Marriage of Dashtipour and Jenabi CA4/1 ( 2022 )

Filed 9/19/22 Marriage of Dashtipour and Jenabi CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of BEHNAM
DASHTIPOUR and MAHSHAD
JENABI.
D079442, D079760
BEHNAM DASHTIPOUR,
Appellant, (Super. Ct. No. 17FL005140C)
v.
MAHSHAD JENABI,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Daniel S. Belsky, Judge. Affirmed.
Law Office of Dennis Temko and Dennis Temko, for Appellant.
Bickford Blado & Botros and Andrew J. Botros, for Respondent.
Behnam Dashtipour (Husband) and Mahshad Jenabi (Wife) entered
into a marital settlement agreement (MSA), which was incorporated into a
final judgment of dissolution in 2018. The MSA requires Husband to pay
Wife $950 per month in child support, plus “50.00% of the net bonus and/or
commission income he receives within ten (10) days of receipt” as additional
child support. In 2021, Wife asked the family court to clarify that the word
“bonus” in the latter provision included Husband’s stock-based employment
compensation from Qualcomm known as restricted stock units (RSUs), and
she also sought child support arrears from Husband. After considering
extrinsic evidence regarding the parties’ intended meaning of the word
“bonus,” the court granted Wife’s requests and found that Husband owed
Wife $82,539.15 in child support arrears for the RSUs.
Husband appeals, arguing that: (1) the MSA’s child support provision
is void as against public policy; or alternatively, (2) the court erred in
considering extrinsic evidence; (3) to the extent the court could consider
extrinsic evidence, that evidence supported Husband’s interpretation of
“bonus” as excluding RSUs; and (4) even if Husband does owe additional child
support from RSUs, the court erred in calculating the arrears amount. We
conclude that the child support provision is not void, that the trial court
properly considered extrinsic evidence, and that substantial evidence
supported the court’s findings. Accordingly, we affirm the trial court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Marital Settlement Agreement
Husband and Wife married in March 2000 and separated in March
2017. In early 2018, the parties memorialized the terms of their divorce in
the MSA, which was incorporated into a May 17, 2018 judgment of
dissolution. They had two sons during their marriage who were both minors
at the time of the divorce.
The MSA provides for joint legal and physical custody of the children.
For child support, section 12.A of the MSA provides that Husband shall pay
Wife “$950.00 per month, allocated as $200.00 for [minor child] and $750.00
2
for [other minor child].”1 Section 12.B provides that Husband shall pay Wife
“50.00% of the net bonus and/or commission income he receives within ten
(10) days of receipt” as additional child support.2 The parties acknowledged
that the percentage allocations of Husband’s bonus were California Statewide
Uniform Child Support Guideline (Fam. Code, § 4050 et seq.; hereinafter
referred to as “guideline”),3 which “governs the minimum amount of child
support payable by one party to the other.” In section 12.D, the parties
“agree[d] that the foregoing provisions regarding child support are above the
1 Section 12.A of the MSA states in full: “Husband shall pay to Wife, as
and for the support of the minor children of the parties, namely [minor child]
and [other minor child], the total sum of $950.00 per month, allocated as
$200.00 for [minor child] and $750.00 for [other minor child]. Child support
payments shall be paid in advance and shall commence on the first day of the
first month immediately following Wife’s relocation from the parties’
residence and continue on the first day of each month thereafter. At the time
of Wife's relocation on August 1, 2017, Husband shall, as and for child
support attributable to the period of April l, 2017 to June 30, 2017, pay to
Wife a one-time payment in the amount of $2,850.00.” (Italics added.)
2 Section 12.B of the MSA states in full: “As additional child support,
Husband shall pay to Wife an amount equivalent to 50.00% of the net bonus
and/or commission income he receives within ten (10) days of receipt.
Husband shall provide written documentation of the bonus income or
commission income with the payment. The parties expressly agree the
foregoing bonus/commission income as and for additional child support shall
be allocated as 15.00% to [minor child] and 35.00% to [other minor child].
The parties agree and acknowledge the foregoing allocations of Husband’s
bonus and/or commission income are California Statewide Uniform Child
Support Guideline which governs the minimum amount of child support
payable by one party to the other.” (Italics added.)
3 Further statutory references are to the Family Code unless otherwise
indicated.
