addendum, as adopted by court order and incorporated into the judgment—from which Edwin failed to appeal. To the extent that Edwin's contentions are not simply a belated attempt to seek review of the trial court's order enforcing the terms of the Addendum, we conclude that they are without merit. For these reasons, we affirm the orders of the trial court from which Edwin has appealed.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Edwin and Dorothy married in November 1974 and separated in June 1989. Dorothy retained a family law attorney, Marc Shular, to assist her in the dissolution proceedings, while Edwin represented himself.
The parties conducted a number of meetings in Shular's presence, which culminated in a marital settlement agreement (MSA) that Edwin and Dorothy both signed in February 1997. The court entered a judgment of dissolution on March 10, 1997, together with the parties' MSA.
Pursuant to the terms of the MSA, the parties were to share a joint interest in a beach house in Mexico. Edwin took title to the parties' home on Puterbaugh Street, while Dorothy took title to a residence on Keene Street. Edwin also took as his property two vehicles and two boats, while Dorothy took as her property one vehicle. The MSA also established that Edwin would take as his separate property his PERS retirement benefits; however, Edwin was required to retain Dorothy as the beneficiary of his "Survivor Benefit Plan" for the remainder of her life.
The MSA established that the trial court retained jurisdiction to "[s]upervise the payment of any obligation ordered paid or allocated in this Agreement," "[s]upervise the division of assets as agreed in the Agreement," "[s]upervise the execution of any documents required or reasonably necessary to carry out the terms of this Agreement," and "[s]upervise the overall enforcement of this Agreement." (Italics added.) The MSA also contained a clause stating both that it contained the parties' entire agreement, and that the agreement could not be "altered, amended or modified except by an instrument in writing executed by both parties." (Italics added.)
According to Dorothy's deposition testimony, the parties had not agreed upon the terms of an equalization payment at the time the MSA was executed. She testified that Edwin had been present at all of her meetings with Shular, and that the equalization payments had been discussed in his presence. Specifically, Edwin was supposed to have amended his will to include a payment from his estate to Dorothy upon his death, but he never went to see the estate planning attorney and never modified his will. Because of Edwin's failure to act, Dorothy asked Edwin to meet with Shular to devise another method for addressing the inequities that apparently had resulted from the manner in which the parties had divided their existing property.
For example, it appears, based on a letter sent by Shular to Edwin, that Edwin took as his separate property a home in which the parties held $200,000 in equity at the time of separation, while Dorothy took as her separate property a home in which the parties held $80,000 in equity.
On September 14, 1998, approximately 18 months after entry of the judgment, Dorothy and Edwin entered into a "Stipulated Addendum to Marital Settlement Agreement Filed 3/10/97" (Addendum, some capitalization omitted). The Addendum includes three major provisions, which address an equalization payment of $110,000 from Edwin to Dorothy, a division of Edwin's CalPERS retirement benefits, and the transfer of ownership of the house in Mexico to Edwin in exchange for a payment of $12,500, as follows:
"IT IS HEREBY STIPULATED by and between petitioner, DOROTHY E. THOMPSON and respondent, EDWIN S. THOMPSON, as follows:
"The parties entered into a Marital Settlement Agreement that was incorporated into a Judgment of Dissolution which was filed March 10, 1997. The following is the parties' Stipulated Addendum to the Marital Settlement Agreement filed March 10, 1997:
"1. Equalizing Payment
"A. To equalize the division of community property, respondent Husband shall pay petitioner Wife the sum of $110,000.00. This obligation shall be paid by promissory note signed by respondent Husband concurrent with the execution of this Agreement in favor of petitioner Wife in the sum of $110,000.00. The promissory note shall be in the form of Exhibit "A" to this Agreement, and shall be secured as provided in that note. Pursuant to the Straight Note attached hereto, the equalization payment in the sum of $110,000 plus interest at a legal rate of ten percent (10%), commencing August 1, 1998, shall be paid in full upon the first to occur of the following:
"a) Sale of the residence located at 1770 Putterbaugh Street, San Diego, CA 92103;
"b) The death of Edwin S. Thompson.
"B. The San Diego Superior Court shall reserve jurisdiction over any disputes arising out of this equalizing payment.
"2. Public Employee's Retirement System Benefits
"A. The parties own a community asset interest in Husband's retirement benefits with the Public Employees Retirement System (PERS).
"B. Petitioner Wife shall receive one-half (1/2) of the community's interest in the Public Employee's Retirement System Benefits.
"C. The parties shall jointly retain a mutually acceptable employee benefits attorney, to calculate petitioner Wife's interest and to prepare a Domestic Relations Order.
"D. The court shall reserve jurisdiction over this asset.
"3. Beach House Located in Ensenada, Mexico
"Pursuant to the parties' final Judgment filed March 10, 1997, the parties were to each retain one-half (1/2) interest in the beach house located in Ensenada, Mexico. It is the parties' intention to modify that provision in the Marital Settlement Agreement so that Husband is awarded as his sole and separate property the beach house located in Ensenada, Mexico. As consideration for receiving Wife's interest in the beach house located in Ensenada, Mexico, Husband shall pay Wife the sum of $12,500.00 on or before Friday, September 18, 1998 at 5:00 p.m."
The Addendum was signed and dated by Dorothy, Edwin, and Shular. The parties submitted the Addendum to the trial court, and the court adopted the Addendum as an order of the court on September 21, 1998.
Neither party filed anything else in the matter from September 21, 1998 until July 11, 2013. On that date, Dorothy filed a request to join CalPERS in the dissolution proceedings. The joinder request sought to prevent CalPERS from making benefit payments to Edwin "pending the determination and disposition of nonemployee spouse's interest, if any, in employee's benefits under the plan."
After CalPERS appeared in the action, Dorothy filed a request for order in which she sought to enforce the parties' judgment and Addendum on February 27, 2014. Specifically, Dorothy sought a court order requiring Edwin to list her as the beneficiary of Edwin's Survivor Benefit Plan (SBP), granting Dorothy a one-half interest in the CalPERS retirement benefits in accordance with the terms of the Addendum, ordering "compliance with QDRO" (Qualified Domestic Relations Order), and determining arrears for Dorothy's portion of the CalPERS retirement payments that had already been paid to Edwin. In his response to Dorothy's filing, Edwin requested that the court (1) enforce the original judgment without the Addendum, and award the full CalPERS retirement benefit to him, (2) determine that the Addendum is void, and (3) deny Dorothy's request for arrears and compliance with the QRDO. In a supporting document, Edwin argued that the trial court lacked jurisdiction to enter an order modifying the MSA, that the court was misinterpreting the Addendum as effectuating a modification of the MSA despite the lack of language "that would alter, modify or change the MSA's disposition or characterization" of the CalPERS benefits, that Dorothy should be estopped from asserting any right to the CalPERS retirement income because she had waited too long to assert that right, and that, in asserting her right to a share of the retirement benefits despite the lack of any entitlement to the retirement income in the original MSA, Dorothy was in violation of the MSA's covenant of good faith and fair dealing.
Edwin did not raise any challenge to the validity of the other two issues addressed in the Addendum.
The trial court held a hearing on the matter and heard the testimony of both parties on May 13, 2014. Upon the conclusion of the hearing, the trial court ordered Edwin to name Dorothy as the sole beneficiary of the SPB, ordered that the CalPERS retirement be divided pursuant to the Brown time rule, and ordered further proceedings with respect to the issue of arrears and the preparation of the QDRO.
In re Marriage of Brown (1976) 15 Cal.3d 838, 844.
The court minutes from the May 13, 2014 hearing demonstrate that the court made the following findings and orders:
"Survivor Benefits- Respondent is ordered, within 30 days of today's date, to provide through counsel documentation that Petitioner is added as sole recipient of survivor benefit plan of Respondent's PERS System. If it is not done, the Clerk of the Court is appointed as an Elisor.
"Division of Retirement- PERS System is to be divided by the Brown time rule. Petitioner is to provide to Respondent, within 30 days of today, two names to prepare the QDRO. Respondent shall then have two weeks upon receipt to select one of the provided names. Both parties are to cooperate with the preparation of the QDRO.
"• The Court sets a RFO for 8/22/14 at 1:45pm on the following issues:
"° The funds Respondent has received to date from retirement.
"° Status of the QDRO"
Edwin did not seek reconsideration of the trial court's May 13, 2014 order, and did not appeal from that order.
Three months later, on August 12, 2014, Edwin filed a new request for order in which he raised the defenses of laches, equitable estoppel and breach of a confidential/fiduciary relationship with respect to Dorothy's claim pertaining to the CalPERS retirement benefit. The hearing on Edwin's request for order was set for October 15, 2014.
In the interim, on September 9, 2014, the trial court issued a document titled "Findings and Order After Hearing" (some capitalization omitted), in which the court restated in writing the findings and orders it had stated on the record at the conclusion of the May 13, 2014 hearing on Dorothy's request for order. Edwin did not seek reconsideration of the trial court's September 9, 2014 order, and did not appeal from it.
The court's order states in relevant part:
"After consideration of the Marital Settlement Agreement filed March 10, 1997 and the Addendum thereto filed September 21, 1998, hearing oral testimony from both parties, and oral argument from both counsel, the court grants Petitioner's requests for enforcement of the Addendum to the Marital Settlement Agreement and the Judgment and for determination of arrears, and makes the following orders based on those requests:
"1. Within 30 days, Respondent will provide documents through counsel that Petitioner has been added as the sole beneficiary under his Survivor Benefit Plan based on Respondent's CALPERS system. If that is not done and the Respondent does not comply with this order, the court appoints the Clerk of the Superior Court to sign in his stead.
