Marriage of Ward CA1/5 ( 2021 )

Filed 8/27/21 Marriage of Ward CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re the Marriage of DONNA
WARD and THOMAS ALLEN
WARD.
DONNA WARD,
Respondent. A159250
v.
(Contra Costa County
THOMAS ALLEN WARD,
Super. Ct. No. MSD16
Appellant. -03246)
Thomas Allen Ward (husband) appeals from a judgment denying his
motion to quash writs of execution filed by Donna Ward (wife) to enforce a
judgment in their divorce action and to declare that judgment to be fully
satisfied. He argues the writs did not accurately reflect what he owed and
that he was entitled to offsets for rent and damage to a home that was
awarded to him as his separate property. Husband also challenges the trial
court’s award of attorney fees as a sanction under Family Code section 271.1
We affirm.
Further statutory references are to the Family Code unless otherwise
1
indicated.
1
I. BACKGROUND
Wife filed a divorce petition in 2016 after 32 years of marriage. She
continued living in the family home. On November 16, 2018, the parties,
each represented by counsel, signed a Stipulation and Order for Division of
Property (settlement agreement) resolving all issues except spousal support.
Paragraph 1 of the settlement agreement provided, “The community
residence [in Moraga] shall be assigned to [husband] as his sole and separate
property subject to the following terms: [¶] a. Within 30 days of execution of
this agreement, [husband] shall provide proof of his ability to prequalify to
buy out [wife’s] interest in the residence [for] $464,000.00. [¶] . . . [¶] (d)
Upon completion of the terms outlined herein and upon receipt of the agreed
upon equalization payment by [wife], [wife] shall vacate the residence within
30 days of receipt, or by January 2, 2019, whichever happens second.”
Paragraph 8 provided, “The parties agree to mutually waive credits owed to
each other pursuant to Marriage of Epstein and Marriage of Watts.” (See In
re Marriage of Epstein (1979) 24 Cal.3d 76, 84–85 (Epstein), superseded on
other grounds as stated in In re Marriage of Walrath (1998) 17 Cal.4th 907,
914; In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374 (Watts).)
Paragraph 12 provided that a certain Bank of America account was
community property and that $21,415 would be transferred to wife within 45
days. The settlement agreement also divided other property and required
equalizing payments that are not at issue here.
In December of 2018, the court held a trial on the issue of support and
issued a statement of decision awarding wife monthly support of $5,000
(reduced to $4,000 in 2022), along with $4,000 in temporary support arrears.
It also ordered husband to contribute $24,000 to wife’s attorney fees, to be
paid at a rate of $1,000 per month. (See § 2030.) Husband appealed these
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orders and we affirmed in an unpublished opinion. (In re Marriage of Ward
(April 29, 2020, A156599) [nonpub. opn.].)2
Meanwhile, while his appeal was pending, husband refinanced the
family home in March 2019 and paid wife the equalization payment for the
home as provided in their settlement agreement. Wife moved out in April
2019. Husband paid wife only $7,315 toward the attorney fees, support
arrearages and division of the remaining property that he had been ordered
to pay, and he took the position that the remaining amount he owed had been
satisfied because he was entitled to offsets against the judgment for wife’s
use of the property after it was awarded to him and for wife’s damage to the
property while it was under her control.
When efforts to meet and confer about the delinquent payments were
unsuccessful, wife obtained writs of execution issued to the sheriffs of Contra
Costa County and Los Angeles County, where husband had bank accounts.
Due to the error of wife’s counsel, the amount sought by the writs ($49,415
for the unpaid balance plus fees and interest) did not reflect the $7,315
payment that had been made by husband.
The Los Angeles County Sheriff delivered notice of levy to Bank of
America, where husband had a bank account, but husband had by that time
closed the account. The error in the amount stated in the writs was
discovered by the parties, and wife’s counsel conferred with husband, who by
then represented himself, concerning this error. Counsel represented that
she would not be attempting to serve any additional writs with the incorrect
amount noted.
Husband filed a Motion to Quash Writs of Execution and to Declare
Judg[]ment Satisfied” on October 2, 2019, in which he argued that the
2 We take judicial notice of this opinion. (Evid. Code, § 452, 459.)
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judgment against him should be declared satisfied because (1) wife owed rent
from November 2018 to April 2019 on the family home as well as half of the
property taxes from 2018; (2) wife damaged the family home while she
resided there; and (3) husband had paid wife $7,315 toward the judgment
that was not reflected in the writs of execution. The court denied husband’s
ex parte application for an order shortening time to hear the motion to quash
and set the matter for a hearing.
Counsel for wife advised husband by email that the motion was moot
because the Bank of America account in Los Angeles County had been closed
and she would not be taking steps to have the Contra Costa County writ
served because it stated the incorrect outstanding amount. Husband
responded that his motion contained “two parts, a first part to Quash the
Writ, and a second part with a Declaration of Judgment Satisfaction. The
second part is not moot, so it is not necessary to remove the motion from [the]
calendar.”