3
[guideline]” as calculated in “Exhibit ‘B,’ ”4 and that based upon the factors in
existence at the time the MSA was negotiated, the guideline amount of child
support payable by Husband to Wife was $704 per month.5
In section 16 of the MSA entitled “Child Support Standards Act
(Mandatory Guidelines),” the parties acknowledged that they were “fully
informed of their rights” as set forth in the guidelines; the MSA’s child
support provisions are “in the best interests of the minor child”; the
provisions were agreed to “freely, without threat or duress”; the parties have
“agreed to an amount which is above” the guideline; and the right to support
has not been assigned to any county and no application for public assistance
is pending.
4 “Exhibit ‘B’ ” is a DissoMaster report attached to the MSA which was
based on Husband having a gross monthly income of $15,750 and wife having
a gross monthly income of $9,634.
5 Section 12.D of the MSA states in full: “The parties agree that the
foregoing provisions regarding child support are above the [guideline] which
governs the minimum amount of child support payable by one party to the
other. Based upon the factors detailed below and in existence at the time this
Agreement was negotiated, the [guideline] amount payable by Husband to
Wife would be $704.00 per month, with $250.00 allocated for [minor child]
and $455.00 allocated for [other minor child]. A copy of the DissoMaster child
support calculation is attached hereto as Exhibit ‘B.’ The guideline
calculation, as set forth herein, is based upon the following findings: [¶]
(1) Husband's parenting timeshare of 49.99% of one child and 50.01% of the
other child, gross monthly income of $15,750.00, monthly deductions of
$230.00 for unreimbursed medical expenses, and tax filing status of Head of
Household with two (2) exemptions. [¶] (2) Wife’s parenting timeshare of
49.99% of one child and 50.01% of the other child, gross monthly income of
$9,634.00, monthly deductions of $300.00 for unreimbursed medical
expenses, and tax filing status of Head of Household with two (2)
exemptions.” (Italics added.)
4
As for spousal support, section 19 of the MSA provides that Husband
shall pay $650 per month to Wife. The parties also agreed that while
Husband was still obligated to pay child support for both children,
“Husband’s receipt of any bonus or commission income [would] not be
categorized as income available for spousal support . . . , as the parties have
specifically negotiated and allocated said income as and for additional child
support.”
Regarding division of property, section 29 of the MSA provides that
“[d]uring the marriage and prior to the date of separation, the community
obtained an interest in Qualcomm [RSUs] as a result of both parties’
employment with Qualcomm, Inc.” The parties agreed to divide equally the
community interest in the RSUs granted before the date of separation, and
the MSA detailed the tax consequences of the parties’ exercising their stock
options or units.
The judgment included Judicial Council Form FL-342, “Child Support
Information and Order Attachment,” requiring that child support payments
begin on April 4, 2017. The form also indicated that the order “does not meet
the child support guideline set forth in Family Code section 4055” and made
reference to another attached form entitled “Non-Guideline Child Support
Findings Attachment,” Judicial Council Form FL-342(A). On that form, the
court noted that the child support agreed to by the parties was above the
guideline amount, which would have been $704 per month. The court made
the following further findings as “required by Family Code sections 4056,
4057, and 4065”: “The parties have been fully informed of their rights
concerning child support. Neither party is acting out of duress or coercion.
Neither party is receiving public assistance and no application for public
assistance is pending. The needs of the children will be adequately met by
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this agreed-upon amount of child support. If the order is below the guideline,
no change of circumstances will be required to modify this order. If the order
is above the guideline, a change of circumstances will be required to modify
the order.”
B. Wife’s Request for Orders
In December 2017, rather than paying Wife 50 percent of the net post-
tax cash bonus he received at the end of the year, Husband deducted Wife’s
cash bonus amount from his cash bonus amount, then paid 50 percent of the
difference. Wife also expected to receive 50 percent of the post-tax value of
Husband’s RSUs from Qualcomm, but he never paid those amounts.
Disputes arose between the parties regarding these issues and the proper
interpretation of the MSA’s child support provisions.
In February 2021, Wife requested an order seeking clarification that
“bonus” in the MSA’s child support provision should include Husband’s RSUs.
Wife also made a request for child support arrears based on the value of
Husband’s RSUs that vested after April 2017. Wife submitted a declaration,
points and authorities, and exhibits in support of her requests. After
Husband filed a declaration in response, Wife submitted a reply declaration
attaching additional documentation.