"2. Respondent's CALPERS shall be divided pursuant to the Brown rule. Within 30 days, Petitioner shall provide to Respondent, through counsel, the names of two professionals who can prepare the QDRO. Respondent shall have two weeks to respond. Both parties are ordered to comply with any requests for the production of documents necessary to prepare the QDRO, as well as with any necessary signatures.
"3. The parties shall meet and confer, through counsel, regarding the money paid to Respondent as a result of his retirement from CALPERS from the date of his retirement to the present for purposes of calculating the arrears owed to Petitioner. The parties shall also meet and confer, through counsel, regarding the status of the QDRO.
"4. Respondent's request for a statement of decision is denied.
"5. The court sets a review hearing for August 22, 2014 at 1:45 p.m. in Department F-2. All relevant accountings and pleadings shall be filed and served at least 10 days before the hearing date."
On September 24, Edwin filed a 26-page brief in support of his August 12 request for order. In that brief, Edwin argued, among other things, that the court should "enter a judgment different than announced" (formatting omitted) on the grounds that laches prevented Dorothy from collecting pension payments, that Dorothy should be equitably estopped from collecting pension payments, that the 1998 Addendum was the "product of undue influence" (formatting omitted), and that, under the MSA, the CalPERS retirement benefit was Edwin's alone, and the Addendum did not act to "modify or amend the MSA," or, the "mechanism" by which the court "cause[d] the addendum to modify the MSA still entitled [Dorothy] to zero PERS value." (Formatting omitted.)
Edwin had previously argued in his papers filed in opposition to Dorothy's request for order regarding CalPERS that the court had misconstrued the Addendum in concluding that the Addendum modified the MSA and that the court should not enforce the Addendum on equitable estoppel grounds.
Dorothy opposed Edwin's motion, arguing that the relief Edwin was seeking in his request for order had already been decided by the court in its May 13, 2014 ruling, and that Edwin had not sought reconsideration of that ruling. Dorothy further contended that to the extent that Edwin was raising new defenses to the enforcement of the Addendum, he should not be permitted to raise them at that point in time, i.e., after the court's May 13, 2014 ruling on the issue of her entitlement to a portion of the CalPERS retirement benefits.
The trial court ultimately held a hearing on Edwin's August 12, 2014 request for order on March 3, 2015. At the conclusion of that hearing, the trial court tentatively determined that Edwin's motion was "asking to reopen the case," and that since Edwin had not filed a "Motion for Reconsideration under 1008 [or] a motion for new trial or new hearing," the court did not "have statutory authority" to reconsider the issues. In so concluding, the court noted that at the prior hearing there had been extensive discussion about the fact that Dorothy had waited 16 years before attempting to enforce the terms of the judgment (including the incorporated Addendum). However, the court took the matter under submission and stated that the court would continue to consider the matter further, and would notify the parties of its ruling by mail.
The court entered "Findings and Order After Hearing" (some capitalization omitted), related to the March 3, 2015 hearing, on October 13, 2015. In that document, the court reiterated its tentative ruling, stating, "The Court finds that raising a subsequent Request for Order is asking to reopen the case. The Court finds that this was not a Motion for Reconsideration under CCP §1008 and not a motion for a new trial or hearing."
On August 4, 2015, prior to receiving the trial court's October 13, 2015 final order with respect to Edwin's August 12, 2014, 2014 request for order, Edwin filed yet another request for order. In this request for order, Edwin described what he was seeking as a "Motion to Vacate Order Entered May 13, 2014." In briefing submitted in support of this request for order, Edwin argued that the Addendum was "fundamentally void" (capitalization omitted), and that the trial court therefore had jurisdiction to correct its earlier order of May 13, 2014, enforcing the Addendum as incorporated into the judgment in this case. Dorothy opposed Edwin's August 4, 2015 request for order, asserting again that these issues had been previously litigated and decided by the trial court, and that the court had ruled against Edwin.
Dorothy also raised additional issues in her response. For example, Dorothy informed the court that Edwin still had not named her as the beneficiary of his Survivor Benefit Plan, even though that requirement was set forth in the MSA and remained unchanged by the Addendum. Dorothy also noted that Edwin and his counsel had not assisted in preparation of the QRDO as had been ordered by the court.
On November 6, 2015, the trial court denied Edwin's August 4, 2015 request for order, concluding that the court had already addressed the issues that Edwin raised. The trial court issued "Findings and Order after Hearing" (some capitalization omitted) related to this hearing on January 29, 2016, in which the court reiterated its ruling.
Specifically, the court ruled, "If Judge Powazek had felt this addendum went against public policy and Superior Court's ability to make final [judgment] that would have been his ruling. It is the Court's position Judge Powazek addressed those [issues] [i]n both hearings."
Approximately two months after the November 6, 2015 hearing, on December 28, 2015, Edwin filed another request for order in the trial court. This time, Edwin sought the inclusion of certain language in the QDRO that would clarify that the trial court retained jurisdiction to "modify" the QDRO in a manner consistent with Edwin's contention that Dorothy was not entitled to any CalPERS retirement benefits. Edwin and Dorothy had been in a dispute over the inclusion of such language.
Specifically, Edwin requested that the trial court "enroll a DRO that ensures that this Court will continue to retain jurisdiction to modify all aspects of that DRO including the distributions that are received by Petitioner," because he "anticipate[s] filing an appeal on the earlier rulings as recommended by the Court."
The trial court rejected Edwin's request for an order requiring the "reservation of jurisdiction" language that Edwin wanted placed in the QDRO. The trial court determined that such language was unnecessary. The court ordered that the QDRO was to be prepared within 14 days.
On April 14, 2016, after the QDRO was finalized and executed by Edwin and Dorothy, it was adopted by the trial court.
In the meantime, Edwin filed notices of appeal from various trial court orders, including the October 13, 2015 Findings and Order After Hearing (related to the court's March 3, 2015 hearing), the January 29, 2016 Findings and Order After Hearing (related to the court's November 6, 2015 hearing), and the QRDO, which was entered on April 14, 2016.
Edwin's notices of appeal resulted in two separate appeals pending before this court. Pursuant to the parties' stipulation, this court consolidated the appeals in case Nos. D070566 and D069596 on July 22, 2016.
III.
DISCUSSION
A. The trial court had subject matter jurisdiction to adopt the Addendum and to incorporate it into the final judgment in this case; the order adopting the Addendum is, therefore, final
Edwin sets forth a number of contentions on appeal, arguing that "[t]he trial court erred when issuing the post-judgment orders filed on October 13, 2015, January 29, 2016, and April 14, 2016." Most of Edwin's arguments are, at their core, an attempt to undermine the trial court's ruling of May 13, 2014, as expressed in the court's minute order (which was subsequently reduced to a more formal written order in September 2014), by undermining the court's authority to adopt the Addendum and merge it into the judgment in 1998. In 2014, when Dorothy sought to enforce the judgment (including the Addendum), the court determined that the Addendum, as incorporated into the judgment, was enforceable and entitled Dorothy to a portion of the CalPERS retirement benefit, including arrears for past payments made to Edwin, as well as future payments. Edwin did not appeal from the May 13, 2014 ruling, or from the written order of September 9, 2014, repeating that ruling.
The major argument headings presented in Edwin's opening brief are: "The trial court lacked subject matter jurisdiction to enforce the Addendum re-adjudicating the judgment and the parties' final property division"; "The trial court erred by denying Edwin's motion to vacate and set-aside the Addendum and the May 13, 2014, order absent having subject matter jurisdiction"; "The trial court erred by denying Edwin's motion to vacate and set-aside the May 13, 2014, order and the Addendum because enforcement was barred by res judicata"; "The trial court erred by refusing to issue a statement of decision"; "The trial court erred in entering the DRO because the court exceeded its power"; "The trial court erred by denying Edwin's motion to enter a different judgment than announced because the court lacked subject matter jurisdiction"; "The trial court erred when interpreting the judgment and the Addendum together because the MSA is an unambiguous, standalone, full and complete contract"; "The trial court denied Edwin's right to procedural due process by failing to afford him a full and fair hearing on the merits for his defense claims to the enforcement of the Addendum and arrears"; "If the court determines Edwin was afforded a full and fair hearing on his defenses, then the trial court abused its discretion by denying Edwin's request for laches"; "If the court determines Edwin was afforded a full and fair hearing on his defenses, then the trial court erred by denying Edwin's defense of equitable estoppel"; "If the appellate court determines Edwin was afforded a full and fair hearing on his defenses, then the trial court erred in denying Edwin's defense that the 1998 addendum was the product of undue influence and Dorothy breached her fiduciary duty and/or confidential relationship." (Formatting omitted.)
Not surprisingly, Dorothy contests the timeliness of Edwin's appeals, arguing that this court is without jurisdiction to consider any challenges to the trial court's 1998 order adopting the Addendum and incorporating its terms into the judgment, and is also without jurisdiction to consider any challenges to the trial court's May 13, 2014 determination that Dorothy is entitled to enforce the terms of the Addendum, as merged into the judgment.
