Welch v. Welch ( 2022 )

Filed 5/31/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
BRENDON WELCH et al., B311507
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. ND075582
v. & 18STPB10412)
FREEMAN H. WELCH,
Individually and as Trustee, etc.,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Ana Maria Luna, Judge. Reversed and remanded.
FEM Law Group and F. Edie Mermelstein for Plaintiffs
and Appellants.
California Appellate Law Group, Charles M. Kagay and
Claudia Ribet; Velasco Law Group, Peter Ali Sahin and Sindee
M. Smolowitz for Defendant and Respondent.
__________________________________
Appellants Brendon Welch (Brendon) and Jeanne Donohoe
(Jeanne) appeal the probate court’s January 14, 2021 orders: (1)
1
denying Brendon’s Petition for Recovery of Property under
Probate Code section 8501 and sustaining objections thereto by
respondent Freeman H. Welch (Freeman); and (2) denying
Brendon’s Petition for Letters of Administration and granting
Freeman’s Petition for Probate of Will.
At issue is whether a mediation settlement agreement that
Freeman and his now-deceased wife Patricia Ann Welch
(Patricia) entered into after separation and in anticipation of
dissolution of their marriage is a “complete property settlement”
within the meaning of section 145, which operates as a statutory
waiver of certain of Freeman’s rights as a surviving spouse
enumerated in section 141, including the right to inherit from
Patricia and to be appointed as the personal representative of her
estate.2 We reverse the probate court’s orders and remand the
matter for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND3
The Family Court Action
In September 2015, after 36 years of marriage, Freeman
and Patricia separated. Freeman filed a petition for dissolution
1 Allfurther statutory references are to the Probate Code
unless otherwise indicated.
2 Brendon is one of Patricia and Freeman’s two adult sons.
Jeanne is Patricia’s sister and the successor trustee and alternate
executor named in Patricia’s estate planning documents.
3 Wetake judicial notice of the appellate record in Case No.
B295880, and our prior unpublished opinion in Welch v. Welch
2
of marriage, and requested that the court make a determination
of rights to the couple’s community and quasi-community
property, which he listed in an attachment to the petition.
Patricia filed a response, also requesting dissolution of the
marriage and division of their property, as well as an award of
spousal support payable to her from Freeman. In November
2016, Freeman and Patricia each verified that they had served a
Preliminary Declaration of Disclosure.
In October 2017, the parties participated in mediation and
executed a five-page, predominantly handwritten settlement
agreement (MSA), dividing the couple’s property and addressing
other financial issues, including spousal support. The MSA was
dated October 6, 2017, and it was signed by both parties and
their respective attorneys. It included the following provisions
for division of their property:
Property Division
Petitioner shall receive the following items subject to
equalization:
1. Book of Wells Fargo business at a value of $995,700
subject to equalization
2. 1/2 of current IRA at Wells Fargo Advisors XXX5235
with a current value of $62,657 (all account amounts subject to
confirmation)
3. 1/2 of DoS value of Farmers acct XX8131 valued at
$26,859
(Jun. 3, 2020, B295880), from which portions of the facts and
procedural history are taken.
3
4. 1/2 of Pet’s Deferred Comp Plan with current value of
$7,858
5. Pet’s S.P. and C.P. portion of his 401K Plan per QDRO[4]
to be prepared by Nancy Bunn, Atty, using DOS of 9/29/2015
6. Marriott timeshare XX5190 at value of $2,750
7. Mercedes SLK 320 at value of $3,324
8. Household items attached hereto at 0 value.
Respondent shall receive the following items:
1. 6333 E. Colorado Street, Long Beach, CA with est FMV
net $854,530.
2. 1/2 of items # 2-4 inclusive set forth above in Petitioner’s
items
3. Respondent’s C.P. share of Pet’s 401K to be divided by
QDRO by Nancy Bunn, Atty, using DOS of 9/29/2015.
4. Marriott timeshare XX8041 at 0 value (Resp’s SP)
5. Mercedes GL450 at value of $10,686.
6. Equalization payment in an amount to be determined
after running Propertizer[5]
7. All furniture, furnishings and personal property in her
possession except for items on Pet’s list
Parties shall sell Kona Coast timeshare and equally divide
net proceeds.
4 QDRO is an acronym for “qualified domestic relations
order.”
5 “Propertizer”
is commercial software that divides
community assets and debts.
4
Respondent reserves the right to review and verify the
documents and amounts to each party as the result of the
November 2015 splitting of accounts (Wells Fargo) #8858, 5961,
5185 now held by petitioner and respondent in Wells Fargo
Accounts #4655 and 2472.
Nancy Bunn, as QDRO attorney, shall be instructed to tax
impact division of QDRO regarding the equalization payment to
be paid by Petitioner to Respondent from his SP and CP portion
of the account.
Parties will prepare a Propertizer using the above
referenced dates to determine the precise Amount of the
equalization payment. (Sept 29, 2015 DOS)
Parties will prepare a formal Jdgmnt for submission to
David Weinberg, Commissioner (ret.) who shall serve as the
judicial officer regarding all issues arising from this settlemt;
entry of Jdmt and post-Judgment matters.
All other credits and reimbursements waived.