During a May 2021 hearing on the request for clarification, Wife
argued that there is no ambiguity in the MSA because the Merriam-Webster
definition of the word “ ‘bonus’ ” is “ ‘[s]omething in addition to what is
expected or strictly due,’ ” and that “stock” is included in the definition as an
example. Wife further argued that there was no ambiguity in the agreement
because both parties knew about RSUs at the time they entered the MSA.
Alternatively, Wife contended that if the court did find ambiguity in the
MSA, then extrinsic evidence supports her interpretation of “bonus.”
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Specifically, Wife pointed to e-mails from early 2018 where Husband referred
to the fact that Wife was “already getting %50 [sic] of my bonus and [stock]
and child support” and that “stock and bonus is at 50%” to argue that he
understood stocks to be part of child support. Wife argued that because the
RSUs fluctuate in value, they were not included in the guideline calculations
alongside Husband’s base salary as income, but rather as part of his bonus.
Husband also argued there is no ambiguity in the MSA. However, he
asserted that the parties intended to keep RSUs separate from “bonuses and
commissions” as evidenced by the MSA’s separate section defining and
dividing RSUs granted before separation as community property. He argued
that neither party’s RSUs were included in the child support guideline
calculations because they were intended to be kept separate. He also argued
that the same e-mails Wife relied upon actually supported his position
because he wrote “ ‘stock and bonuses’ ” separately, as opposed to “ ‘stock
bonuses.’ ”
Before hearing argument, the court noted that stock options “can
become income when they are exercised, when they are sold, or when all
restrictions are removed from exercising or selling them, even if they are not
exercised or sold.” The court cited In re Marriage of Macilwaine (2018)
26 Cal.App.5th 514, 532 (Macilwaine), which held that once restrictions on
exercise and sale are removed, stock options are not materially
distinguishable from salary voluntarily deferred and should be included as
income for support purposes.
The court then noted that it would need to “examine the circumstances
under which the parties negotiated and entered into” the MSA to “give effect
to the mutual intention of the parties[.]” After considering the e-mails, the
dictionary definition of “bonus,” party declarations, and oral arguments, the
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court found that “the parties’ intent was to consider the RSUs Husband
receives” after the date of separation “as bonus income to be used for
calculation of child support.” The court distinguished section 29 of the MSA
defining and dividing RSUs because it dealt with property as of the date of
separation.
At a subsequent hearing in September 2021 to address Wife’s request
for child support arrears, Husband argued that an accurate arrears
determination could not be made without a forensic accountant because the
MSA calls for him to pay 50 percent of the “net” bonus received, and
additional taxes might be owed on the RSUs depending on how much
Qualcomm withheld.
Wife argued that because Qualcomm withholds taxes on the RSUs
when they are released, the “net” value is the amount Husband received at
vesting. Wife further contended that since the MSA dictates that Husband’s
additional child support payment is due to Wife within 10 days of receipt, no
“true-up” requirement for end-of-year tax consequences should apply.
In addition to amounts owed for a cash bonus and vacation time, the
court found that Husband owed Wife $82,539.15 in child support arrears for
the RSUs. In reaching that conclusion, the court relied on Wife’s calculation
of the post-tax value of Husbands’ RSUs on their vesting dates between
November 2018 and May 2021. The court noted that Husband had ample
time since the May 2021 hearing to consult an accountant and gather
information about potential additional tax consequences to controvert Wife’s
evidence, but in the absence of that information, the court found that Wife
met her burden of proof in showing the amount of arrears owed.
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Husband separately appealed the trial court’s order interpreting the
MSA and its subsequent order determining the arrearage. On joint motion of
the parties, we consolidated the appeals.
DISCUSSION
I
For the first time on appeal, Husband argues that the parties’ child
support agreement (which he agreed to as part of the MSA) is void as against
public policy because it limited the children’s right to support from Wife. We
disagree.
As noted, the child support agreement was part of the MSA, which was
incorporated into the final judgment of dissolution entered May 17, 2018. We
construe Husband’s argument as a claim that the child support portion of the
final judgment is void as against public policy. A judgment that is void on
the face of the record is subject to either direct or collateral attack at any
time. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017)
7 Cal.App.5th 1318, 1327.) A judgment will also be treated as void on its face
if the parties admit facts showing that it is void or allow such facts to be
established without opposition. (Id. at p. 1328.) Although the time to appeal
from the dissolution judgment has long passed, we must consider the merits
of Husband’s argument that its child support provision is void on its face.