It is axiomatic that an appellate court lacks jurisdiction to consider an untimely appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) An appellate court has no jurisdiction to review "any decision or order from which an appeal might have been taken" but was not. (Code Civ. Proc., § 906.) "[A]n appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez); accord, In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138.)
Edwin's notices of appeal from postjudgment orders of the court that were filed long after the trial court adopted the Addendum by order of the court and that decided the issue of Dorothy's entitlement to a portion of the CalPERS retirement benefit appear to be untimely with respect to the question of the correctness of the trial court's ruling that Dorothy is entitled to a portion of the CalPERS retirement benefit. However, one of Edwin's main contentions on appeal is that the trial court lacked jurisdiction to modify the 1997 judgment when it adopted the Addendum in 1998 and incorporated that document into the judgment, thereby modifying the judgment. He asserts that, as a result, the 1998 ruling is void and that he may attack the court's act in adopting and merging the Addendum into the judgment at any time.
We further address questions regarding the timeliness of Edwin's various challenges, including the question whether the final order with respect to the May 13, 2014 hearing was appealable, later in this opinion.
By so arguing, Edwin apparently concedes that the trial court's 1998 postjudgment order adopting the Addendum and incorporating it into the judgment was a final, appealable order that would otherwise not be subject to attack on appeal from a subsequent order. (See In re Marriage of Acosta (1977) 67 Cal.App.3d 899, 901, fn. 1 [noting that an order modifying a judgment that raises issues different from the issues determined in the judgment is appealable].)
Specifically, Edwin contends that he is challenging the trial court's "entry and enforcement of the parties' Stipulation" for "lack of subject matter jurisdiction," and that therefore he is entitled to raise this challenge at any time. According to Edwin, the trial court has no jurisdiction to modify a judgment as to the final division of property rights, regardless of whether the parties may agree to such modification.
We address Edwin's jurisdictional argument first; if Edwin is correct that he may challenge, at any time, the validity of the trial court's order adopting the Addendum and incorporating it into the judgment, which the court did by way of an order rendered in 1998, because he is raising a question as to the trial court's fundamental jurisdiction to enter such an order, then there would be no time bar to all of his arguments that rely on the premise that the trial court erred in enforcing the terms of the Addendum at a later point in time.
Specifically, Edwin argues that there are only a few exceptions that would permit a trial court to revisit the issue of a property division determined in a final judgment in a marital dissolution proceeding—i.e., where the judgment specifically reserves jurisdiction to further alter the property division, where the property that is the subject of the court's later action was an omitted asset, or where the determination of the property division was the result of extrinsic fraud or mistake. Edwin contends that none of these situations exists in this case, and therefore, that the trial court acted without jurisdiction when it entered the order incorporating the Addendum into the final property division as set forth in the judgment.
"Generally, once a marital dissolution judgment has become final, the court loses jurisdiction to modify or alter it. [Citations.] Under the doctrine of res judicata, ' "[i]f a property settlement is incorporated in the divorce decree, the settlement is merged with the decree and becomes the final judicial determination of the property rights of the parties." ' [Citation.] In short, marital property rights and obligations adjudicated by a final judgment cannot be upset by subsequent efforts to 'modify' the judgment." (In re Marriage of Thorne & Racina (2012) 203 Cal.App.4th 492, 499 (Thorne & Racina).) Therefore, often, " '[t]he sole remedy with respect to a judgment adjudicating a property division is a timely set-aside motion under [Code of Civil Procedure section] 473[, subdivision] (b) . . . , a timely appeal or, after the time for [Code of Civil Procedure section] 473[, subdivision] (b) relief expires, a [Family Code section] 2120 et seq. set-aside proceeding on statutorily-prescribed grounds and within statutorily-prescribed time limits . . . .' " (Ibid.)
However, "[t]here are three exceptions to the general rule. [¶] First, a judgment may contain an express reservation of jurisdiction authorizing the court to subsequently modify it. [Citations.] . . . [¶] Second, the trial court may divide a community property asset not mentioned in the judgment [i.e., omitted assets]. . . . [Citations.] . . . [¶] And third, the trial court may give equitable relief from an otherwise valid judgment for extrinsic fraud or mistake." (Thorne & Racina, supra, 203 Cal.App.4th at pp. 500-501.)
With respect to omitted assets, pursuant to Family Code section 2556, "the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding." However, even before codification of Family Code section 2556, courts had permitted a former spouse to "bring a separate partition action to divide assets omitted from a dissolution judgment." (Berry v. Berry (1989) 216 Cal.App.3d 1155, 1159.)
Assuming, without deciding, that Edwin is correct that in the absence of some other authority that would permit the modification of a final property division, a trial court lacks fundamental jurisdiction to modify a final property division, such that a court's act in modifying a final property division may be challenged at any time, even for the first time on appeal, we nevertheless conclude that the trial court did not lack jurisdiction to adopt the parties' Addendum and incorporate it into the judgment because the parties expressly retained, in the judgment, their ability to modify the agreement at a later point in time, and the court retained jurisdiction to supervise the enforcement of the MSA.
Because we need not do so, we do not decide whether Edwin is correct that a trial court lacks fundamental jurisdiction to modify a final judgment of a marital dissolution property division, such that its act in doing so is void ab initio and may be challenged at any time, or, rather, whether a court acts in excess of its jurisdiction if it modifies an otherwise final property division, such that any challenge to such modification would have to be made within the normal time constraints applicable to appeals.
"Although the term 'jurisdiction' is sometimes used as if it had a single meaning, we have long recognized two different ways in which a court may lack jurisdiction. [Citation.] A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case. [Citation.] If a court lacks such ' "fundamental" ' jurisdiction, its ruling is void. [Citation.] A claim based on a lack of fundamental jurisdiction may be raised for the first time on appeal." (People v. Ford (2015) 61 Cal.4th 282, 286 (Ford).)
"Even when a court has fundamental jurisdiction, however, the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations. [Citations.] In American Contractors, supra, 33 Cal.4th 653, 660-662, for example, we explained that a court with fundamental jurisdiction over the parties nonetheless lacked the power to enter a judgment forfeiting a bail bond prior to the end of the period allowed for the surety to make an appearance. When a trial court has fundamental jurisdiction but fails to act in the manner prescribed, it is said to have acted 'in excess of its jurisdiction.' [Citation.] Because an ordinary act in excess of jurisdiction does not negate a court's fundamental jurisdiction to hear the matter altogether (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 285, p. 891), such a ruling is treated as valid until set aside. [Citation.] A party may be precluded from seeking to set aside such a ruling because of waiver, estoppel, or the passage of time." (Ford, supra, 61 Cal.4th at pp. 286-287.)
Although Edwin asserts that the issue whether a trial court may modify the division of property that has been reduced to a final judgment in a marital dissolution action is one that goes to a court's subject matter jurisdiction, the authorities on which Edwin relies speak only to a court's "jurisdiction," without specifying which of the two types of "jurisdiction" is being referenced. (See, e.g., In re Marriage of McDonough (1986) 183 Cal.App.3d 45, 53 ["after a trial court has divided the property during a dissolution proceeding and the judgment has become final 'the court loses jurisdiction to modify or alter the division made' "]; Thorne & Racina, supra, 203 Cal.App.4th at p. 499 [generally a "court loses jurisdiction to modify or alter" a final judgment in a marital dissolution proceeding].)
Specifically, the MSA, which the parties executed on February 24, 1997, contained the following relevant language in paragraph 25.B:
"This Agreement and any other instrument(s) executed at the same time as this Agreement contain the final, complete and exclusive agreement of the parties concerning the subject matters covered, and the rights and duties set forth in this Agreement may not be waived, altered, amended or modified except by an instrument in writing executed by both parties."
This language clearly contemplates that the parties retained the ability to "waive[ ], alter[ ], amend[ ] or modif[y]" the rights and duties that they agreed to in the MSA, but only if they did so pursuant to "an instrument in writing executed by both parties." The MSA also contains a reservation of jurisdiction for the court to "[s]upervise the overall enforcement of this Agreement." The MSA, which was merged into the judgment, thus expressly reserved the trial court's jurisdiction to enforce all of the terms of the judgment, including the term that grants the parties the ability to modify their rights and obligations pursuant to a written, executed agreement.
Edwin argues that the MSA "merged" into a judgment and that this fact operated to "end[ ] the parties' right to modify the written agreement." According to Edwin, "[o]nce the judgment was entered, the provision for contractual modification was terminated." He supports this contention by arguing that the "parties intended the property division to be final and did not intend nor explicitly reserve jurisdiction to re-adjudicate the property division," citing to various language in the MSA that discusses that the purpose of the MSA was "to settle the parties' rights and obligations" and language to the effect that the "assets and interests . . . received by each party pursuant to th[e] division [expressed in the MSA], shall from the effective date of this Agreement become and remain the recipient's sole and separate property." He further points out that the section entitled "Reservation of Jurisdiction" does "not contain language to modify the Judgment," and that "[i]f the parties intended to reserve jurisdiction they would have explicitly retained jurisdiction."
Edwin's reading of the pertinent language fails to acknowledge what the parties did agree to. Although we agree with Edwin that the language of the MSA establishes that the parties did not intend that the trial court reserve jurisdiction to modify the judgment on its own or at the behest of only one of the parties, the language of the MSA establishes that the parties did intend that they could amend or modify the judgment by their written mutual assent to such a modification, and that the trial court could enforce such modification in this family court proceeding. These provisions establish that the trial court reserved jurisdiction to enforce the parties' own subsequent written, executed agreement amending or modifying the terms of the property division.