HOUSEHOLD AND GARAGE ITEMS
Entire garage office contents
Tools-Parts-Cables-Hardware, etc.
Workbench with all contents including shelves of Coke
crates
All neon signs, art, license plates, banners and
miscellaneous decorations, etc. in garage
Monitor audio speakers
SAE speaker switch
Yamaha turntable (in box above office)
5
Photographs and videotapes (I was cameraman on all.
Happy to share cost of making copies of whatever Patsy
wants.)
Sand bottles and rack
Trunk with electric trains
Jax beer opener
Safe contents that belong to or are related to Petitioner
One-half silver coins (located in kitchen cabinet)
The MSA stated: “We have read the entire stipulation and
agreement. We understand it fully and request the court to make
our stipulation and agreement the Court’s order. . . . We waive all
further notice of this order.”
In November 2017, Freeman drafted a proposed formal
judgment and sent it to Patricia. The judgment provided for the
dissolution case to proceed as an uncontested matter. In January
2018, Patricia informed Freeman that she did not agree with the
draft judgment and itemized numerous objections to its
provisions in a letter from counsel.
On January 19, 2018, Freeman filed a request for order to
enforce the settlement and enter judgment pursuant to Code of
Civil Procedure section 664.6. The motion attached both the
MSA and Freeman’s proposed judgment.
On March 6, 2018, Patricia filed an opposition to the
motion to enforce the MSA and to enter judgment, arguing that,
pursuant to the MSA, any dispute between the parties regarding
the terms of their settlement or entry of judgment must be
brought before the mediator, not the trial court; the court had no
authority to enter Freeman’s proposed judgment because the
MSA required preparation of an agreed-upon formal judgment;
6
Freeman’s proposed judgment contained additional material
terms that were not included in the mediation agreement, and
were contrary to it; and the procedure for Patricia to object to the
draft judgment’s provisions necessarily depended on whether the
trial court or the mediator would resolve those disputes. Patricia
requested that the court deny Freeman’s request to enforce the
settlement terms in the MSA and deny entry of judgment
thereon. Patricia also requested that the court enforce the
provision in the MSA for resolution of disputes, by ordering the
parties back to the mediator to resolve any disputes about the
settlement terms.
On March 14, 2018, Freeman filed a reply, arguing there
was no need for additional mediation because the proposed
judgment faithfully reflected the mediation agreement.
On March 19, 2018, the parties appeared for the hearing on
Freeman’s motion. The hearing on the motion to enforce
settlement and enter judgment was continued to June 25, 2018.
The court set a trial setting conference for the same day.
On May 21, 2018, Freeman filed a declaration of his
counsel in support of the pending motion for entry of judgment.
In the declaration, Freeman’s counsel noted: “This is a dispute
about (1) who has the authority to resolve this Motion for Entry
of Judgment and (2) a dispute about the contents of the
Judgment. [Freeman] contends this Court has the authority to
resolve the dispute and enter the Judgment filed concurrently
herewith and that this Judgment is consistent with the terms of
the parties’ written agreement dated October 6, 201[7]. [Patricia]
disagrees and/or has refused to respond.”
With the declaration of counsel, Freeman lodged a second
proposed judgment. Counsel stated in the declaration that
7
Freeman had “agreed to adopt nearly all of [Patricia’s] changes to
Judgment #1” and the second proposed judgment was “the
mirror-image of the parties’ agreement [reached in mediation].”
Freeman’s counsel further stated that counsel had personally
delivered a copy of the second proposed judgment to Patricia’s
attorney, along with Freeman’s final declaration of disclosure,
and a waiver of Patricia’s final declaration of disclosure.
Freeman asked the court to enter the second proposed judgment
at the hearing pursuant to Code of Civil Procedure 664.6 and Los
Angeles County Local Rule 5.16.
Patricia did not respond to Freeman’s counsel’s declaration.
On June 16, 2018, Patricia died. Neither the hearing on the
motion nor the trial setting conference occurred on June 25, 2018.
On July 6, 2018, the trial court signed and filed the second
proposed judgment dissolving the parties’ marriage and
distributing their property.
On August 6, 2018, counsel for both parties appeared in
court. Patricia’s counsel informed the court that her client had
died. Freeman’s counsel stated his client’s position that the case
was dismissed by operation of law. Neither party’s counsel nor
the court raised the existence of the judgment signed by the court
the prior month. The court dismissed the case without objection
from either party.
On October 22, 2018, Freeman moved to set aside the
judgment signed in July under Code of Civil Procedure section
473 and Family Code section 2105. Brendon, acting as the
proposed administrator of Patricia’s estate and represented by
his own counsel, opposed the motion.
On December 17, 2018, the court filed a notice of ruling and
order on the motion to vacate judgment, which included its
8
findings that Freeman’s Motion to Enter Judgment under Code of
Civil Procedure 664.6 was never submitted for decision, Patricia
died on June 16, 2018, the Court erroneously signed Freeman’s
proposed Judgment submitted in conjunction with the Motion to
Enter Judgment on July 6, 2018 unaware of Patricia’s death.
The court ruled that the Judgment entered on July 6, 2018, was
void, vacated, and set aside.
Brendon appealed. On June 3, 2020, this Court issued an
opinion affirming the family court’s order setting aside the
dissolution judgment. We concluded that the matter had not
been submitted to the family court prior to Patricia’s death and,
as a result, the family court lacked jurisdiction to enter the
judgment.
