Marriage of Hamelynck CA4/1 ( 2021 )

Filed 10/20/21 Marriage of Hamelynck 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ERIN and
ANDREW HAMELYNCK.
D078030
ERIN EUN YOON,
Appellant, (Super. Ct. No. 18FL008502C)
v.
ANDREW HAMELYNCK,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Truc T. Do, Judge. Affirmed.
Law Offices of Natasha Roit and Natasha Roit for Appellant.
Bickford Blado & Botros and Andrew J. Botros for Respondent.
Erin Eun Yoon (Wife) and Andrew Hamelynck (Husband) entered into
a marital settlement agreement (MSA), which was incorporated into the
judgment of dissolution, that contains the following child support provision:
“Monthly child support is ordered at $2,177 per month . . . ,
payable by Husband to Wife, effective September 1,
2019. . . . As further child support, Husband shall also pay
7% of any bonuses . . . he receives incident to his
employment at [employer].”
The MSA has a similar spousal support provision with a 20 percent
bonus component.
Husband received bonuses of $103,700 in February 2019 and $48,500
in June 2019, but maintained they were not subject to the MSA’s support
provisions because he received them before the support provisions took
“effect[ ] September 1, 2019.” Wife requested that the family court construe
the effective date as applying only to the monthly base support and, thus, to
order that Husband pay a percentage of these bonuses as child and spousal
support. Focusing on the effective date and the parties’ use of the future
tense “receives” in the phrase “any bonuses . . . he receives,” the family court
ruled the provisions do not apply to bonuses Husband received before
September 1, 2019.
Wife appeals, seeking our de novo interpretation of the bonus
provisions. For reasons we will explain, we likewise conclude the MSA’s
support provisions do not apply to the February and June 2019 bonuses.
Accordingly, we affirm.1
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Separation and Settlement
Husband and Wife married in July 1997, and separated in July 2018
when Wife filed a petition for dissolution. They had one daughter (Daughter)
and one son (Son) during the marriage.
In November 2018, the court ordered Husband to pay guideline child
support of $3,542 per month ($1,328 for Daughter, $2,214 for Son), and
guideline spousal support of $3,959 per month. The court based its guideline
1 As we will explain in part III of this opinion, although we conclude
Wife’s appeal lacks merit, we do not believe it is dilatory or frivolous.
Accordingly, we deny Husband’s motion for sanctions.
2
calculations on Husband’s monthly income of $19,316, and Wife having no
monthly income.
In February 2019, Husband received a $103,700 bonus from his
employer (Employer). Husband disclosed this bonus to Wife on May 7 or
May 8.
On May 8, the parties successfully mediated disputes regarding child
and spousal support, and other dissolution issues. They documented their
settlement in an enforceable stipulation (Stipulation), which the parties
intended to replace with a formalized MSA.
The Stipulation addressed child support for Son (but not Daughter, who
had turned 18 a few months earlier), in pertinent part, as follows:
“Monthly Child Support shall be paid pursuant to
Exhibit E [showing guideline support of $2,177], effective
September 1, 2019. Husband shall also pay, as further
child support, 7 percent of any bonuses . . . he receives
incident to his employment with [Employer].”2
The Stipulation similarly addressed spousal support, in pertinent part,
as follows:
“Monthly Spousal Support shall be paid pursuant to
Exhibit E [showing guideline support of $3,470], rounded
up to $3,500, effective September 1, 2019. Husband shall
also pay, as further spousal support, 20 percent of any
bonuses . . . he receives incident to his employment with
[Employer].”
In June 2019, Husband received a $48,500 bonus from Employer. He
did not disclose it to Wife.
2 “Exhibit E” is a DissoMaster report the mediator prepared and
attached to the Stipulation. It was based on Husband having monthly
income of $19,901, and Wife having monthly income of $2,080.
3
The parties eventually formalized their settlement in the MSA, which
took effect on October 29, 2019.3 The MSA contains child and spousal
support provisions substantially similar to those in the Stipulation.