We also reject Edwin's reliance on case law to suggest that somehow the "merging" of the MSA into a judgment operated to foreclose the parties' ability to act, in accordance with the terms of the MSA, to modify the judgment by a written, executed agreement. For example, citing Carlson v. Carlson (1963) 221 Cal.App.2d 47, 50 (Carlson), Edwin suggests that "[a] final judgment adjudicating the parties' property rights is not subject to modification ' "regardless of whether or not it is based upon the agreement of the parties." ' " Carlson, however, is distinguishable from this case.
In Carlson, the parties apparently orally stipulated in court to a division of their marital property, including equal interests in an apartment building, to be held as their separate property. This division was entered as an "Interlocutory Judgment of Divorce." (Carlson, supra, 221 Cal.App.2d at p. 48, fn. 1, some capitalization omitted.) A judgment was thereafter entered in March 1960. (Ibid.) The following June, the parties entered into a written agreement in which they attempted to amend and modify the prior division of their community property to give to the former wife the entire interest in the apartment building that had previously been divided equally. (Ibid.) Although the parties' stipulation contained a signature line for a court to adopt the stipulation as an order of the court, no court signature appeared on the document. (Id., at pp. 48, fn. 1, 49.) The former wife filed a motion to modify the judgment, to correspond with the parties' stipulation. The trial court denied the motion on jurisdictional grounds, concluding that the court was without jurisdiction to modify the judgment. (Id. at p. 49.)
On review, the appellate court in Carlson stated the following:
"The general rule is that a property division contained in a divorce decree is modifiable only through application of the rules governing judgments generally. Leupe v. Leupe, 21 Cal.2d 145, 148: ' . . . [T]he decisions establish that the trial court is without jurisdiction to modify an unqualified disposition of property rights made in an interlocutory decree of divorce except in accordance with the methods applicable to the judgments generally. . . .' See also, Bowman v. Bowman, 29 Cal.2d 808, 814; Dupont v. Dupont, 4 Cal.2d 227, 228; Harrold v. Harrold, 127 Cal.App.2d 582, 583-584. Moreover, ' "[a] divorce decree adjusting the property rights of the parties is not subject to modification regardless of whether or not it is based upon the agreement of the parties." ' (Codorniz v. Codorniz, 34 Cal.2d 811, 814.) It has been declared repeatedly in cases involving integrated property settlement agreements that a change in the court's property dispositions cannot be made without the consent of the parties. Among others which so declare are the cases of Dexter v. Dexter, 42 Cal.2d 36, 40; Plumer v. Plumer, 48 Cal.2d 820, 824; Messenger v. Messenger, 46 Cal.2d 619, 628. Implicit in these decisions is the qualification announced in Flynn v. Flynn, 42 Cal.2d 55, to the effect that property settlement agreements may specify conditions under which, and terms upon which, the agreement and the decree based upon it may be modified, and that these provisions when incorporated in the decree—when thus merged in it (Hough v. Hough, 26 Cal.2d 605, 609 )—may be followed by the court in modifying the decree." (Carlson, supra, 221 Cal.App.2d at pp. 50-51, italics added.)
Edwin focuses on the statement that a " ' "divorce decree adjusting the property rights of the parties is not subject to modification regardless of whether or not it is based upon the agreement of the parties." ' " (Carlson, supra, 221 Cal.App.2d at p. 50.) This language, however, refers to a post hoc attempt by the parties to agree to permit a court to modify a judgment. Edwin fails to acknowledge that portion of the Carlson opinion, which we have italicized in the quotation above, in which the Carlson court identifies a scenario in which the subsequent modification of a judgment may occur—i.e., where the parties to a property settlement agreement that has been merged into a final judgment have, by the terms of that agreement, incorporated into the judgment itself the possibility for modification of that judgment in the future. That is the very scenario that we have here. In this case, the parties allowed for the modification of their final property division as expressed in the MSA and merged into a judgment under certain circumstances, and the court reserved jurisdiction to enforce the terms of the parties' agreement, including the term that they could modify the other terms pursuant to a written, executed agreement. In Carlson, there was no evidence that the parties contemplated a postjudgment modification of the property division in their original agreement that had been merged into the judgment. (Carlson, supra, at pp. 54-55 ["[T]he trial court had no jurisdiction to entertain the motion to modify based upon it because the court's jurisdiction in the matter of disposing of the property of the spouses had not been reserved but had been exhausted in the making of its judgments and jurisdiction thus exhausted could not be revived by an agreement attempting to confer such jurisdiction after same had expired"].) Thus, the point that the Carlson court was trying to make was not that a final judgment that adjudicated property rights may never be modified, even upon the agreement of the parties, as Edwin suggests, but rather, that the parties must agree to the possibility of modification prior to the entry of judgment, and the conditions permitting modification must be incorporated into the judgment. For this reason, Carlson does not support Edwin's position.
Similarly, Edwin attempts to suggest that somehow the merger of the MSA into a judgment "fundamentally changed" the parties' contract and "significantly diminished" the parties' "ability to modify it." For this proposition, Edwin relies on Ettlinger v. Ettlinger (1935) 3 Cal.2d 172, 178 (Ettlinger), and provides the following quotation from that case:
"That the parties may contract with regard to their properties and their respective interests therein is now settled. Though not binding in the first instance on the court in which the divorce action is pending, such contract may be approved and confirmed by the court, and if appropriately referred to and adopted in its decree, as here, such decree, as to the matters covered by the agreement, becomes immune from subsequent modification."
Again, however, Edwin ignores the fact that the agreement between the parties in this case that was approved and confirmed by the court, and merged into the judgment, includes an express provision permitting subsequent modification, and the court retained jurisdiction to enforce the terms of the agreement. There is no mention in Ettlinger that the final agreement between the parties in in that case included a provision allowing the parties to later modify their property division. (See Ettlinger, supra, 3 Cal.2d at pp. 175-178 ["We are satisfied from an examination of the entire agreement, having particular reference to the above-quoted provisions thereof, that it was the intention of the parties to definitely, fully and permanently adjust and settle all of their property rights" (italics added)].) Edwin offers no authority that would support the idea that the merger of a parties' agreement into a judgment has the effect of modifying that agreement to eliminate an express provision of the agreement that allows for subsequent modification by agreement of the parties, which is what the merger of the MSA into the judgment in this case would have to do in order for Edwin's position to be accepted.
We therefore reject Edwin's contention that he may raise a challenge to the trial court's order adopting the parties' Addendum as an order of the trial court at any time because the trial court lacked jurisdiction to enter such an order. The trial court retained jurisdiction to enforce the terms of the MSA, as merged into the judgment. As a result, if Edwin wanted to challenge the court's adoption of that Addendum, he was required to do so within the time limits for challenging such an order. The time to challenge the trial court's order adopting the Addendum has long since passed, and the court's order adopting the Addendum and thereby modifying the judgment as outlined in the Addendum is final and may not now be challenged. "In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (Ramirez, supra, 159 Cal.App.4th at p. 1421.) B. To the extent that Edwin's challenges to the court's 2015 and 2016 orders are an attempt to undermine the effect of the court's 1998 order adopting and incorporating the Addendum into the judgment, those challenges are untimely and are not cognizable on appeal
As noted, Edwin filed notices of appeal from three of the trial court's most recent orders, including the October 13, 2015 Findings and Order After Hearing (related to the court's March 3, 2015 hearing), the January 29, 2016 Findings and Order After Hearing (related to the court's November 6, 2015 hearing), and the QRDO, which was entered on April 14, 2016. However, many of the arguments that Edwin raises on appeal seeking reversal of these recent orders are based solely on his contention that the trial court did not have the authority to adopt the Addendum in 1998. For example, the following arguments, as identified in Edwin's opening brief, all stem from Edwin's assertion that the court lacked jurisdiction to adopt the Addendum:
(a) "The trial court lacked subject matter jurisdiction to enforce the Addendum re-adjudicating the judgment and the parties' final property division";
(b) "The trial court erred by denying Edwin's motion to vacate and set-aside the Addendum and the May 13, 2014, order absent having subject matter jurisdiction";
(c) "The trial court erred by denying Edwin's motion to vacate and set-aside the May 13, 2014, order and the Addendum because enforcement was barred by res judicata" [in which Edwin argues that "[a]fter the MSA was merged into the judgment, the parties' contractual rights including the right to modify the agreement was terminated and barred by res judicata" (formatting omitted)];
(d) "The trial court erred in entering the DRO because the court exceeded its power" [in which Edwin again argues that the trial court lacked subject matter jurisdiction to enforce the division of the retirement account because it lacked jurisdiction to adopt the Addendum];
(e) "The trial court erred by denying Edwin's motion to enter a different judgment than announced because the court lacked subject matter jurisdiction";
(f) "The trial court erred when interpreting the judgment and the Addendum together because the MSA is an unambiguous, standalone, full and complete contract." (Formatting omitted.)
Edwin contends that the trial court erred in entering the QDRO because "after the Judgment was entered there was no longer any community property interest to be divided." This is the same argument that Edwin repeats throughout his briefing—i.e., that the trial court acted in excess of its jurisdiction in adopting the Addendum and in enforcing the CalPERS term of that Addendum as of May 13, 2014.