The Probate Court Action
On November 8, 2018, Brendon filed a Petition for Letters
of Administration. He was appointed Special Administrator of
Patricia’s estate on February 11, 2019.
On April 2, 2019, Brendon filed a Section 850 Petition for
(1) Recovery of Property Wrongfully Held By Trust And
Assessment of Double Damages; (2) Declaration of Heirship; (3)
Constructive Trust; (4) Accounting; and (5) Quiet Title. On
January 13, 2021, Brendon filed a Verified Supplement to
Section 850 Petition seeking a declaration of heirship under
sections 141 and 145, nominating Jeanne to be the executor over
Patricia’s estate and successor trustee over Patricia’s assets held
in trust pursuant to section 141.
On May 23, 2019, Freeman opposed Brendon’s Petition for
Letters of Administration and filed a Petition for Probate of
9
Patricia’s pour over will.
On June 17, 2019, Freeman objected to Brendon’s Section
850 Petition.
On June 24, 2019, the court continued the probate action
pending this court’s decision in the family law appeal. As stated
above, we issued our opinion on June 3, 2020.
On January 14, 2021, the above petitions came on for
hearing before the probate court.
The court granted Freeman’s Petition for Probate of Will
filed on May 23, 2019 and admitted a pour-over will dated May
22, 1996. The court over-ruled all objections to the petition and
found that Freeman was a surviving spouse within the meaning
of section 78, subdivision (b).
The court denied Brendon’s Probate Petition, filed on
November 8, 2018, and sustained the objections filed by Freeman
on April 17, 2019.
The court denied Brendon’s Section 850 Petition for
Recovery of Property filed April 2, 2019, and it sustained the
objections filed by Freeman on June 17, 2019. The court found
that Freeman was a surviving spouse within the meaning of
section 78, subdivision (b), and did not waive his right to inherit
under sections 141 and 145. The court also found that “‘this
Petition seeks to accomplish in the probate court that which
could not be accomplished in the Family Law court.’” At the
hearing, the court found that the MSA was not a complete
property settlement within the meaning of section 145. This is
reflected in the minute order, but not the Notice of Entry of
Judgment.
10
DISCUSSION
The parties do not contest that Freeman is a surviving
spouse under section 78, subdivision (b). The issue before us is
whether, by entering the MSA, Freeman waived the rights of a
surviving spouse enumerated in section 141, subdivision (a). We
hold that the MSA did effect a waiver of those rights. As
explained below, based on our independent review of the MSA
and the undisputed record evidence, the written MSA signed by
Freeman and Patricia, each with the advice of counsel,
constituted a “complete property settlement” within the meaning
of section 145. Further, the MSA is an enforceable waiver of his
rights as a surviving spouse, as Freeman fails to point to any
evidence he was not provided with “[a] fair and reasonable
disclosure of the property or financial obligations” of Patricia,
prior to signing the MSA, as required by section 143, subdivision
(a).
Standard of Review
We resolve matters of statutory interpretation de novo.
(People v. United States Fire Ins. Co. (2012) 210 Cal.App.4th
1423, 1426.) “‘The general principles that guide interpretation of
a statutory scheme are well[ ]settled. [Citation.] “Our function is
to ascertain the intent of the Legislature so as to effectuate the
purpose of the law. [Citation.] To ascertain such intent, courts
turn first to the words of the statute itself [citation], and seek to
give the words employed by the Legislature their usual and
ordinary meaning. [Citation.] When interpreting statutory
language, we may neither insert language which has been
11
omitted nor ignore language which has been inserted. [Citation.]
The language must be construed in the context of the statutory
framework as a whole, keeping in mind the policies and purposes
of the statute [citation], and where possible the language should
be read so as to conform to the spirit of the enactment.
[Citation.]”’ [Citation.]” (Jaime Zepeda Labor Contracting, Inc.
v. Department of Industrial Relations (2021) 67 Cal.App.5th 891,
905.)
“Marital property settlement agreements are favored under
California law [citation], and governed by general contract
principles [citation].” (Safarian v. Govgassian (2020) 47
Cal.App.5th 1053, 1063, fn. omitted.) A settlement “‘“must be so
interpreted as to give effect to the mutual intention of the parties
as it existed at the time of contracting, so far as the same is
ascertainable and lawful.” (Civ. Code, § 1636; [citation].) The
intention of the parties must be first determined from the
language of the contract itself. (Civ. Code, § 1638; [citation].)
However, where the language of the contract is ambiguous, it is
the duty of the court to resolve the ambiguity by taking into
account all the facts, circumstances and conditions surrounding
the execution of the contract. (Civ. Code, § 1647; [citation].)’”
(Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1252 (Chacon).)
The standard of review when construing a contract is de
novo, “including where conflicting inferences may be drawn from
undisputed extrinsic evidence, ‘unless the interpretation turns
upon the credibility of extrinsic evidence.’ [Citations.] Put
simply, ‘“when the competent extrinsic evidence is not in conflict,
the appellate court independently construes the contract.’
[Citation.]” (Hewlett-Packard Co. v. Oracle Corp. (2021) 65
Cal.App.5th 506, 531.)