Husband’s public policy argument is based on his contention that the
additional child support portion of the judgment was not guideline because
the parties omitted Wife’s cash and RSU bonuses from the guideline
calculation. According to Husband, this “abridged the children’s right to
support from their mother, contravening the public policy [that] both parents
are mutually responsible for the support of their children.”
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Husband’s argument is unpersuasive. This is not a case like those
cited by Husband, in which the parties by their agreement forever waived or
limited a child’s right to support from one parent. (See, e.g., Kristine M. v.
David P. (2006) 135 Cal.App.4th 783, 788-792 [finding that parents’
agreement to terminate father’s parental rights and permanently end his
obligation to pay child support was void as against public policy].) In this
case, the parties recognized Wife’s support obligation by factoring her gross
income into the guideline calculation, and the judgment did not deprive the
court of its authority to modify child support or order Wife to pay child
support at any time in the future. (§ 3651.)
California law imposes child support duties on both parents, but the
guideline formula “calculates a single sum owed by one parent to the other.”
(In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1161; see also § 4055,
subd. (b)(5) [guideline formula results in payment of child support from
higher earner to lower earner or vice versa].) This formula accounts for both
parties’ support obligations by factoring each of their gross incomes into the
calculation, but it “does not place a monetary figure on each parents’ support
duty.” (Drake, at p. 1161.) The parties here considered both parents’ gross
income in determining child support, and their agreement did not purport to
relieve Wife of her support obligations. Thus, the child support provision of
the judgment is not void as against public policy under the cases cited by
Husband.
Husband claims that because the parties excluded Wife’s bonus income
from the guideline calculation, the amount of child support in the MSA was
below guideline, even though the parties stipulated that it was above
guideline. But even assuming this is so (which Husband has not actually
shown), Husband cites no authority that it would render the parties’ child
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support agreement void as against public policy. The guideline formula is
only a rebuttable presumption as to the correct amount of child support.
(§ 4057, subds. (a) & (b).) Under section 4065, subdivision (a), the parties
may stipulate to a child support amount above or below the guideline
formula.6 A stipulated support agreement is one of the factors that may be
used to justify a departure from the guideline formula. (§ 4057, subd. (b)(1).)
“Indeed, stipulated child support is entirely consistent with the underlying
guideline objectives, which are ‘to encourage fair and efficient settlements of
conflicts between parents and . . . to minimize the need for litigation.’ ” (In re
Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1013, citing § 4053, subd.
(j).)
Husband further argues that the trial court failed to make the findings
required by section 4056, subdivision (a), for departing from the guideline
6 Section 4065, subdivision (a), provides: “Unless prohibited by
applicable federal law, the parties may stipulate to a child support amount
subject to approval of the court. However, the court shall not approve a
stipulated agreement for child support below the guideline formula amount
unless the parties declare all of the following: [¶] (1) They are fully informed
of their rights concerning child support. [¶] (2) The order is being agreed to
without coercion or duress. [¶] (3) The agreement is in the best interests of
the children involved. [¶] (4) The needs of the children will be adequately
met by the stipulated amount. [¶] (5) The right to support has not been
assigned to the county pursuant to Section 11477 of the Welfare and
Institutions Code and no public assistance application is pending.”
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formula.7 But the judgment included Form FL-342(A), a “Non-Guideline
Child Support Findings Attachment.” On this form, the court made the
findings for a non-guideline order “required by Family Code sections 4056,
4057, and 4065.” Husband has not made any substantive argument why
these findings were deficient, nor has he cited any authority supporting the
proposition that deficient section 4056 findings would render this portion of
the judgment void as against public policy. If a judgment is simply
erroneous, rather than void, it is not subject to collateral attack, even if the
error appears on the face of the judgment or record. (Jones v. World Life
Research Institute (1976) 60 Cal.App.3d 836, 840.) Thus, we conclude that
the child support provisions of the judgment are not void on their face.
II
Husband argues in the alternative that the court erred by considering
extrinsic evidence to determine the parties’ intended meaning of “bonus.” He
further contends that to the extent it was permissible for the court to
consider extrinsic evidence, it supported his argument that the parties did
not intend “bonus” to include RSUs.
A. Standard of Review
When construing a term in a judgment of dissolution that incorporates
an agreement between the parties, the court applies the general rules
governing the interpretation of contracts. (In re Marriage of Minkin (2017)
7 Section 4056, subdivision (a), provides: “To comply with federal law,
the court shall state, in writing or on the record, the following information
whenever the court is ordering an amount for support that differs from the
statewide uniform guideline formula amount under this article: [¶] (1) The
amount of support that would have been ordered under the guideline
formula. [¶] (2) The reasons the amount of support ordered differs from the
guideline formula amounts. [¶] (3) The reasons the amount of support
ordered is consistent with the best interests of the children.”