The court denied the motion after a hearing held on November 6, 2019.
It found that a writ of execution was an appropriate remedy (see In re
Marriage of Farner (1989) 216 Cal.App.3d 1370, 1376–1378 [court must
determine whether writ of execution proper remedy for enforcing an order in
a family law case]), and that husband owed wife $42,100 under the terms of
the judgment, an amount which reflected the $7,315 payment that husband
had made.3 It denied husband’s requests for offsets against the judgment
based on rent and property taxes for the period when wife lived in the family
3 The original judgment included $21,415 for wife’s community interest
in the Bank of America account, plus $24,000 in attorney fees, plus $4,000 for
arrears of temporary spousal support, for a total of $49,415. When the $7,315
payment made by husband is subtracted from this amount, this leaves the
$42,100 that the court stated was owed under the judgment.
4
home, noting the parties had waived Watts charges and Epstein credits in the
settlement agreement. The court ordered husband to pay $7,900 of wife’s
attorney fees as a sanction under section 271.
II. DISCUSSION
A. Errors in Writs of Execution
Husband argues that it was error for the court to deny his motion to
quash because the writs of execution included the full amount originally owed
under the judgment and did not account for the $7,315 husband had already
paid to wife. Wife agrees the $7,315 was paid, and that the writs misstated
the amount owed under the original judgment, but she argues the writs are
“essentially ineffective” and that enforcement proceedings will need to be
initiated anew.
Given the undisputed error, arguably the court should have partially
granted the motion. (See In re Marriage of Peet (1978) 84 Cal.App.3d 974,
977–978 [affirming order partially quashing writ to reflect offset].) We
conclude, however, that the issue is moot because an appellate ruling to this
effect would “have no practical effect or cannot provide the parties with
effective relief.” (Californians for Alternatives to Toxics v. Department of
Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.)
At the hearing on the motion to quash, counsel for wife represented as
an officer of the court that the amount stated in the writs was incorrect and
that “any further enforcement will reflect the correct amount owed.” The
court indicated that only $42,100 was still owed under the original judgment
and that counsel “will correct the writ of execution to be $42,100.” This was
the proper amount of the unpaid balance of the original judgment reflecting
husband’s $7,315 payment.
5
Wife’s counsel has not taken steps to serve the writ in Contra Costa
County and the attempt to levy in Los Angeles County was unsuccessful
because husband had closed his bank account. Under the circumstances, a
reversal would serve no practical purpose.
B. Order that Husband Pay the Full Amount of Attorney Fees
Husband argues that the court erred in ruling that he owed $42,100
under the judgment because this included the full amount of the $24,000 in
attorney fees ordered and those fees were not yet fully due at the time the
motion to quash was heard. We agree with wife that this claim is also moot.
Husband reasons that because the original order allowed him to pay
the attorney fees at a rate of $1,000 a month, only a portion of the total
amount was owed when the hearing on the motion to quash was held in
November 2019. He notes that the first appeal, which challenged the
attorney fee award, was still pending and that consequently, the court did not
have jurisdiction to modify the attorney fee order by “accelerat[ing]” it so that
the full $24,000 was then owed. (See Paul Blanco’s Good Car Company Auto
Group v. Superior Court (2020) 56 Cal.App.5th 86, 97; In re Marriage of
Varner (1998) 68 Cal.App.4th 932, 936 [timely appeal generally divests a trial
court of jurisdiction over any matter affected by the appeal].)
Assuming the court could not order husband to pay the full amount of
the $24,000 in attorney fees when the hearing on the motion to quash was
held in November 2019 because under the original judgment, only a portion
of the fees was then owed, that is no longer true. As husband acknowledges,
his obligation to pay the fees was not stayed during the first appeal because
he failed to post an undertaking (Code of Civ. Proc., § 917.1, subd. (a)), and he
was required to pay $1,000 per month starting in December 2018. The full
$24,000 was due December 2020; thus, at this point, husband owes the full
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amount of the fees (which were affirmed in the first appeal). “ ‘ “An appellate
court will not review questions which are moot and which are only of
academic importance.” ’ ” (Friends of Bay Meadows v. City of San Mateo
(2007) 157 Cal.App.4th 1175, 1192 (Friends).)
C. Watts Charges
Husband argues the court’s calculation of the amount owed under the
judgment should have included an offset for rents owed by wife for the time
that she lived in the family home after the original judgment was entered.4
We disagree.
Where one spouse has the exclusive use of a community asset after
separation, that spouse may be required to compensate the community for
the reasonable value of that use. (In re Marriage of Falcone & Fyke (2012)
203 Cal.App.4th 964, 978 (Falcone); see § 2626.) “The right to such
compensation is commonly known as a ‘Watts charge.’ ” (Falcone, supra, 203
Cal.App.4th at p. 978; see Watts, supra, 171 Cal.App.3d at p. 374.)