12
Surviving Spouse’s Waiver of Rights Under the Probate
Code
Sections 140 through 147 comprise the Surviving Spouse’s
Waiver of Rights, and are codified as Chapter 1 of Division 2,
Part 3 of the Probate Code. Section 145, entitled “Waiver of ‘all
rights,’” is “directed at two types of situations: (1) where the
parties do not intend an agreement to be merged into a
dissolution judgment; and (2) where one party dies after both
have executed a marital settlement agreement but before the
court has heard the matter for the purpose of rendering a
judgment incorporating the agreement.” (Estate of Gibson (1990)
219 Cal.App.3d 1486, 1492 (Estate of Gibson).)
Section 145 provides that “a complete property settlement
entered into after or in anticipation of separation or dissolution
or annulment of marriage, is a waiver by the spouse of the rights
described in subdivision (a) of Section 141”, unless the property
settlement provides to the contrary. The surviving spouse’s right
to inherit and right to be appointed as the personal
representative of the deceased spouse’s estate that are at issue in
this case are among the enumerated rights waived under section
141.6 (§ 141, subd. (a).)
6 Section 141, subdivision (a) states:
“The right of a surviving spouse to any of the following may
be waived in whole or in part by a waiver under this chapter:
“(1) Property that would pass from the decedent by
intestate succession.
“(2) Property that would pass from the decedent by
testamentary disposition in a will executed before the waiver.
“(3) A probate homestead.
13
Under section 142, a waiver of a surviving spouse’s rights
under the Probate Code must be (1) in writing, (2) signed by the
surviving spouse, and (3) enforceable under either section 143 or
144. (§ 142, subds. (a) & (b).)
Pursuant to section 143, subdivision (a), a waiver is
enforceable unless the surviving spouse can demonstrate “(1) A
fair and reasonable disclosure of the property or financial
obligations of the decedent was not provided to the surviving
spouse prior to the signing of the waiver unless the surviving
spouse waived such a fair and reasonable disclosure after advice
by independent legal counsel” or “(2) The surviving spouse was
not represented by independent legal counsel at the time of
signing of the waiver.” As relevant here, section 142 provides,
“[e]nforcement of the waiver against the surviving spouse is
subject to the same defenses as enforcement of a contract, except
that. . . [] [l]ack of consideration is not a defense to enforcement of
the waiver.” (§ 142, subd. (c).)
“(4) The right to have exempt property set aside.
“(5) Family allowance.
“(6) The right to have an estate set aside under Chapter 6
(commencing with Section 6600) of Part 3 of Division 6.
“(7) The right to elect to take community or quasi-
community property against the decedent’s will.
“(8) The right to take the statutory share of an omitted
spouse.
“(9) The right to be appointed as the personal
representative of the decedent’s estate.
“(10) An interest in property that is the subject of a
nonprobate transfer on death under Part 1 (commencing with
Section 5000) of Division 5.”
14
Alternatively, a waiver is enforceable pursuant to section
144, subdivision (a), if a court determines either: “(1) The waiver
at the time of signing made a fair and reasonable disposition of
the rights of the surviving spouse”; or “(2) The surviving spouse
had, or reasonably should have had, an adequate knowledge of
the property and financial obligations of the decedent[.]”7
The MSA Is a Complete Property Settlement Within the
Meaning of Probate Code Section 145
Freeman contends that the MSA is not a “complete”
property settlement because “[a] complete property agreement
must identify itself as such,” and the MSA does not expressly
state that it is a complete property settlement. Freeman’s
construction of section 145 is contrary to the statutory language.
Section 145 sets forth two distinct mechanisms for a spouse to
waive the rights of a surviving spouse: (1) by making an express
statement waiving “‘all rights’ (or equivalent language) in the
property or estate of [the other spouse]”; or (2) by “a complete
property settlement entered into after or in anticipation of
separation or dissolution or annulment of marriage.” It is
significant that the first mechanism—what we refer to as an
express waiver—requires specific language; however, the second
mechanism—what we refer to as a statutory waiver—is effected
7 Section 144 includes an exception to enforceability of a
waiver if the decedent spouse violated his or her fiduciary duties
as specified in Family Code section 721, subdivision (b), or if a
probate court finds enforcement of the waiver would be
unconscionable. These exceptions are not argued or presented
here, and we omit further discussion of them.
15
by entry into a property settlement, with no direction in section
145 that any express language must be used by the parties.
Here, we are presented only with this second mechanism, and we
decline to read into the statute a requirement for parties to use
any specific language when making a complete property
settlement.
In the absence of support in the language of section 145,
Freeman cites to Miller v. Miller (1949) 94 Cal.App.2d 785(Miller), in which the Court of Appeal held that the decedent’s
former wife did not waive her interest as a beneficiary under the
decedent’s life insurance policies pursuant to a property
settlement agreement that the couple entered into prior to
divorce. Freeman represents that Miller held the property
settlement was incomplete because the property settlement did
not state that all of the couple’s property had been included in the
agreement. (Id. at 790.)
We note that Miller, a case decided over seventy years
ago, did not involve interpreting the language of the Probate
Code provision at issue here, which was added to the code in the
early 1980’s. (Estate of Gibson, supra, 219 Cal.App.3d at p.