Again, to the extent that Edwin seeks to relitigate the validity of the trial court's order adopting the Addendum and incorporating it into the judgment through the various arguments that he is raising at this point in time, such challenges are untimely and are not cognizable on appeal from the trial court's 2015 and 2016 orders. The 1998 order adopting the Addendum was appealable, Edwin did not appeal from it, and it became final when the time to appeal from that order elapsed; Edwin cannot now attempt to challenge the substance of the court's 1998 order. (See In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638 [" 'If an order is appealable, . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata' "]; accord, In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318.) C. To the extent that the claims that Edwin raises are attempts to undermine the trial court's May 13, 2014 ruling, which became final as of September 9, 2014, by virtue of his appeals from separate, subsequent orders of the trial court in 2015 and 2016, such arguments are also not cognizable
Edwin raises a number of arguments that are, fundamentally, challenges to the validity of the trial court's decision with respect to Dorothy's original request for order, on which the court ruled on May 13, 2014, and issued a final written order as of September 9, 2014, although he raises them with respect to the trial court's denials of Edwin's various requests for order. As the trial court pointed out, Edwin's repeated filings and requests for orders in the trial court were repetitive attempts to relitigate the validity and enforceability of the 1998 Addendum, which is what was at issue at the May 13, 2014 hearing regarding Dorothy's request for order to enforce the judgment with respect to the CalPERS retirement benefits and SBP beneficiary status. In other words, all of Edwin's requests for order that were filed after the court heard Dorothy's request for order to enforce the judgment, including the incorporated Addendum, were attempts to challenge the substance of the court's September 9, 2014 final order addressing Dorothy's February 27, 2014 request for order.
Although the parties do not address this issue, it appears that the trial court's ruling with respect to the May 13, 2014 hearing did not become a final order of the court until the court issued its written "Findings and Order After Hearing" (some capitalization omitted) on September 9, 2014. An oral or tentative ruling is not necessarily "the unequivocal decision of the court," since "[a] court may change its ruling until such time as the ruling is reduced to writing and becomes the [final] order of the court." (In re Marcus (2006) 138 Cal.App.4th 1009, 1016.) Although an oral ruling may become a final order when entered into the minutes of the court, "when the trial court's minute order expressly indicates that a written order will be filed, only the written order is the effective order." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.) Here, the court entered its ruling into the minutes of the court. However, the minute order expressly contemplates a further written order by stating, "Petitioner is ordered to prepare the OAH [order after hearing] and send to opposing counsel for signature."
Thus, the September 9, 2014 "Findings and Order After Hearing" (the September 9, 2014 order) in which the trial court reaffirmed the rulings that the court announced at the conclusion of the May 13, 2014 hearing appears to be the final order of the court with respect to the May 13, 2014 hearing. We will therefore refer to the court's September 9, 2014 order as the final order with respect to Dorothy's request to enforce the judgment and the incorporated Addendum.
Edwin sets forth the following argument headings that touch on his challenge to the enforceability of the Addendum, as determined by the trial court at the May 13, 2014 hearing and set forth in the September 9, 2014 order: "The trial court denied Edwin's right to procedural due process by failing to afford him a full and fair hearing on the merits for his defense claims to the enforcement of the addendum and arrears"; "If the court determine[s] Edwin was afforded a full and fair hearing on his defenses, then the trial court abused its discretion by denying Edwin's request for laches"; "If the court determines Edwin was afforded a full and fair hearing on his defenses, then the trial court erred by denying Edwin's defense of equitable estoppel"; "If the appellate court determines Edwin was afforded a full and fair hearing on his defenses, then the trial court erred in denying Edwin's defense that the 1998 addendum was the product of undue influence and Dorothy breached her fiduciary duty and/or confidential relationship." (Formatting omitted.)
Edwin did not appeal from either the May 13, 2014 minute order of the trial court, nor from the September 9, 2014 order, which constituted the final order of the court with respect to the May 13, 2014 hearing.
Dorothy contends that the September 9, 2014 order was a "separately appealable" order, and further argues that Edwin "cannot dispute the finality and appealability of the May 13, 2014 Findings and Order After Hearing, as he has appealed from subsequent Findings and Order After Hearing on that same basis." According to Dorothy, the trial court answered "the critical question of the validity and enforceability of the Stipulated Addendum and Order" at the May 13, 2014 hearing, and Edwin "did nothing to timely preserve his right to challenge that ruling on appeal, and likely subsequently realized that he had to create other rulings on the same issues already adjudicated against him to manufacture appellate jurisdiction he had already lost." (Italics omitted.)
Edwin argues that the September 9, 2014 order was not a final order, and was not appealable. According to Edwin, the September 9, 2014 order "was merely preliminary in that it stated the interest in CalPERS would later be divided by the 'Brown rule' and Edwin appropriately waited to file an appeal until the trial court issued the DRO specifying the amount of money to be paid to Dorothy."
Under Code of Civil Procedure section 904.1, subdivision (a)(2), a party may appeal "[f]rom an order made after a [final] judgment." However, not every order following a final judgment is necessarily appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin).) Rather, in order for a postjudgment order to be appealable, the issues raised in the appeal from the postjudgment order must be different from those arising in an appeal from the judgment, and the postjudgment order must either affect the final judgment in some manner or bear some relation to it either by enforcing it or staying its execution. (Id. at pp. 651-652.)
However, a postjudgment order that lacks finality, in that it is merely preparatory to later judicial proceedings, is not considered to be appealable. In concluding that an order denying an award of attorney's fees requested pursuant to Code of Civil Procedure section 2033, subdivision (o) was appealable, the Lakin court held: "[T]he order here in issue . . . is a postjudgment order that affects the judgment or relates to its enforcement because it determines the rights and liabilities of the parties arising from the judgment, is not preliminary to later proceedings, and will not become subject to appeal after some future judgment." (Lakin, supra, 6 Cal.4th at p. 656, italics added.)
The court's September 9, 2014 order involved five "orders," in that it (1) ordered Edwin to add Dorothy as the beneficiary of his Survivor Benefit Plan within 30 days; (2) ordered a division of the CalPERS retirement benefit and required Dorothy and Edwin to agree to someone who could prepare the QDRO and to comply as necessary to prepare the document; (3) ordered the parties to meet and confer regarding the money that Edwin had already received from CalPERS "for purposes of calculating the arrears owed to" Dorothy, as well as to meet and confer regarding the "status of the QDRO"; (4) denied Edwin's request for a statement of decision; and (5) set a "review hearing" as to all of the court's orders.
When considered as a whole, the court's September 9, 2014 order acts to enforce the judgment and orders the parties to perform certain acts in compliance with the judgment. A review of these orders demonstrates that the orders contemplate further proceedings only insofar as they require the entry of a QDRO and, once the calculation of Dorothy's portion of the retirement was determined pursuant to the QDRO, a calculation of arrears. The other items do not contemplate further court proceedings to decide legal issues or to further determine the rights and liabilities of the parties. In other words, the court's order does not contemplate some "future judgment" from which a final appeal may be taken (see Lakin, supra, 6 Cal.4th at p. 656).
Edwin focuses on the fact that the September 9, 2014 order did not "direct payment" of a certain sum to Dorothy and did not "state the amount of CalPERS or arrears that Dorothy was to receive," to argue that it was not a final order. In doing so, Edwin relies on authorities involving the finality of judgments, which he cites to support his contention that the fact that a distinct issue is determined in an order does not make it appealable. (See Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 (Sjoberg); Lauderdale v. U & I Equip. Co. (1969) 271 Cal.App.2d 140, 142-143.) It is clear, however, that considerations regarding the finality and appealability of judgments (and prejudgment orders) are distinct from considerations regarding the finality and appealability of postjudgment orders. Further, even though the amount of arrears was not calculated and the QDRO setting forth the precise amount that Dorothy was to receive or the calculation by which such amount was to be determined had not yet been prepared, the court's September 9, 2014 orders directed both parties to act, which is sufficient to constitute an appealable order, even under the authorities on which Edwin relies: " 'It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him.' " (McCord. v. Plotnick (1951) 104 Cal.App.2d 495, 496, italics added, quoting Sjoberg, supra, 33 Cal.2d at p. 119.)
We therefore conclude that the September 9, 2014 order is "sufficiently final" as to the enforcement of the Addendum, as incorporated into the judgment, to have been appealable. (Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685 [an order taxing costs, issued after reversal of a judgment and thus while a new trial was pending, was not "sufficiently final to be appealable"].) The court's determination regarding the enforceability of the Addendum became final, and thus, no longer subject to challenge, when the time from which to appeal the court's order making that determination elapsed without an appeal having been filed. Edwin's failure to file an appeal from the September 9, 2014 order renders untimely all of his arguments that are merely attempts to undermine the court's determination, set forth in the September 9, 2014 order, that Dorothy is entitled to a portion of the CalPERS retirement benefit pursuant to the Addendum. D. Even on their merits, Edwin's contentions challenging the court's ruling that the Addendum may be enforced and entitles Dorothy to her half of the community's CalPERS retirement benefits must be rejected
As mentioned in our previous discussion, Edwin raises a number of arguments that attempt to undermine the trial court's ruling enforcing the Addendum, as incorporated into the judgment, as set forth in the September 9, 2014 order. These arguments include Edwin's contentions that the court denied him procedural due process by failing to afford him a full and fair hearing on the merits on his defenses to enforcement of the Addendum and that even if the trial court did afford him a full and fair hearing on those defenses, the court abused its discretion in rejecting the defenses of laches, equitable estoppel, undue influence, and or/ breach of fiduciary duty/confidential relationship. Although we are not convinced that Edwin timely appealed these issues, we nevertheless also conclude that his contentions are without merit.