Regarding child support, paragraph 4.B. of the MSA states in pertinent
part:
“Monthly child support is ordered at $2,177.00 per month
for [Son], payable by Husband to Wife, effective September
1, 2019. (Calculated pursuant to Exhibit E) As further
child support, Husband shall also pay 7% of any
bonuses . . . he receives incident to his employment at
[Employer].”4
Regarding spousal support, paragraphs 5.A. and 5.B. of the MSA state
in pertinent part:
“A. Monthly spousal support is ordered at $3,500 per
month, payable from Husband to Wife, effective September
1, 2019. (Calculated pursuant to Exhibit E, rounded up by
agreement of the parties.)
3 The MSA provides that it is “effective as of the last-dated signature of a
party.” Wife signed the MSA on October 25, 2019; Husband signed it October
29, 2019.
4 Paragraph 4.B. of the MSA states in full: “Monthly child support is
ordered at $2,177.00 per month for [Son], payable by Husband to Wife,
effective September 1, 2019. (Calculated pursuant to Exhibit E) As further
child support, Husband shall also pay 7% of any bonuses and 7% of his
separate property interest in restricted stock units he receives incident to his
employment at [Employer]. This 7% does not apply to the community
property portion of any restricted stock units awarded to Husband. In the
event that any child support payment provided in this Agreement becomes
due and interest is accrued thereon at the legal rate, payment of such
interest shall be treated as additional child support and excluded from the
recipient’s taxable income. The Court reserves jurisdiction over child
support.” (Italics added.)
4
“B. As further spousal support, Husband shall also pay
20% of any bonuses . . . he receives incident to his
employment with [Employer].”5
On November 6, 2019, the family court entered a judgment of
dissolution incorporating and attaching the MSA.
B. Wife’s Initial Request to Modify Support
In December 2019 and January 2020, disputes arose between the
parties regarding their implementation of various MSA provisions. These
disputes did not include Husband’s nonpayment of support from the $103,700
bonus he received in February 2019 and disclosed in May 2019.
In February 2020, Wife filed a request for order (RFO) “increasing child
support based on changed circumstances not disclosed by [Husband] during
MSA negotiations and entry of Judgment.” Wife based the RFO on her
5 Paragraphs 5.A. and 5.B. of the MSA state in full:
“A. Monthly spousal support is ordered at $3,500 per month, payable
from Husband to Wife, effective September 1, 2019. (Calculated pursuant to
Exhibit E, rounded up by agreement of the parties.) Husband shall also keep
Wife on his health insurance until this divorce is final, and, thereafter, shall
cooperate with Wife, if requested, in obtaining alternative insurance,
including COBRA benefits. Husband shall have no financial obligations
required as part of this cooperation.
“B. As further spousal support, Husband shall also pay 20% of any
bonuses and 20% of his separate property interest in restricted stock units he
receives incident to his employment with [Employer]. This 20% does not apply
to the community property portion of any restricted stock units awarded to
Husband. The spousal support specified in this paragraph shall be payable
until the death of either party, remarriage of Wife, or further order of the
court to modify based on changed circumstances. Spousal support payable
herein shall be nonmodifiable for 3 years from the signing of the MSA,
provided Husband is employed by [Employer]. In the event [Employer] is
acquired by, merges with, or is taken over by a successor entity, Husband’s
responsibilities under this paragraph continue. The Court reserves
jurisdiction over spousal support.” (Italics added.)
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“belie[f] . . . that at the time of entering into the MSA, [Husband] had secured
a promotion in his employment with a significant increase in wages/bonuses,”
which “was not disclosed during the divorce proceedings or ever.” Wife also
requested that the court order Husband to produce documents regarding his
income and bonuses, and impose sanctions of $7,500.
About four months later, in June 2020, Wife’s counsel filed a
supplemental declaration clarifying that Wife was also requesting support
under the MSA’s child and spousal support provisions based on the $103,700
bonus that Husband received in February 2019 (which he disclosed in
mediation) and the $48,500 bonus he received in June 2019 (which Wife only
learned of by subpoenaing Employer’s records).
Husband opposed Wife’s RFO, explaining that although he had
technically received a promotion at work, it was really more of a lateral move
that resulted in a pretax raise of only $500 per month. Husband also
explained his view that the February and June 2019 bonuses were not
subject to the MSA’s support provisions because those provisions state they
are “effective September 1, 2019,” after he received the bonuses.