Husband acknowledges that he waived Watts charges as part of the
settlement agreement, but he argues this waiver does not apply to charges
accrued after the house was awarded to him as his separate property. He
assumes that Watts charges, which compensate the community, can only be
applied during the period “between separation and trial.” (Falcone, supra,
203 Cal.App.4th at p. 978.) He argues that this means Watts charges could
not have been assessed after the trial in December 2018 (which resolved
those issues not resolved by the November 2018 settlement agreement), and
4 In the trial court, husband argued that wife should have paid one-half
of the property taxes on the family home in 2018. He appears to have
abandoned this basis for claiming offset on appeal.
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his waiver of Watts charges in the settlement agreement did not apply to
rents that would otherwise be owed after the trial.
We do not agree with the premise that the date of final judgment or
dissolution marks a bright line after which no Watts charges may be
assessed. In In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552–553,
the court recognized that Watts charges could be made when one party made
exclusive use of the family home from the date of separation until the date
“the community itself no longer held an interest in the residence.” Here, the
settlement agreement gave wife the right to stay in the property until 30
days after husband refinanced and paid her an equalizing payment equal to
half of the equity in the home.5 The community thus had an interest in the
property until 30 days after the equalizing payment was made, and Watts
charges could have been assessed up until that point absent a waiver. The
waiver of Watts charges in the settlement agreement continued to apply
while wife lived in the home waiting for her equalization payment. There is
no evidence wife stayed in the home longer than the date contemplated, and
the trial court did not err in denying an offset.
D. Offset for Damage Allegedly Caused by Wife
Husband argues that the court’s calculation of the amount owed under
the original judgment should have been reduced to reflect an offset for $6,000
worth of damage he alleges wife caused to the marital home while she lived
there. He presented no evidence below in support of this claim. Husband
5Although husband suggests that wife should have moved out of the
home upon her receipt of a $10,000 equalization payment pertaining to
property other than the marital home, a fair reading of the settlement
agreement is that the 30-day period for wife to vacate the home was triggered
by her receipt of the proceeds from the refinancing, which did not occur until
March 2019.
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argues he was precluded from offering such evidence by the court’s ruling
that Watts charges had been waived. But damage to the home is not a Watts
charge, and if husband had possessed evidence of damage that he wanted the
court to consider, he should have made an offer of proof. Husband has not
carried his burden of showing he was entitled to an offset. (See Conrad v.
Ball Corp. (1994) 24 Cal.App.4th 439, 444 [“A defendant seeking an offset
against a money judgment has the burden of proving the offset.”].)
E. Section 271 Fees
The court awarded $7,900 in attorney fees under section 271, which
provides that a family court may impose an award of attorney fees and costs
“in the nature of a sanction” where the conduct of a party or attorney
“frustrates the policy of the law to promote settlement of litigation.” (§ 271,
subd. (a).) A purpose of the statute is “to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys.” (Ibid.)
Husband argues there was no basis for making this award. We disagree.
We review the sanction order for abuse of discretion and reverse
“ ‘ “ ‘only if, considering all the evidence viewed most favorably in support of
its order, no judge could reasonably make the order.’ ” ’ ” (In re Marriage of
Feldman (2007) 153 Cal.App.4th 1470, 1478.) The court here could
reasonably conclude that the writs of execution in this case were necessary
only because husband made a unilateral and meritless claim that the
judgment had been satisfied because he was entitled to offsets against what
he owed.
Husband argues that wife made no showing she incurred any fees
because of the hearing on the motion to quash. We disagree. Wife’s counsel
presented evidence that she had made a number of attempts to meet and
confer and eliminate the need for a hearing, but husband declined to take the
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matter off calendar. Counsel also presented evidence that wife had incurred
over $17,000 in attorney fees since January 2019 due to her efforts to obtain
amounts due to her under the judgment. There was a sufficient relationship
between the fees and costs actually incurred and the award. (See
Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1154–1155 [§ 271 award
must be tethered to attorney fees and costs].)
Husband argued at the hearing on the motion to quash that he acted in
the good faith belief that he was entitled to have the judgment declared
satisfied. But in order to be sanctionable under section 271, conduct need not
rise to the level of bad faith or frivolousness. (In re Marriage of Norton (1988)
206 Cal.App.3d 53, 58–59 [interpreting predecessor statute to § 271].)
Husband suggests the judge presiding over the motion to quash was
biased, noting (1) she denied his ex parte request to quash the writs of
execution by writing “denied” on the request with “a big x through the order;”
(2) she made the comment, “So if you want to have a trial to discuss how you
should not be responsible for all of this stuff outstanding, we can do that;”
and (3) she set the amount of sanctions under section 271 at an amount “to
substantially match” the amount husband had already paid wife toward
satisfying the judgment ($7,900 in section 271 fees versus $7,315 already
paid). These circumstances do not demonstrate bias or suggest the judge
predetermined the issues.
III. DISPOSITION
The order denying the motion to quash and to declare the judgment
satisfied is affirmed. Ordinary fees on appeal are awarded to wife.
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NEEDHAM, J.
We concur.
SIMONS, Acting P.J.
RODRIGUEZ, J. *
Ward v. Ward / A159250
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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