1. Contrary to Edwin's contention on appeal, the trial court did not limit Edwin's arguments or presentation of evidence in regard to Edwin's defenses to enforcement of the Addendum
Edwin contends that he was denied his procedural due process right to a full and fair hearing on his defenses to enforcement of the Addendum.
"The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner." (In re Vitamin Cases (2003) 107 Cal.App.4th 820, 829.) Procedural due process "does not guarantee any particular procedure but is rather an 'elusive concept,' requiring only ' "notice reasonably calculated to apprise interested parties of the pendency of the action affecting their property interest and an opportunity to present their objections." ' " (Ibid.)
Notably, in a section entitled "The trial court denied Edwin's right to procedural due process by failing to afford him a full and fair hearing on the merits for his defense claims to the enforcement of the addendum and arrears" (formatting omitted), Edwin does not identify which defenses he is now claiming he was denied an opportunity to present. Rather, he mentions four possible defenses that he claims he raised either "expressly or implicitly" in his responsive pleadings to Dorothy's February 27, 2014 request to enforce the Addendum and judgment: "[e]stoppel; [b]reach of the covenants of good faith and fair dealing; [u]ndue influence; and [l]aches." Although it is not at all clear from the briefing, in which Edwin repeatedly refers to the defenses about which he is raising this challenge simply as "his claims for defenses," "the defenses," or "Edwin's defenses," we assume that these are the defenses that Edwin is now claiming he was denied an opportunity to present to the trial court.
Also not clear from Edwin's briefing is when Edwin is contending the trial court denied him the right to a full and fair hearing on his defenses. Specifically, it is not clear as to which hearing Edwin is asserting he was denied his procedural due process right to present his defenses. It appears that Edwin is asserting that the court denied him the right to a full and fair hearing when the court "limited testimony to the enforcement of the Judgment and Addendum, the determination of arrears and an order to comply with a QDRO" at the May 13, 2014 hearing, and somehow indicated to Edwin that his defenses would be addressed at a later point in time, but then never addressed those defenses again and did not "allow[ ] Edwin to present testimony and evidence regarding his defenses at the March 3, 2015, hearing." We therefore attempt to address Edwin's arguments as to both the May 13, 2014 hearing, as well as the March 3, 2015 hearing.
Again, to the extent that Edwin is asserting that the trial court denied him the right to a full and fair hearing with respect to the May 13, 2014 hearing, such a contention is untimely. However, even assuming that Edwin could raise this contention on appeal at this time, we reject it.
First, we disagree with Edwin's characterization of the record in a number of ways. Edwin attempts to portray the trial court as having limited his testimony at the May 13, 2014 hearing and "refusing to allow his attorney to present all relevant, competent evidence related to his claims for defenses to the enforcement of the Addendum and the determination of arrears which were properly plead [sic]."
As an initial matter, although Edwin suggests that he raised the defenses of estoppel, breach of the covenants of good faith and fair dealing, undue influence, and laches with respect to Dorothy's motion to enforce the Addendum, a review of Edwin's pleadings filed with respect to Dorothy's request demonstrate that Edwin opposed Dorothy's request on the following grounds: (1) the MSA was the final judgment and determined the parties' respective entitlement to the CalPERS retirement benefits, (2) the Addendum was void as a result of the court's lack of subject matter jurisdiction, (3) Dorothy implied her consent to the agreement in the MSA by waiting for 10 years and should be estopped from making any claim to the CalPERS retirement, and (4) Dorothy's actions in attempting to frustrate Edwin's "right to his negotiated and bargained for exchange," in the form of his retirement benefits, constitute a breach of the covenant of good faith and fair dealing. Thus, in his legal briefing on the matter, Edwin clearly raised his defenses of estoppel and breach of the covenants of good faith and fair dealing. However, Edwin did not mention that he intended to argue undue influence and/or laches. Nevertheless, in a declaration submitted in support of his opposition to Dorothy's request for order, Edwin did make certain factual statements that one could reasonably interpret as supporting the defenses of undue influence and laches. For example, Edwin declared that at the time he executed the Addendum, he was not represented by an attorney, while Dorothy was represented, and he also attested that he did not recall executing the document, mentioning that he "had an issue with drinking alcohol to excess," which was something about which Dorothy was aware. Edwin also attested to the fact that after the dissolution of the parties' marriage, he had seen Dorothy approximately every five to six weeks when she would cut his hair, and she was aware of the fact that he was retired and receiving CalPERS retirement distributions. Edwin states that he had "disclosed and discussed with Dorothy that I was retired, receiving and living off my monthly PERS retirement distributions." (Some capitalization omitted.) These facts, if believed, could possibly support the defenses of laches and undue influence that Edwin now contends the trial court denied him an opportunity to address.
The problem with Edwin's argument that the court denied him due process with respect to these defenses is that, despite Edwin's attempt to characterize the court as having "limited" his ability to present his defenses to Dorothy's request to have the court enforce the Addendum, the record reflects that trial court did no such thing. Rather, the court permitted both parties to present evidence at a long form hearing, and there is no indication in the record that the court limited the type of evidence that the parties could present. Both parties testified with respect to the Addendum at the hearing on May 13, 2014. Edwin has pointed to nothing in the transcript of that hearing to demonstrate that the court limited his presentation of evidence in any way. In addition, a review of the transcript demonstrates that Edwin's attorney questioned him regarding his memory about returning to Attorney Shular's office in 1998 (a meeting that Edwin testified may have been about the 1998 Addendum), about Dorothy "threaten[ing] [him] if [he] didn't sign divorce documents," about how often he saw Dorothy to get his hair cut by her, and about whether he shared with Dorothy "part[s] of [his] retired life." The court did not limit the types of questions that Edwin's attorney could ask, and did not indicate that Edwin would not be permitted to testify about certain matters, other than to rule on very typical evidentiary objections, mostly related to questions of relevance.
In addition, the clerk's transcript contains no motions in limine or written orders by the court that reflect any limitation on what evidence Edwin would be permitted to present in response to Dorothy's request for order.
Despite this record, Edwin appears to attempt a sleight of hand—suggesting that the court "limited testimony to the enforcement of the Judgment and Addendum, the determination of arrears and an order to comply with a QDRO." Aside from the fact that these matters are precisely the matters to which Edwin claimed his defenses applied, and, therefore, a limitation of testimony to these matters would necessarily include evidence regarding Edwin's defenses to the enforcement of the terms of the Addendum, there is also the fact that the transcript reflects that the trial court did not place any such limitation on the evidence that Edwin would be permitted to present. Indeed, the reference to the reporter's transcript on which Edwin relies to support his contention is to the opening statement of Dorothy's attorney, during which the attorney, not the court, describes what Dorothy is requesting of the court at the May 13, 2014 hearing. Given this record, Edwin was fully afforded an opportunity to present any defenses he believed he had to Dorothy's request for enforcement of the Addendum and arrears, thereby satisfying any procedural due process concerns.
Edwin further attempts to muddy the waters by suggesting that he understood "the court's limitation of the issues to mean that the defenses would be addressed at a subsequent hearing." The fact that Edwin's counsel may have misunderstood the court's intentions is not the fault of the court. Rather, it was incumbent on counsel to seek clarification, at the time, as to whether the court intended to limit the presentation of evidence. Again, however, this court's reading of the record provides no support for Edwin's contention that the court in any way prevented Edwin from presenting evidence regarding the defenses that he raised in his pleading and at the hearing. Further, to the extent that Edwin is suggesting that what the court said in making its ruling with respect to Dorothy's request for order somehow caused Edwin to "h[o]ld th[e] belief" that the court intended to address Edwin's defenses at a later hearing, such a suggestion is untenable. What the court states at the conclusion of a hearing cannot be construed as playing any role in limiting the parties, at the start of the hearing, with respect to their ability to present their arguments and evidence. The fact that the trial court made the following statement, at the conclusion of the hearing, after hearing testimony from both parties and the presentation of evidence from both parties, cannot form the basis of a procedural due process claim that the court somehow prevented Edwin from presenting his defenses at that hearing:
"I did go through the reconstituted file a couple of times. I specifically read the marital settlement agreement executed by the parties that was filed with the Clerk of the Superior Court on March 10th, 1997, as well as the addendum that was filed with the Clerk of the Superior Court on September 21st, 1998. I read it multiple times, because I just wanted to get an idea of what the four corners of the document said. And I'm limiting it to the four corners of the document. What the parties' intent was — were in entering into it, whether it's the addendum or the MSA is irrelevant, from my perspective. Whether there were threats of assets being taken away or physical violence, it's irrelevant to the document at this point in time."
Although the trial court did not specifically address, in its ruling, Edwin's various defenses does not mean that the court did not consider Edwin's defenses. Nor does it mean that the court did not permit Edwin to present evidence as to those defenses. Rather, the court's ruling implicitly rejects Edwin's defenses. This is sufficient. (See, e.g., Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125 ["A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision. . . . In other words, a trial court rendering a statement of decision is required only to set out ultimate findings rather than evidentiary ones"].) Nothing about the trial court's ruling indicates that the court did not allow Edwin to try to make out his case as to why the court should not enforce the terms of the Addendum. We therefore reject Edwin's contention that the trial court denied him due process in failing to afford him a full and fair hearing on his defenses.