Husband gave notice that he intended to present live testimony at the
RFO hearing. Wife objected, arguing the facts were undisputed and the MSA
“speaks for itself.”
The court heard Wife’s RFO on June 22, 2020. When Wife did not
attend the hearing, the court indicated it was inclined to continue the matter
so Husband could cross-examine Wife, observing that “the dispute does not
seem as simple as [Wife’s counsel] might believe it is.” Wife’s counsel then
clarified that Wife was no longer “seeking child support based on changed
circumstances” regarding Husband’s employment situation; rather, she was
seeking only a percentage of Husband’s bonuses, “which are provided for in
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the [MSA] itself.” The court responded that it would only “address[ ] the
relief requested in the pleadings,” and Wife would therefore need to file an
amended RFO if she intended to pursue this new bonus claim.
The court continued the hearing for about one month, and granted Wife
leave to amend her RFO.
C. Wife’s Amended RFO to Enforce the MSA
As contemplated, Wife filed an amended RFO seeking “enforcement of”
the MSA’s child and spousal support provisions. Wife sought child support of
$10,654 and spousal support of $30,440 (7 percent and 20 percent,
respectively, of Husband’s $103,700 February 2019 bonus and $48,500 June
2019 bonus). Wife also sought interest on the unpaid support, and sanctions
of $7,500.
Wife argued Husband’s interpretation of the MSA as applying only to
bonuses received after September 1, 2019 was inconsistent with the MSA and
“illogical.” She denied she had “simply waived tens of thousands of dollars
from 2019 bonuses,” “[n]or could [she] have waived child support as a matter
of policy.”
Husband opposed Wife’s amended RFO, reiterating his view that the
MSA’s support obligations did not take effect until September 1, 2019 (after
he received both bonuses). He clarified he was not asserting a waiver theory;
rather, he simply maintained the MSA recognized the bonuses were his
“separate property earnings.”
Husband also asserted he “made multiple concessions during mediation
upon the assumption that [his] bonuses until September 1, 2019 were [his]
separate property.” For example, he (1) allowed Wife to receive the $43,500
value of his half of a life insurance policy; (2) agreed he would use his half of
the proceeds from the sale of the marital residence to contribute $59,011.18
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to Daughter’s college savings fund and $86,446.87 to Son’s college savings
fund; and (3) agreed Wife’s share of his retirement accounts would be valued
as of the date of the mediation, with Wife benefiting from any subsequent
appreciation, while being insulated against any subsequent depreciation.
In reply, Wife argued Husband’s interpretation of the MSA failed to
account for the fact the support provisions state they apply to “any bonuses”
(italics added), not to those earned after September 1, 2019. She also argued
that regardless of what Husband called it, he was in fact asserting a waiver
theory, which Wife denied she intended.
D. Court’s Ruling
The court heard Wife’s amended RFO on July 23, 2020, and took the
matter under submission. Later that day, the court issued its findings and
order after hearing.6
The court denied Wife’s amended RFO to enforce the MSA’s support
provisions, with the following reasoning:
“The plain language of the MSA—both the effective date of
September 1, 2019 and the future tense of the word
‘receives’ in both [the child and spousal support]
paragraphs[—]make clear that Husband is not required to
pay support on bonuses he received in February and June
of 2019. The . . . provisions are prospective, not retroactive,
by the parties’ agreement.”
II. DISCUSSION
Wife contends the family court erred by construing the MSA’s support
provisions as applying only to bonuses Husband received beginning
September 1, 2019. We disagree.
6 The court later amended its ruling, nunc pro tunc to July 23, to correct
a misstatement regarding procedural history not at issue here.
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A. Interpretation Principles
“ ‘Marital settlement agreements incorporated into a dissolution
judgment are construed under the statutory rules governing the
interpretations of contracts generally.’ ” (In re Marriage of Simundza (2004)
121 Cal.App.4th 1513, 1518 (Simundza).)
“We interpret a contract to give effect to the mutual intention of the
parties at the time they formed the contract. [Citations.] We discern the
parties’ intention based on the written contract alone, if possible, but may
also consider the circumstances under which the contract was made and its
subject matter. [Citations.] We consider the contract as a whole, and
interpret contested provisions in their context, not in isolation, with the aim
of giving effect to all provisions, if doing so is reasonably possible.