1491.) Even looking to Miller for guidance, however, it is clear
that the determination of whether an agreement is a complete
resolution of property issues between spouses who are separating
requires consideration of the totality of the circumstances; the
determination does not turn solely on whether the parties’
agreement includes an express statement that it is “complete.”
In Miller, a husband and wife entered a written agreement
dividing specified property between them. The agreement
included a provision stating that each spouse waived certain
rights against the other arising from the marriage, including any
16
right to inherit from, or administer the estate of the other.
(Miller, supra, 94 Cal.App.2d at pp. 786–787.) After the filing of
a divorce action and issuance of an interlocutory decree, the
husband died. The wife then sought to collect on four insurance
policies, two that named her as the designated beneficiary and
two that provided for inheritance by a widow; the husband’s
siblings contested the wife’s status as a beneficiary, contending
the property agreement the wife and husband had entered
constituted a waiver of the wife’s rights to inherit under the
insurance policies.8 The Miller court concluded that the wife was
entitled to collect on the insurance policies. In reaching its
decision, the court noted that the agreement made no mention of
the insurance policies, and no waiver of any interest in any
property not mentioned. But the absence of language covering all
potential property was not alone conclusive. The court also
8 At the time of Miller, divorce proceedings in California
involved first issuing an interlocutory judgment declaring that an
innocent spouse was entitled to dissolution, but the marriage was
not dissolved until entry of a final judgment. (See In re Marriage
of Goldberg (1994) 22 Cal.App.4th 265, 273.) The death of a
party spouse after interlocutory judgment but before final
judgment abated a divorce action as to the status of the parties,
but did not as to any division of property in the interlocutory
degree. (Id. at p. 274; McClenny v. Superior Court (1964) 62
Cal.2d 140, 144 [“The death destroys the cause of action for the
dissolution of the marriage; it does not liquidate the property
rights which crystallized in the interlocutory decree”]; Klebora v.
Klebora (1931) 118 Cal.App. 613, 618.) As a result, in Miller, the
property agreement entered into between the spouses survived
the husband’s death, but the wife nevertheless qualified as a
widow, because the husband’s death, and not the interlocutory
decree of divorce, terminated their marriage.
17
looked at the nature of the omitted property and the husband’s
conduct: insurance policies create only an expectancy interest for
the beneficiary, which can be changed. The court found that “the
failure of the husband to exercise his power to change the
beneficiary ordinarily indicates that he did not wish to effect such
a change.” (Id. at p. 790.) In addition, the court looked at other
extrinsic evidence of the parties’ intent: shortly prior to his death,
“the husband handed the policies to the [wife] saying, ‘Here is
some papers that belong to you.’ Two days later, in the presence
to two other witnesses, she offered to return the policies to him
and he refused to take them, saying that they belonged to her.”
(Id. at p. 791.)
In sum, Miller does not stand for the proposition that a
property settlement must state on its face that it is intended to be
a complete property settlement if it is to be treated as such. To
the contrary, Miller teaches that where such a clear expression of
intent is not contained in the language of the agreement, the
court looks to other evidence, including other language in the
agreement, the nature of the property at issue, and the actions of
the parties, to determine whether the settlement was intended to
be complete.
Here, the fact that the property settlement does not
expressly identify itself as either “partial” or “complete” does not
compel the conclusion that the settlement was intended to be
only partial. (See Series AGI West Linn of Appian Group
Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 164; see
also Levi Strauss & Co. v. Aetna Casualty & Surety Co. (1986)
184 Cal.App.3d 1479, 1486 [“The court . . . cannot insert in the
contract language which one of the parties now wishes were
there”].)
18
Absent a clear expression of intent in the language of the
agreement, we look to other evidence to discern the parties’
intent. (Chacon, supra, 181 Cal.App.4th at p. 1252.) The parties’
actions and surrounding circumstances demonstrate that Patricia
and Freeman considered the MSA to be a complete property
settlement. Freeman’s Petition for Dissolution and Patricia’s
response thereto both requested that the family court divide their
community and quasi-community property. Freeman listed this
property in an attachment to the petition. The same list is set
forth in more detail in the MSA, and, as Brendon points out,
allocates very specific items of personal property, including the
contents of the couple’s garage. The MSA additionally contains a
“catch-all” provision for items of personal property that are not
specifically identified—all items of personal property that were in
Patricia’s possession (Patricia lived in the marital home) were
awarded to her. The MSA states that all other credits and
reimbursements are waived. Finally, the MSA contains a
provision requesting that the family court make the MSA its
order, which is consistent with the couple’s requests in the
dissolution petition and response that the court divide their
community and quasi-community property. In short, nothing in
the parties’ actions or the language of the MSA indicates that it
was intended to be a partial settlement; the evidence fully
supports that the MSA was intended to be a complete property
settlement.
Nothing that occurred after the MSA was executed
suggests the parties did not have a meeting of the minds
regarding whether the property settlement was complete.