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11 Cal.App.5th 939, 948 (Minkin).) The primary objective is to give effect to
the mutual intentions of the parties. (Ibid.; Civ. Code, § 1636.) The court
typically determines the mutual intent first by examining the words the
parties chose and, when the language of the agreement itself is clear and
unambiguous, that language governs. (Minkin, at p. 948.) If a particular
term in the agreement is ambiguous, however, the court may also consider
extrinsic evidence to prove the parties intended a specific meaning to which a
given term is reasonably susceptible. (Ibid.; In re Marriage of Iberti (1997)
55 Cal.App.4th 1434, 1439.) For example, the court may consider evidence
concerning the circumstances under which the parties negotiated the
contract, the subject matter of the contract, and the subsequent conduct of
the parties. (Iberti, at p. 1439.) But it is the expressed objective intent of the
parties—and not the unexpressed subjective intent of any one party—that
governs. (Ibid.)
The decision whether to admit extrinsic evidence involves a two-step
process. First, the court provisionally receives all credible evidence
concerning the parties’ intentions to determine “ambiguity,” or in other
words, whether the language is “ ‘reasonably susceptible’ ” to the
interpretation urged by a party. (Winet v. Price (1992) 4 Cal.App.4th 1159,
1165 (Winet).) If the court decides the language is “ ‘reasonably susceptible’ ”
to the urged interpretation in light of the extrinsic evidence, that evidence is
then admitted to aid in the second step—interpreting the contract. (Ibid.)
However, “[e]xtrinsic evidence offered to prove an interpretation to which a
document is not reasonably susceptible is inadmissible.” (In re Marriage of
Dawley (1976) 17 Cal.3d 342, 353, fn. 7; see Winet, at p. 1167 [parol evidence
is inadmissible “to flatly contradict the express terms of the agreement”].)
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“Different standards of appellate review may be applicable to each of
these two steps, depending upon the context in which an issue arises. The
trial court’s ruling on the threshold determination of ‘ambiguity’ (i.e.,
whether the proffered evidence is relevant to prove a meaning to which the
language is reasonably susceptible) is a question of law, not of fact.” (Winet,
supra, 4 Cal.App.4th at p. 1165.)
Once it is determined that a given term is subject to more than one
interpretation, however, the appellate court gives deference to the trial
court’s review of any conflicting extrinsic evidence and any associated
credibility determinations, upholding the trial court’s interpretation of the
term so long as substantial evidence supports it. (Minkin, supra,
11 Cal.App.5th at pp. 948-949.) Under this standard, we will affirm the
judgment if there is any substantial evidence, contradicted or uncontradicted,
which supports the trial court’s finding. (Pusateri v. E. F. Hutton & Co.
(1986) 180 Cal.App.3d 247, 250 (Pusateri).) The testimony of a single
witness, even that of the respondent, can provide substantial evidence,
regardless of the number of witnesses or amount of evidence to the contrary.
(In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
B. Ambiguity Determination
Although the trial court did not make an express finding that the word
“bonus” is ambiguous, the court’s statements at the May 2021 hearing
indicate it implicitly concluded the term was reasonably susceptible to more
than one meaning. The court acknowledged that the term could carry the
broader meaning advocated by Wife, citing Macilwaine, supra,
26 Cal.App.5th at page 532. The court also found that “[t]he main issue here
is contract interpretation” and that it needed “to examine the circumstances
under which the parties negotiated and entered into” the MSA, citing Minkin,
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supra, 11 Cal.App.5th at page 948. This implies that the court decided
“bonus” was reasonably susceptible to the different interpretations urged by
the parties, and that it should consider extrinsic evidence. (See Winet, supra,
4 Cal.App.4th at p. 1165.)
Upon de novo review of the trial court’s conclusion that the term
“bonus” in the MSA is ambiguous, we agree. The MSA does not define the
term, and as the trial court pointed out, there was no express provision in the
MSA excluding RSUs from “bonus.” The court in Minkin found a similar
provision ambiguous, noting that the term “annual bonus” could be
interpreted as both “a discretionary payment based on performance or more
broadly as any payment above base salary,” which could include long-term
incentive plans. (Minkin, supra, 11 Cal.App.5th at p. 949.) Courts in other
jurisdictions have similarly concluded that the word “bonus” as used in the
child support provision of a marital settlement agreement is ambiguous and
can reasonably be interpreted to include stock options. (See, e.g., Williams v.