[Citations.] [¶] In interpreting a contract, we give the words their ordinary
and popular meaning, unless the parties or usage have given the words a
specialized or technical meaning. [Citations.]” (Camacho v. Target Corp.
(2018) 24 Cal.App.5th 291, 306; see Simundza, supra, 121 Cal.App.4th at
p. 1518.)
“When, as here, no conflicting extrinsic evidence is offered of an
interpretation as to which the language of a marital settlement agreement is
reasonably susceptible, and the facts are otherwise undisputed, we apply the
unambiguous contract terms to the undisputed facts as a matter of law.” (In
re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439; see In re Marriage of
Rosenfeld & Gross (2014) 225 Cal.App.4th 478, 488 [“because no extrinsic
evidence was considered, we are not bound by the trial court’s construction
and interpret the terms of the MSA de novo”].)
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B. Analysis
Husband and Wife agree the family court did not consider any extrinsic
evidence in construing the MSA and, therefore, our review is de novo.
Applying this standard, we conclude the MSA’s child and spousal support
provisions apply only to bonuses Husband received beginning September 1,
2019.
The MSA’s child and spousal support provisions start by specifying an
amount of monthly support that Husband must pay to Wife “effective
September 1, 2019.” Each provision also states that Husband must pay, “[a]s
further . . . support,” a specified percentage “of any bonuses . . . he receives”
from Employer. When read together, the September 1, 2019 effective date,
use of the term “further . . . support” (italics added), and use of the future
tense “bonuses he . . . receives” (italics added) strongly suggest the parties
intended that the MSA’s support provisions apply only prospectively to
Husband’s bonuses beginning September 1, 2019.
The parties’ use of the future tense “receives” is of greater import in
light of the undisputed fact that Wife knew when she signed the MSA (as
well as the substantially similar Stipulation) that Husband had already
received—past tense—a $103,700 bonus. Indeed, Wife knew about this bonus
for more than a year before first asserting it was subject to the MSA’s support
provisions.7 This suggests Wife understood and intended that the MSA
7 Specifically, Wife acknowledges Husband disclosed the $103,700 bonus
in May 2019, yet the appellate record shows she did not argue it was subject
to the MSA’s support provisions until July 2020, when her counsel submitted
a supplemental declaration in support of Wife’s first RFO.
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would not apply to bonuses Husband received before September 1, 2019.8
(See Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441,
1449 [“the conduct of the parties after the execution of the contract, and
before any controversy arose, may be considered in order to attempt to
ascertain the parties’ intention”].)
Wife asserts that the fact each bonus provision appears in a separate
sentence than the September 1, 2019 effective date—and, indeed, that the
spousal support bonus provision appears in a separate paragraph—reflects
the parties’ intent that the effective date not apply to the bonus provisions.
We are not persuaded. First, each bonus provision begins by referring to the
bonus-based support as “further . . . support” (italics added), thereby
suggesting the parties intended that the base and bonus support provisions
be read together. Second, Wife’s interpretation fails to account for the bonus
provisions’ use of the future tense “receives.” Finally, other parts of the
spousal support provision indicate the parties intended that both paragraphs
be construed together.9
8 While Wife makes much of the fact that Husband admittedly did not
disclose the June 2019 $48,500 bonus, his nondisclosure was not the basis for
relief in her amended RFO; rather, the nondisclosure was relevant only as an
interpretive aid in construing the MSA. In that respect, we are satisfied that
the prospect of obtaining percentages of a $103,700 bonus provided Wife
sufficient incentive to assert a claim under her interpretation of the MSA
without the additional incentive of obtaining percentages of a $48,500 bonus.
9 For example, the spousal support paragraph with the bonus provision
(paragraph 5.B.) also states that “[t]he spousal support specified in this
paragraph shall be payable until the death of either party, remarriage of
Wife, or further order of the court . . . .” (Italics added.) The parties almost
certainly intended that this provision also apply to the paragraph with the
monthly support provision (5.A.), thus indicting they intended the monthly
and bonus support provisions—including the effective date—be read together.