Although Freeman now makes much of Patricia’s objections to his
proposed judgment during the family court proceedings,
19
Patricia’s objections were to a draft judgment, not the division of
property set forth in the MSA.9 Patricia did not view the
proposed judgment as faithful to the parties’ agreement, and to
the extent that disputes over the terms of the judgment could be
seen as implicating the terms of the MSA, she requested that the
mediator resolve those issues—as the MSA provided—prior to
judgment. She did not argue that the MSA’s division of property
was incomplete or void—she argued that the version of the
judgment drafted by Freeman’s counsel should not be enforced
because there were disputes regarding judgment provisions and
the meaning of the MSA’s terms that the mediator had to first
resolve before the court could enter a judgment of dissolution.
For his part, Freeman expressed no concerns regarding the
completeness of the MSA. Rather, he submitted a second
proposed judgment, which he said was “‘the mirror-image of the
parties’ agreement . . . .’” (Welch v. Welch (June 3, 2020,
B295880) [nonpub. opn.].) He then sought entry of the judgment
9 We note that the probate court’s “finding” that there was
not a complete property settlement appears to have been based
on a misunderstanding of our prior opinion: at the hearing, the
court concluded that the various disputes of the parties over
entry of judgment in the dissolution action, and highlighted in
our prior opinion, meant there was no meeting of the minds when
the parties entered the MSA. The probate court’s analysis
confuses the MSA with the draft judgment. Moreover, there is no
substantial evidence in the record that would support a finding
that the parties did not have a meeting of the minds when
entering the MSA.
20
of dissolution pursuant to the terms of the MSA under Code of
Civil Procedure 664.6.10
Freeman next argues that the MSA was not a complete
property settlement because it left certain terms to be
determined in the future and omitted some property from
allocation. With respect to his argument that some terms were
left undetermined, Freeman asserts that the balances of financial
accounts that were identified in the MSA for division were
subject to confirmation; Patricia reserved the right to review and
verify the documents and amounts of all accounts; the exact
amounts of an equalization payment had not been calculated; a
Propertizer had not been prepared; and the tax impact division of
retirement benefits under the QDRO had not yet been calculated
by attorney Nancy Bunn, as the MSA provided.
The MSA’s terms were not uncertain simply because
verifications and calculations had yet to be performed. The MSA
set forth the percentages that each of the parties would receive
from each of the accounts and/or items of property identified.
Those percentages were fixed regardless of the valuation
ultimately placed on the property. The methods of valuation are
also sufficiently set forth to permit future performance (i.e.,
Propertizer, fair market value, calculations by a specific attorney,
etc.).
When asked to identify specific property that was omitted
from the settlement agreement, Freeman is unable to do so.
Conceding that there is no evidence establishing the existence of
10 We note that although the respondent’s brief argues that
the MSA is not a complete property settlement, it does not
contend that Freeman did not intend the MSA to be a complete
property settlement when he entered into it.
21
an omitted asset, Freeman contends that we can infer the
property settlement was not complete because Patricia lodged
objections to his motion to enforce the family law judgment.
Pressed further on which of Patricia’s objections comprise
sufficient evidence to support a finding that a specific, material
asset was omitted, Freeman highlights that Patricia sought to
include in the draft family court judgment boilerplate provisions
addressing choses in action, encumbrances and liens, insurance
policies, and social security benefits. But none of Patricia’s
suggested provisions are more than generic: they certainly do not
offer any basis to conclude the parties failed to account for an
actual, known asset or liability, or a chose in action or
encumbrance that needed to be dealt with separately from an
asset that one of them was to take through the settlement
agreement. While the existence of social security benefits might
be assumed, it is of no moment as federal law “bars Social
Security benefits from being characterized as community
property and divided in a dissolution proceeding.” (In re
Marriage of Peterson (2016) 243 Cal.App.4th 923, 931; In re
Marriage of Cohen (1980) 105 Cal.App.3d 836, 843 [social
security benefits are “not an asset of the community” and “not
subject to division”].)
Our Supreme Court has emphasized that, “few contracts
would be enforceable if the existence of subsequent disputes were
taken as evidence that an agreement was never reached.” (Patel
v. Liebermensch (2008) 45 Cal.4th 344, 351–352.) As a practical
matter, many property settlements that parties intend to be
complete overlook or disregard some items of property. If we
were to judge the “completeness” of a property settlement based
solely on whether it provided for the precise allocation of every
22
item of community or quasi-community property, no matter how
immaterial, it would be a rare property settlement that could be
deemed complete, despite the parties’ intentions that the
settlement be treated as such. It is clear from Freeman’s actions
that any objections Patricia may later have had were not
material to him when the couple entered into the settlement
agreement, or, indeed, at any time prior to the erroneous entry of
judgment. It is also clear that Patricia believed that the
allocation of these items would in fact be decided per the terms of
the MSA—i.e. that any ambiguity in the agreed-upon allocation
could be clarified with a ruling from the mediator. The contents
of the MSA with respect to the division of property, actions of the
parties, and the surrounding circumstances all indicate that the
parties intended for the property settlement to be complete.
Moreover, the record supports that Freeman and Patricia
succeeded: the agreement itself does not suffer from material
omissions that would undermine that intent. We therefore
conclude that the property settlement is a “complete property
settlement” within the meaning of section 145.
The MSA Operates as an Enforceable Waiver
Having concluded that Freeman and Patricia effected a
statutory waiver by entering into the MSA, we now turn to
whether that waiver is enforceable in this probate proceeding, as
required by section 142. First, the MSA is a written agreement,
which Freeman signed; this is all that is required by section 142,
subdivision (a).