Williams (2015) 88 Mass.App.Ct. 1109 [2015 WL 6159827, pp. *2-4]; In re
Marriage of Steverson (Ill.Ct.App., Oct. 16, 2014, No. 2-14-0089) [2014 WL
5317742, p. *7].)
As Wife notes, the plain and ordinary definition of the term “bonus” can
encompass employee compensation in the form of stocks or stock options. For
example, Merriam-Webster defines the word “bonus” as “something in
addition to what is expected or strictly due: such as [¶] . . . [¶] a premium (as
of stock) given by a corporation to a purchaser of its securities, to a promoter,
or to an employee.” (Merriam-Webster Dict. Online (2022) [as of Sept. 15, 2022], archived at
; see also Black’s Law Dict. (11th ed. 2019)
p. 224, col. 2 [defining “bonus” as “[a] premium paid in addition to what is
15
due or expected”]; J. C. Peacock v. Hasko (1961) 196 Cal.App.2d 353, 359
[defining “ ‘bonus’ ” as “ ‘something . . . given in addition to an agreed
compensation’ ”]; In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 96 (Kerr)
[referring to Husband’s “salary and bonuses in the form of stock options”].)
On the other hand, as we discuss post, Husband offers various reasons
why the parties may not have intended to apply this broad dictionary
definition of the term “bonus” to include stocks. Accordingly, we agree with
the trial court that, as a matter of law, the term “bonus” in the MSA in this
case is reasonably susceptible to the different meanings suggested by the
parties.
Husband argues that there is no ambiguity as a matter of law, relying
initially on section 29 of the MSA, which governs the division of Qualcomm
RSUs. As the trial court noted, however, section 29 of the MSA only covers
RSUs granted to the parties up to the date of separation; it does not shed any
light on the question whether RSUs granted to Husband after the date of
separation constitute “bonus” income within the meaning of the child support
provision. In his reply brief, Husband concedes that Wife is “probably
correct” that section 29 does not bear on the definition of “bonus” in the child
support provision because section 29 deals with dividing assets. We agree
with Wife, as did the trial court, that section 29 does not render the word
“bonus” unambiguous as a matter of law for child support purposes.
Similarly, we reject Husband’s argument that the MSA’s reference to
“ ‘commission’ ” renders the word “ ‘bonus’ ” unambiguous as a matter of law.
Although Husband contends that the MSA’s delineation of “ ‘commission’ ” as
a separate category indicates that “ ‘bonus’ ” was also intended to be narrow,
this argument merely supports his preferred interpretation of “ ‘bonus’ ” and
16
is not so definitive as to make the term clear and unambiguous as a matter of
law.
Husband further contends that “ ‘bonus’ ” is unambiguous because
Wife’s interpretation “results in illegality, an impossibly indefinite contract”
given that RSUs have varying values and tax implications, and requiring
that the bonus income be paid to Wife within 10 days of “ ‘receipt’ ” was
“hopelessly indefinite.” According to Husband, Wife’s interpretation would
lead to “a hopeless exercise in speculation.”
We disagree. The fact that stocks can fluctuate in value or implicate
tax consequences has not prevented parties from agreeing to, and courts from
applying, child support provisions that include stocks or stock options. (See,
e.g., Kerr, supra, 77 Cal.App.4th at p. 95 [noting that generally, awarding
percentages of stock value for child support may remove the need for further
litigation, but reversing in that case because of an unforeseen “enormous
increase in value of [the] stock and consequently [the husband’s] stock
options”]; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 287
[acknowledging that “certain difficulties inhere in calculating support based
on income from stock options” but concluding that the Legislature has
provided courts with the means for overcoming them].) Nor is the word
“receipt” inapplicable to RSUs because, as noted in Macilwaine, stock options
are comparable to salary voluntarily deferred; once they are vested, and
restrictions are removed from exercising or selling them, they can be counted
as income received. (Macilwaine, supra, 26 Cal.App.5th at p. 532.) The same
is true of RSUs once they are vested and can be sold.