However, the court did state more than what we have quoted here. In particular, the court specifically rejected Edwin's contentions regarding the court's authority to adopt the Addendum and incorporate it into the final judgment.
2. Edwin has demonstrated no error with respect to the trial court's denial of his defenses of laches, equitable estoppel, undue influence and/or breach of fiduciary duty or confidential relationship
Edwin contends that, even if this court determines, as we have, that he was afforded a full and fair hearing on his defenses, the trial court nevertheless erred in denying him relief pursuant to the various defenses that he raised. These arguments are also without merit.
For example, Edwin contends that there is insufficient evidence to support a finding that Dorothy should not be equitably estopped from claiming a right to a portion of the CalPERS retirement, and/or that the court legally erred in denying Edwin's defense of equitable estoppel. Edwin asserts that "[t]he evidence presented to the trial court shows Edwin began receiving CalPERS benefits in 2001 and Dorothy did not file her Request for Order until 2014," and argues that she did nothing between 1998 and 2014 to try to obtain a QDRO. Edwin contends that Dorothy "slept on her rights" when she "was silent for approximately sixteen years."
Dorothy actually filed a request to join CalPERS in the dissolution proceedings in July 2013, which indicated her desire to obtain the retirement benefits to which she asserted she was entitled. She filed her request for order regarding enforcement of the judgment in February 2014.
With respect to Edwin's equitable estoppel defense, " '[f]our elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) [It] must intend that [its] conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) [it] must rely upon the conduct to his injury.' " (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59.) "The determination of whether a [party]'s conduct is sufficient to invoke the doctrine is a factual question entrusted to the trial court's discretion. [Citation.] The issue is whether, viewing the evidence and all the inferences therefrom in the light most favorable to [the party against whom estoppel is being asserted], there was substantial evidence upon which the court could reasonably have found as it did." (Cuadros v. Superior Court (1992) 6 Cal.App.4th 671, 675.)
First, we note that Edwin cannot satisfy the third element of an equitable estoppel defense—i.e., that the party asserting the estoppel must be ignorant of the true state of facts. Edwin's signature is on the Addendum. He cannot be said to have been ignorant of the fact that he and Dorothy stipulated to her entitlement to a portion of the CalPERS retirement benefit. Further, the record does not fully support Edwin's version of the timing of events. Dorothy testified at the hearing that she only learned about Edwin's retirement "[m]aybe about two years ago" from the date of the May 13, 2014 hearing. In response to a question from Dorothy's attorney about whether he had notified Dorothy that he had retired, Edwin said, "I don't think I sent her a formal letter or — she continued to — Ms. Thompson's a hairstylist. I continued to go to her for cutting my hair. I'm sure we had a discussion that I was going to retire." Edwin had "no idea" when that discussion took place, but assumed it was in 2001. Further, when Edwin was questioned by his own attorney, Edwin's attorney never directly asked him whether he had expressly informed Dorothy that he had retired. Rather, Edwin's attorney asked him questions such as the following: "Was your boating experience part of your retired life? [¶] . . . [¶] Was going down to Mexico part of your retired life? [¶] . . . [¶] Did you share those — that — those parts of your life with Dorothy — Ms. Thompson? [¶] . . . [¶] And during your general conversations, did you share with Ms. Thompson your life in retirement?" In response to that last question, Edwin responded, "I'm sure I — it was rather rough at the end of my work career with the schools, dealing with difficult kids, kind of working out of a specific area that I was trained in. So, yes, I'd say — I had retired — or I had conversations that I'm going to be real happy to be away from it." (Italics added.) Edwin's testimony does not contradict Dorothy's. Rather, Edwin's position at trial in this regard appears to have been that Dorothy should have inferred that he was retired from the things that they discussed during the haircuts that she continued to give him. However, given this testimony, it is possible that Dorothy was led to understand that Edwin was looking forward to retirement at some point in the future, but that he had not yet retired and/or had not yet begun receiving his CalPERS retirement benefits.
Edwin's attorney did not ask Dorothy any questions about when or how she found out that Edwin had retired, opting to ignore the issue entirely in his questioning of her.
The trial court could have believed Dorothy's testimony that she only learned of Edwin's retirement sometime in approximately 2012. Dorothy sought to join CalPERS into this action in mid-2013. Based on Dorothy's testimony about when she learned that Edwin had begun drawing his retirement, she waited less than a year-and-a-half to try to obtain the portion of the CalPERS retirement to which she believed she was entitled. On this record, therefore, there is sufficient evidence to support the trial court's implicit rejection of the argument that Dorothy should be equitably estopped from enforcing the Addendum.
Edwin also argues that the trial court "exceeded all bounds of reason when denying Edwin's defense of laches because the application of facts does not support the trial court's decision and there was no evidence to support the trial court's ruling." "A party asserting laches must show both unreasonable delay and prejudice resulting from the delay. [Citation.] A trial court's ruling regarding laches will be sustained if there is substantial evidence to support it." (Martin v. Santa Clara Unified School Dist. (2002) 102 Cal.App.4th 241, 257.) As an initial matter, Edwin did not mention the legal defense of laches in his memorandum of points and authorities filed in response to Dorothy's request for order. However, Edwin appears to suggest that that the trial court should have relied on the defense of laches because Edwin presented facts sufficient to demonstrate that laches should apply. To the extent that Edwin can be understood to have raised a laches defense, that defense is based on the same underlying facts that he contends support his defense of equitable estoppel. Indeed, Edwin relies on Dorothy's "unreasonable delay" in asserting her right to the CalPERS retirement benefits as the basis of his laches claim. Again, the court apparently determined that the delay was not unreasonable given the circumstances presented in this case, and this determination is supported by the evidence.
Finally, Edwin contends that there is insufficient evidence to support a finding that the Addendum was not the product of undue influence and/or the result of Dorothy's breach of her fiduciary duty or her confidential relationship with Edwin. Edwin suggests that because the trial court did not make "express findings regarding the execution of the Addendum or Edwin's claim it was procured by undue influence," the court "did not take into consideration the validity of the Addendum" and simply interpreted the document. We disagree. Edwin faults the court for stating, "[w]hether there were threats of assets being taken away or physical violence, it's irrelevant to the document at this point in time." However, it appears that the court was saying that it did not find credible either party's opposing claims of inappropriate conduct by the other during the decision-making process with respect to their marital dissolution proceedings. Indeed, although Edwin testified at the hearing that at some point Dorothy had told him that "if [he] d[idn't] pay her the money, she's going to sue [his] ass with her mother's inheritance and take everything [he] own[s]," the questioning never went further to explore whether Edwin felt threatened to enter into the Addendum as a result of this statement. Beyond the lack of evidence to support an undue influence defense, it is notable that Edwin's attorney also did not make any argument at the hearing that undue influence was applied to Edwin to get him to enter into the Addendum. This clearly was not a major issue at the hearing, and the trial court could have found Edwin to have been lacking credibility on this point. To the extent that Edwin even raised undue influence as a defense, the trial court did not err, on this record, in rejecting Edwin's contention that he entered into the Addendum as a result of undue influence.
Edwin's argument regarding breach of fiduciary or confidential relationship duties similarly fails. The court clearly weighed the parties' testimony, and determined that despite Edwin's decision to enter into these negotiations without counsel, there was nothing in the record from which to conclude that Dorothy had any unfair advantage over Edwin in sorting out the matters between them. Indeed, although Edwin suggests that he received nothing in the Addendum, and that there was thus no consideration for his agreement to the modification of the disposition of the CalPERS retirement benefits that was effectuated by the Addendum, the evidence contradicts this contention. Edwin received the entirety of the Mexico property in exchange for $12,500, which, in the absence of evidence as to the fair market value of the residence, could have been a reduced value. He also secured beneficial terms for his equalization payment to Dorothy, such that he would not have to pay anything to her until he sold the house that he obtained in their settlement (a house that the record suggests was more valuable than the property Dorothy obtained in the settlement) or died. We cannot conclude that Edwin was given no consideration for the change in the MSA's terms that was effectuated by the Addendum, and there is thus sufficient evidence in the record to support the trial court's implicit rejection of Edwin's contention that Dorothy breached a duty to Edwin in executing the Addendum. E. Edwin's contention that "[t]he trial court erred by refusing to issue a statement of decision" is without merit
Edwin contends that, pursuant to Code of Civil Procedure section 632, the trial court has a mandatory duty to provide a statement of decision when one has been properly requested. Edwin acknowledges that a statement of decision is typically required only with respect to trials, but, he argues, there are certain exceptions. For example, a statement of decision "may be required on a motion ruling where the motion was in the nature of a 'trial' of fact issues." (City of San Diego v. Rancho Penasquitos Partnership (2003) 105 Cal.App.4th 1013, 1044 (Rancho Penasquitos).)
Code of Civil Procedure section 632 provides: "The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial."