Section 142, subdivision (b), additionally provides that a
waiver is only enforceable if it satisfies either section 143 or
23
section 144. Under section 143, subdivision (a), a waiver of the
rights enumerated in section 141 is enforceable, “unless the
surviving spouse proves either [that] (1) A fair and reasonable
disclosure of the property or financial obligations of the decedent
was not provided to the surviving spouse prior to the signing of
the waiver unless the surviving spouse waived such a fair and
reasonable disclosure after advice by independent legal counsel”
or that “(2) The surviving spouse was not represented by
independent legal counsel at the time of signing of the waiver.”
Freeman has not met his burden under either subdivision (a)(1)
or (a)(2) of section 143.
Freeman does not point to evidence in the record
identifying any particular property or financial obligation that
Patricia failed to disclose to him prior to entering the MSA. The
only reasonable inference from the record is that Patricia made a
fair and reasonable disclosure; specifically, it is undisputed that
Patricia and Freeman each filed and served the information
required by Family Code section 2104, also known as a
preliminary declaration of disclosure, prior to holding their
mediation and signing the MSA. By statute, “[a] preliminary
declaration of disclosure shall set forth with sufficient
particularity, that a person of reasonable and ordinary
intelligence can ascertain, . . . the identity of all assets in which
the declarant has or may have an interest and all liabilities for
which the declarant is or may be liable, regardless of the
characterization of the asset or liability as community, quasi-
community, or separate.” (Family Code, § 2104, subd. (c)(1).)
Freeman not only concedes he had Patricia’s preliminary
disclosure prior to entering the MSA, he repeatedly argued to the
family court that the exchange of that information was sufficient
24
for obtaining a dissolution judgment. Indeed, Freeman was
sufficiently satisfied with Patricia’s preliminary declaration of
disclosure, that he subsequently waived receipt of her final
declaration of disclosure. Moreover, he has not made any
argument or offered any evidence since Patricia’s death
suggesting any deficiencies in the disclosures she made prior to
signing the MSA. We find this uncontroverted evidence sufficient
to defeat any contention that Patricia did not make a fair and
reasonable disclosure of the information required to make a
waiver enforceable under section 143.11
Defenses to Enforcement of the Waiver
Freeman additionally contends that because certain issues
were never resolved or completed in the dissolution action in
family court, the MSA cannot be enforced in this probate action.
We reject these contentions.
11 In light of our conclusion that the statutory waiver is
enforceable pursuant to section 143, we need not address whether
the waiver would alternatively be enforceable pursuant to section
144. We note that, unlike section 143, which places the burden
on the surviving spouse to prove a lack of disclosure, section 144
makes a waiver enforceable where a court determines either that:
(1) the MSA when signed made “a fair and reasonable disposition
of the rights of the surviving spouse”; or (2) “the surviving spouse
had, or reasonably should have had, an adequate knowledge of
the property and financial obligations of the decedent[.]” There is
no indication in this record that Freeman has ever contended
that the MSA did not, when made, make a fair and reasonable
disposition of his rights; nor has he ever contended that he lacked
knowledge of Patricia’s property and financial obligations.
25
The Property Settlement Provisions of the MSA Are
Not Dependent Upon Entry of a Judgment of
Dissolution
Freeman first contends that the MSA never became
effective because the family court did not enter a judgment of
dissolution, and could not have entered a judgment because it
lost jurisdiction upon Patricia’s death. He argues that the MSA
was void under Civil Code 1598 because it had a single purpose—
entry of the judgment—which was wholly impossible of
performance. This contention lacks merit.
Civil Code section 1598 provides: “Where a contract has
but a single object, and such object is unlawful, whether in whole
or in part, or wholly impossible of performance, or so vaguely
expressed as to be wholly unascertainable, the entire contract is
void.” In this case, the MSA included several distinct objectives,
however—including setting spousal support, dividing the couple’s
property, facilitating the entry of a judgment dissolving the
marriage, and providing procedures to resolve any subsequent
disputes. Civil Code section 1598 is therefore inapplicable.
Freeman points to no provision in the MSA that states that
the entry of judgment is a condition of formation of the MSA.
Although the parties agreed to prepare a formal judgment to
submit to the mediator and agreed that the mediator would serve
as the judicial officer with respect to all issues that arose from
the settlement, entry of the judgment, and postjudgment matters,
the plain language of the MSA does not condition the division of
the couple’s property on either the preparation or the entry of a
judgment. The property settlement is not altered simply because
26
a judgment of dissolution was not entered and is now impossible
to enter as a result of Patricia’s death.12
Moreover, contrary to Freeman’s assertions, we did not
hold that the “object of the [MSA]” was impossible of performance
or void in our prior opinion in the family court action. We held
that the judgment could not be entered because the family court
had lost jurisdiction, which is an entirely separate issue. Our
prior opinion does not foreclose the possibility that the MSA
operates as a waiver of Freeman’s rights as a surviving spouse
under the Probate Code.