Finally, to the extent Husband argues that the word “ ‘bonus’ ” is made
unambiguous by the fact that the support amounts met or exceeded Wife’s
and the children’s needs, even without including RSUs, we disagree. Section
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4053 expressly provides that children “should share in the standard of living
of both parents” and that child support “may therefore appropriately improve
the standard of living of the custodial household to improve the lives of the
children.” As noted, under section 4065, subdivision (a), the parties were free
to stipulate to a child support amount above the guideline formula. Whether
or not the agreed-upon support exceeded Wife’s or the children’s needs may
be relevant to the question of interpretation, but in this context it does not
render the provision unambiguous as a matter of law. Accordingly, we reject
Husband’s argument that the word “bonus” was not reasonably susceptible to
Wife’s urged interpretation.
C. Interpretation of “Bonus”
Having decided the term is ambiguous as applied to stock-based
employee compensation, we next consider whether substantial evidence
supports the trial court’s interpretation of “bonus” as including Husband’s
RSUs. We conclude that it does.
It is undisputed that both parties were employed by Qualcomm and
received cash bonuses and RSUs as compensation. Both parties were thus
aware of and understood that RSUs were part of their Qualcomm
compensation, making it likely that they would contemplate incorporating
them into the MSA’s support provisions in some form.
Wife submitted detailed declarations attesting that throughout their
negotiations, the parties manifested their intention to include Husband’s
RSUs as part of the bonus analysis. With reference to specific dates and
documents, Wife stated that the parties discussed and ultimately agreed to
include both cash and stocks in child support. We cannot second-guess the
trial court’s weighing of the evidence as the trier of fact, including its implicit
determination that Wife’s attestations were more credible than Husband’s.
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(See Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107,
1128.) Wife’s declarations alone constitute substantial evidence to support
the trial court’s resolution of the conflicting extrinsic evidence in favor of her
interpretation.
Wife also presented evidence that incorporating Husband’s RSUs in
child support, and not spousal support, was a negotiated benefit of the MSA.
According to Wife, she made numerous concessions on spousal support to
reduce the amount Husband would have to pay her, in exchange for an
increase in the amount of child support he would have to pay for the children.
In section 19 addressing spousal support, the MSA provided that “[f]or the
period during which Husband’s obligation to pay child support to Wife
extends to both children, the parties expressly intend Husband’s receipt of
any bonus or commission income shall not be categorized as income available
for spousal support during such period, as the parties have specifically
negotiated and allocated said income as and for additional child support.” As
Wife points out, if Husband’s post-separation receipt of RSUs was excluded
from the category of additional child support, then a significant portion of
Husband’s income would not be accounted for in any form of support.
Finally, e-mails exchanged between the parties in early 2018 also
suggest that they intended to include RSUs in the meaning of the word
“bonus.” In a February 1, 2018 e-mail discussing expenses for the children,
Husband wrote that Wife was already “getting %50 [sic] of my bonus and
[stock] and child support. I think kids[’] expenses should be shared.” In an
earlier January 19, 2018 e-mail about the parties’ salary increases, Husband
noted that the monthly child support “is already 25% higher than
guidelines . . . and stock and bonus is at 50% . . . .” He then asked Wife if she
wanted to “adjust everything to the guidelines based on new numbers.”
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Because the subject matter of these e-mails was expenses for the children,
the trial court could reasonably conclude that Husband was referring to his
obligation to pay 50 percent of his “stock” in the context of child support, not
division of assets.
Even though Husband relied on his own interpretation of these e-mails
below, he contends for the first time on appeal that the MSA precluded the
trial court from considering them to discern the parties’ intent because the
MSA contained an integration clause. Section 68.B of the MSA provides, in
relevant part, that “[a]ny previous oral or written agreements between the
parties about matters addressed in [the MSA] are entirely superseded by [the
MSA].” Section 68.I provides that “[n]either of the parties . . . has made any
representation or warranty to the other party upon which the other party is
relying in entering into this Agreement, except as expressly provided in this
Agreement.”
Even assuming that Husband may raise this issue for the first time on
appeal (see Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 21-23), the
MSA’s integration provisions do not foreclose consideration of the e-mail
evidence. First, the e-mails were not presented as “previous oral or written
agreements” such that section 68.B would apply. As for section 68.I, even in
an integrated contract, extrinsic evidence may still be admitted to explain a
provision’s meaning if the meaning urged is one to which it is reasonably
susceptible, and the extrinsic evidence is not being used to contradict the
provision or offer an inconsistent meaning. (See Casa Herrera, Inc. v.