11
Wife also contends the bonus provisions’ use of the word “any” in the
phrase “any bonuses . . . [Husband] receives incident to his employment at
[Employer]” (italics added) indicates the parties intended that the bonus
provisions apply regardless of when Husband receives a bonus. But in light
of the other language suggesting the bonus provisions apply only
prospectively, we conclude the parties intended “any” to refer to the type of
bonus, not its timing.
Apart from the MSA’s express language, Wife argues that interpreting
the bonus provisions as allowing Husband to exclude certain bonus income
from his support obligations constitutes, “in essence,” a waiver of child
support that “may not be waived as a matter of public policy.” (Bolding and
capitalization omitted.) We disagree. The MSA expressly provides for
monthly child support of $2,177, plus 7 percent of bonuses Husband receives
beginning September 1, 2019. This is not a waiver of child support.
Instead, this construction of the MSA would render it, at most, an
agreement allowing Husband to provide below-guideline child support.
Family Code section 4065 expressly allows such agreements, provided the
parties declare that certain criteria are met. (See Fam. Code, § 4065, subd.
(a).)10 The MSA contains party declarations that mirror nearly verbatim
10 Family Code section 4065, subdivision (a) states: “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.”
12
those required by statute.11
More generally, Husband showed he agreed to terms that favored Wife
and Son—including contributing $86,446.87 to Son’s college savings fund
from Husband’s share of the proceeds from the sale of the marital residence—
based on the understanding his February and June 2019 bonuses were not
subject to the MSA’s bonus provisions. Additionally, until the MSA’s support
provisions took effect on September 1, 2019, Husband remained under court
order to pay monthly child support of $3,542, which included $1,328 for
Daughter, even though she turned 18 in February 2019 and presumably
graduated from high school around June 2019 (the record shows she was
attending college the next academic year).
In sum, the bonuses Husband received from Employer in February and
June 2019 were not subject to the MSA’s bonus provisions, which the parties
intended would become “effective September 1, 2019.” Accordingly, the
family court properly denied Wife’s amended RFO.
III. HUSBAND’S MOTION FOR SANCTIONS
Husband moves for an award of $10,000 in sanctions against Wife and
her appellate counsel for filing a dilatory and frivolous appeal.
An appellate court may award sanctions “[w]hen it appears . . . that the
appeal was frivolous or taken solely for delay.” (Code Civ. Proc., § 907; see In
re Marriage of Flaherty (1982) 31 Cal.3d 637, 646 (Flaherty); In re Marriage
11 Paragraph 4 of the MSA states: “A. The parties have been fully
informed of their rights concerning child support, including without
limitation, the rights set forth in California Statewide Uniform Child Support
Guidelines. [¶] . . . [¶] F. The order is being agreed to without coercion or
duress. This agreement is in the best interest of the minor child and his
needs will be adequately met by this stipulation. [¶] G. The right to child
support has not been assigned to the county pursuant to §11477 of the
Welfare and Institution Code and no public assistance is pending.”
13
of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.) An appeal is “frivolous
only when it is prosecuted for an improper motive—to harass the respondent
or delay the effect of an adverse judgment—or when it indisputably has no
merit—when any reasonable attorney would agree that the appeal is totally
and completely without merit.” (Flaherty, at p. 650.) “The first standard is
tested subjectively. The focus is on the good faith of appellant and counsel.
The second is tested objectively. [Citation.] ‘While each of the above
standards provides independent authority for a sanctions award, in practice
the two standards usually are used together “with one providing evidence of
the other.” ’ ” (Gong & Kwong, at p. 516.)
Applying these standards, although we ultimately conclude Wife’s
appeal lacks merit, we do not believe, nor do we believe “any reasonable
attorney would agree that the appeal is totally and completely without merit.”
(Flaherty, supra, 31 Cal.3d at p. 650, italics added.) Nor does it appear from
the fact that Wife was the party seeking a monetary recovery that she
brought this appeal “solely for delay.” (Code Civ. Proc., § 907.) Accordingly,
we deny Husband’s motion for sanctions.
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IV. DISPOSITION
The order is affirmed. Wife to pay Husband’s costs on appeal.
Husband’s motion for sanctions is denied.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
GUERRERO, J.
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