Lack of Decedent’s Final Declaration of Disclosure
Freeman also argues that the MSA is unenforceable
because Patricia did not make and serve her final declaration of
disclosure in the dissolution action and never entered into a
mutual waiver of disclosures with him pursuant to Family Code
section 2105, subdivision (a). Family Code section 2105,
subdivision (a) states: “Except by court order for good cause,
before or at the time the parties enter into an agreement for the
12 Freeman also appears to argue in a conclusory manner,
and without development, that because the MSA addressed
spousal support in addition to the division of property, the fact
that no judgment was entered ordering spousal support somehow
undermines the validity of the property settlement. We disagree.
The spousal support provision included in the MSA, consistent
with spousal support generally, included a provision never
disputed by the parties that spousal support would terminate
upon the death of either party. This provision underscores that
the property division settlement was intended to, and did,
operate independently of any payment of support.
27
resolution of property or support issues other than pendente lite
support . . . each party, or the attorney for the party in this
matter, shall serve on the other party a final declaration of
disclosure and a current income and expense declaration,
executed under penalty of perjury on a form prescribed by the
Judicial Council, unless the parties mutually waive the final
declaration of disclosure. . . .” Section 2105 permits a family
court to set aside the judgment if the parties fail to comply with
its terms or with the requirements of Family Code sections 2102
and 2104. (Fam. Code, § 2105, subd. (d).)
Freeman cites to section 142, subdivision (c), in support of
this argument, presumably likening the requirement for an
exchange of final declarations of disclosure in a dissolution action
to a defense against enforcement of a contract. His argument is
belied by the statutory scheme of Chapter 1. Nothing in sections
140 through 147 suggests that waivers under the chapter are
subject to the requirements set forth in the Family Code, or
states that a waiver is subject to enforceability requirements
additional to those listed. Indeed, attempting to import a
requirement of strict compliance with the Family Code’s
prerequisites to a completed dissolution judgment into Chapter 1
would undermine both the purpose and language of the Probate
Code’s statutory scheme. Significantly, section 145’s waiver
provision applies to agreements between spouses not only in
anticipation of dissolution of a marriage, but also “after . . .
separation.” (§ 145 (emphasis added).) There is no dispute that
happened here: Freeman and Patricia separated in September
2015 and signed their property agreement in October 2017.13
13
Waivers under Chapter 1 even apply to pre-marital
agreements, which are made without the service of declarations
28
Given that Chapter 1 applies even when the parties separate
without initiating a case in family court, it would make no sense
to interpret the Probate Code to require compliance with Family
Code provisions that only become operative upon the filing of a
petition for dissolution or legal separation. (See Fam. Code,
§ 2103 [requiring declarations of disclosure only in proceedings
for dissolution or legal separation].)
Moreover, attempting to import into the Probate Code the
Family Code’s specific requirements of the final declaration of
disclosure would be at odds with Chapter 1’s provision that there
can be a valid waiver of rights of survivorship even absent any
disclosure about property by the decedent. (See § 144, subd.
(a)(2) [providing for a valid waiver where “the surviving spouse
had, or reasonably should have had, an adequate knowledge of
the property and financial obligations of the decedent,” or where
the waiver included a reasonable disposition of the surviving
spouse’s rights.) These provisions would be rendered
meaningless if we were to adopt Freeman’s position that strict
compliance with the disclosure obligations set forth in the Family
Code are prerequisites to a valid waiver of rights under the
Probate Code.
Section 145’s disclosure requirements are less stringent
than the disclosure requirements of Family Code section 2105,
and would be subsumed within its requirements if both statutes
applied. Had the Legislature intended for Family Code section
2105’s disclosure requirements to apply, section 145’s treatment
of statutory waivers would be redundant and unnecessary—a
of disclosure. (§ 140 [making waivers of the rights of a surviving
spouse applicable to pre-marital agreements]; see Estate of
Gibson, supra, 219 Cal.App.3d at p. 1492.)
29
construction that we avoid when interpreting statutes. (State ex
rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1410.) We
therefore hold that compliance with Family Code section 2105 is
unnecessary to effectuate a waiver pursuant to section 145;
disclosure requirements for statutory waiver under section 145
are governed by the provisions of the Surviving Spouse’s Waiver
of Rights chapter of the Probate Code.14
14 We also reject Freeman’s assertion that, to the extent
that the MSA operates to revoke the nonprobate transfer
contemplated in the couple’s revocable trust and eliminates his
right of survivorship, it violates the notice requirements of
Family Code 2040—another Family Code section that is not
referenced in the Surviving Spouse’s Waiver of Rights chapter of
the Probate Code. The restraining orders put in place by Family
Code 2040 prohibit unilateral actions of the parties that would
have these effects “without the written consent of the other party
or an order of the court.” (Fam. Code, § 2040, subd. (a)(1).)
Under section 142, subdivision (a), a complete property
settlement cannot operate as a waiver without the written
consent of the other spouse by definition—a complete property
settlement must be written and signed by both parties to operate
as a waiver of the surviving spouse’s rights.
30
DISPOSITION
We reverse the probate court’s January 14, 2021 orders: (1)
denying Brendon’s Petition for Recovery of Property and
sustaining Freeman’s objections thereto, and (2) denying
Brendon’s Petition for Letters of Administration and granting
Freeman’s Petition for Probate of Will. We remand to the
probate court for further proceedings consistent with this opinion.
Appellants Brendon Welch and Jeanne Donohoe are awarded
their costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
31