Although there is ambiguity in Edwin's briefing with respect to the precise proceeding for which he contends the trial court should have issued a statement of decision, at one point Edwin indicates that he "properly requested a statement of decision [on November 5, 2015] by filing a request prior to the hearing date [of November 6, 2015]" He contends that he listed "specific controverted issues" that he wanted the trial court to address with respect to the November 6, 2015 proceeding, and complains that the trial court declined to provide him with a statement of decision, and instead relied on the findings made by the trial court at the May 13, 2014 hearing. Edwin contends that the trial court erred in "refusing to issue a statement of decision," given that he properly requested one, and that the matter must be remanded for the trial court to issue a proper statement explaining the factual and legal basis for its decision.
A review of the "controverted issues" Edwin listed in this document demonstrates that Edwin was attempting to undermine the validity of the Addendum by questioning the trial court's jurisdiction to adopt the Addendum by order and incorporate the Addendum into the judgment.
Assuming that Edwin is challenging the lack of a statement of decision with respect to the November 6, 2015 hearing, that hearing was held to address a request for order that Edwin had filed, which he styled as a "[m]otion to [v]acate." In his request for this order, Edwin sought to have the court "vacate" it's May 13, 2014 ruling in which the court determined that the Addendum was enforceable, because, Edwin contended, the court was without jurisdiction to adopt the Addendum and incorporate it into the judgment, and thereby modify the judgment.
At the hearing, the trial court questioned whether Edwin's motion was in reality a "motion for reconsideration" regarding the court's May 13, 2014 ruling, asking, "How is this not just a motion for reconsideration in the sense that a motion for reconsideration must outline what could have been presented, or why this same defense or same legal theory wasn't presented either in 2014 or in March of 2015?" In response, Edwin's attorney argued that the trial court possesses "inherent power to correct its judgment, and to vacate a void judgment." Counsel proceeded to argue precisely what Edwin's counsel has argued on appeal, and what we have already rejected, i.e., that the trial court lacked jurisdiction to modify the judgment, after the property division had been made. Edwin's counsel contended that the trial court lacked subject matter jurisdiction to do anything with the Addendum, the court's order adopting it was void, and, therefore Edwin's motion to set aside could be heard at any time.
After hearing argument from counsel for both parties, the trial court stated, "I understand that your argument, Mr. Moore, on behalf of your client, is one of mainly public policy that judgments should remain final. That gives us some peace of mind that the final orders or the final judgments will stand the test of time. [¶] In the end, it's my feeling that both on May 13th, 2014 and March 3rd, 2015, that was part and parcel of Judge Powazek's ruling. [¶] If this — if Judge Powazek had felt that this Addendum went against public policy, went against the ability of the superior court to [keep as] final those orders and those judgments that should be final, that would have been his ruling. [¶] The March 3rd, 2015 hearing was very broad in terms of settling all defenses and what was considered — what was dealt with, what was decided. [¶] Mr. Moore, I'm denying your motion to vacate the judgment. Clearly this has been hotly litigated, and maybe the appellate court needs to weigh in."
At that point, Edwin's attorney indicated to the court that he had requested a statement of decision, and took issue with the court referring to Edwin's motion as one to vacate the "judgment" as opposed to one to vacate the "order of May and the Addendum, as identified in the brief." In response, the trial court stated:
"Right. I guess — for the reporter, let me clarify. When I said, "motion to vacate the judgment,' that was with the understanding that Judge Powazek considered the Addendum to be part of the end judgment, in the end. That's my ruling. [¶] So my ruling is denying your request to strike, invalidate the Addendum itself. [¶] It's my feeling that Judge Powazek addressed that on both those dates. [¶] You asked me for a statement of decision. I'm declining to do that today. The same as Judge Powazek did on May 13th, that transcript, I think, is pretty clear on what his interpretations were, what his findings were, in terms of the transcript. And so I think there's ample opportunity for the appellate court to review what Judge Powazek did and what I'm relying on in deciding whether, legally, we're getting it wrong. Now, I'm attaching myself to that. But the request is denied."
Subsequently, on January 29, 2016, the trial court issued "Findings and Order after Hearing" (some capitalization omitted), in which the court stated the following:
"1. The Court finds that as to both the May 13, 2014, and the March 3, 2015 hearings, the public policy that judgments should remain final was part and parcel of Judge Powazek's rulings. This Court and Judge Powazek both considered the public policy that judgments should remain final in making the orders in this case.
"2. The Court denies Respondent's Motion to Vacate the Court's Order of May 13, 2014, with the understanding that Judge Powazek considered the Addendum to be part of the end Order and therefore, denies Respondent's request to invalidate the Addendum itself.
"3. The Court denie[s] Respondent's request for a Statement of Decision. The Court finds that similarly to the previous hearings, the Court transcript clearly reflects the findings of the Court.
"4. The Court reserves jurisdiction over Petitioner's request for sanctions. The Court directs Petitioner to file a separate motion on this issue and provide the Court with recent Declarations." (Italics added.)
It is clear from the record that the issue that Edwin sought to address at the November 6, 2015 hearing was whether the trial court had jurisdiction to act when it adopted the Addendum by order of the court in 1998, or instead, whether the court acted without subject matter jurisdiction at that point in time, thereby invalidating any subsequent actions taken by the court in reliance on the Addendum. Edwin contends that he was entitled to a statement of decision with respect to these arguments, as presented in this motion. We are not persuaded.
Code of Civil Procedure section 632 provides that a written statement of decision is required, if requested, "upon the trial of a question of fact by the court." In a statement of decision, the trial court must explain "the factual and legal basis for its decision as to each of the principal controverted issues at trial." (Code Civ. Proc., § 632.) "It is settled that '[i]n rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial court's determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining party's favor which would have the effect of countervailing or destroying other findings. [Citation.] A failure to find on an immaterial issue is not error. [Citations.] The trial court need not discuss each question listed in a party's request; all that is required is an explanation of the factual and legal basis for the court's decision regarding the principal controverted issues at trial as are listed in the request.' " (Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.)
A statement of decision ordinarily is not required in connection with a ruling on a motion, and this is true even where a motion involves an extensive evidentiary hearing. (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294 (Fong).) However, courts have created an exception to the general rule "with respect to special proceedings based on ' "a balancing of the following factors: (1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings." ' " (Id. at p. 295.)
One court has determined that a motion to amend a judgment to add an individual as a judgment debtor based on an alter ego theory—i.e., a motion involving something other than a "special proceeding"—also required a statement of decision. (See Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654 (Gruendl).) The court in Gruendl concluded that a statement of decision was required with respect to that particular motion, not only because of the importance of the trial court's ruling to the parties and the difficulty of appellate review, but also because a statement of decision would have been required if the appellant had been named as a defendant in the complaint. (Id. at p. 661.) Courts appear split, however, as to whether Gruendl states a rule of general applicability, requiring a statement of decision, upon timely request, upon ruling on a motion if the court determines based on the two factors applicable to "special proceedings" that a statement of decision should be required, or whether Gruendl was a unique situation, involving a unique motion, from which no rule of general applicability may be gleaned. (Compare Rancho Penasquitos, supra, 105 Cal.App.4th at pp. 1044-1045 [describing Gruendl as creating a "very limited exception to [the general] rule" with respect to motions where "the motion was in the nature of a 'trial' of fact issues"], with Fong, supra, 193 Cal.App.4th at pp. 295-296 [Gruendl does not establish a rule requiring a statement of decision upon the ruling on a motion if two special proceeding factors are met].)
We agree with the Fong court, and conclude that Gruendl involved a unique circumstance, in that in Gruendl, "the plaintiff was aware of the appellant's relationship to the defendants at the time the complaint was filed, and . . . it would be unfair to deprive the appellant of the right to a statement of decision solely because the plaintiff sought to impose alter ego liability by way of a postjudgment motion in lieu of naming the appellant as a defendant in the complaint." (Fong, supra, 193 Cal.App.4th at p. 296.) The Gruendl court's reasoning with respect to the fact that the appellant had been denied a statement of decision to which he would otherwise have been entitled "was essential to the holding in Gruendl," and, as the Fong court explained, the fact that the defendant in Gruendl would have otherwise been entitled to a statement of decision but for the unique procedural history of that case distinguishes Gruendl from this case. (See Fong, supra, at p. 296.) We therefore conclude that the general rule that no statement of decision is required with respect to a trial court's ruling on a motion controls here, and that Edwin was not entitled to a statement of decision with respect to his motion to vacate, as heard by the court on November 6, 2015.
Even assuming that the rule of Gruendl were applicable to the motion at issue, we would conclude that a statement of decision was not necessary, given the sufficiency of the record with respect to the issues raised by this motion. It is clear from the record that the issue that Edwin sought to address at the November 6, 2015 hearing was whether the trial court had jurisdiction to act when it adopted the Addendum by order of the court in 1998, or instead, whether the court acted without subject matter jurisdiction at that point in time, thereby invalidating any subsequent actions taken by the court in reliance on the Addendum. It is also abundantly clear that the trial court rejected—multiple times—Edwin's contention that the court acted without jurisdiction in adopting the Addendum and incorporating it into the final judgment in this action. In rejecting Edwin's argument, the trial court implicitly concluded that the court possessed jurisdiction to act when it adopted the Addendum in 1998, and when it subsequently enforced the terms of that Addendum in 2014. The record created by the trial court in his regard is more than sufficient to permit us to address this issue—indeed, we have already addressed this issue, despite the lack of a statement of decision with respect to this hearing. --------
IV.
DISPOSITION
The orders are affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. HALLER, J.