Beydoun (2004) 32 Cal.4th 336, 343.) The e-mail evidence did not contradict,
vary, or alter the meaning of the word “bonus” in the MSA, and both parties
used the e-mails to urge a reasonable interpretation of the term. Moreover,
the MSA did not have a provision broadly prohibiting any use of extrinsic
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evidence “whatsoever” as in the case cited by Husband. (Hot Rods, LLC v.
Northrop Grumman Systems Corp. (2015) 242 Cal.App.4th 1166, 1175-1176
[stating that “[o]rdinarily, even in an integrated contract, extrinsic evidence
can be admitted to explain the meaning of the contractual language at issue”
but finding that the parties expressed their intent to “bypass the general
rule” by agreeing to a contract provision that “ ‘no extrinsic evidence
whatsoever may be introduced in any judicial proceedings involving this
Agreement’ ”].) Accordingly, we reject Husband’s argument that the trial
court erred in considering the e-mails as extrinsic evidence.
In sum, substantial evidence supports the trial court’s resolution of the
ambiguity and its interpretation of the MSA to include Husband’s RSUs as
part of his “bonus” income.8 Husband’s various arguments for a different
interpretation may or may not have supported a contrary result, but that is
not the issue before us. We will affirm a judgment if there is any substantial
evidence, contradicted or uncontradicted, which supports the court’s finding.
(Pusateri, supra, 180 Cal.App.3d at p. 250.) “ ‘We do not review the evidence
to see if there is substantial evidence to support the losing party’s version of
events, but only to see if substantial evidence exists to support the verdict in
favor of the prevailing party.’ ” (In re Marriage of Brooks (2019)
33 Cal.App.5th 576, 592.) Having concluded that substantial evidence
8 To the extent Husband argues on appeal that Wife’s bonuses should
have been factored into the guideline calculations or included as a set-off
against his own payments (even though the MSA does not so provide), that
issue is not properly before us. The time to appeal the dissolution judgment
of May 17, 2018 has long passed, and the record does not indicate that
Husband has ever filed a request with the trial court for an order modifying
the child support provision. The trial court correctly found that this issue
was not properly before it. Accordingly, we do not address the merits of this
issue.
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supports the trial court’s findings based on the conflicting extrinsic evidence,
we find no error in the court’s interpretation of the word “bonus” in the MSA.
III
Finally, Husband contends that the court erred in calculating the
arrears amount based on his RSUs because the court did not “mak[e] an
accurate assessment of each parent’s taxable income.” More specifically, he
argues that the court should have required that an accountant analyze the
RSUs’ vesting values, consider the amount withheld by Qualcomm, and then
determine whether Husband might owe additional taxes. Again, we disagree.
A trial court’s calculation of arrearages owed under an MSA is reviewed
for substantial evidence. (In re Marriage of Campi (2013) 212 Cal.App.4th
1565, 1576-1577.) Here, the trial court’s calculation was supported by the
evidence presented by Wife. Husband offered no evidence contradicting her
calculation beyond mere speculation about potential tax consequences. It
was undisputed that Qualcomm withheld taxes on the RSUs, and Husband
presented no evidence that additional taxes would be due. Husband did not
argue that Wife’s calculations inaccurately represented the vesting values of
the relevant RSUs; indeed, he conceded that an accounting might even result
in him getting a tax refund. Furthermore, as Wife pointed out, because the
MSA requires Husband to remit the owed portion of additional child support
within 10 days of receipt, conducting a full year-end accounting would be
inconsistent with the terms of the MSA.
The trial court ultimately found that Husband failed to produce any
evidence controverting Wife’s calculation, despite having had access to the
underlying information “for many months[.]” The court went on to find that
Husband “had ample opportunity to consult with his own accountant, his own
personal accountant or expert accountant,” and yet did not do so. The court
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was entitled to draw an adverse inference against Husband based on his
failure to produce evidence that he would have to pay additional taxes on the
RSUs. If a party fails to produce evidence that would naturally have been
produced, “ ‘he must take the risk that the trier of fact will infer, and properly
so, that the evidence, had it been produced, would have been adverse.’ ”
(Williamson v. Superior Court of Los Angeles County (1978) 21 Cal.3d 829,
835, fn. 2, italics omitted.) We conclude that the trial court’s arrears order
with respect to Husband’s RSUs is supported by substantial evidence.
DISPOSITION
The orders are affirmed. Respondent shall recover her costs on appeal.
BUCHANAN, J.
WE CONCUR:
MCCONNELL, P. J.
AARON, J.
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