Marriage of Berman CA2/7 ( 2023 )

Filed 10/9/23 Marriage of Berman CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re the Marriage of HAL and B322045
ELENA BERMAN.
(Los Angeles County
Super. Ct. No. BD533449)
HAL BERMAN,
Respondent,
v.
ELENA BERMAN,
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, David W. Swift, Judge. Affirmed.
Action Legal Team and Michael N. Sofris for Appellant.
David Ingram Law and David L. Ingram for Respondent.
_____________________________________
In 2016, five years after Hal Berman petitioned for the
dissolution of his marriage to Elena Berman, Hal and Elena1
entered into a settlement agreement resolving all outstanding
issues. In January 2022, after the family court had entered a
judgment on reserved issues, Elena moved to rescind the
settlement agreement. The family court denied the motion. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Marital Dissolution Petition, Hal’s Separate
Property Declaration and the July 2016 Court Order for
Sale of the Chatsworth Property
Elena and Hal married in 2003 and have a daughter, now
19 years old. According to a declaration by Hal, Elena and he, at
the time both represented by counsel, had entered into a
prenuptial agreement providing for the maintenance of separate
property. When Hal petitioned for dissolution of the marriage on
October 14, 2010, he listed as community or quasi-community
property a residence in another country. His Judicial Council
form separate property declaration included a residence in
Chatsworth purchased in 20012 and his automobile business. Hal
stated the debt on the Chatsworth property was $1,184,000.
On July 14, 2016 the family court ordered the Chatsworth
residence listed for sale by Hal, with the net proceeds from the
sale, along with funds equal to the amount necessary to release a
1 We refer to the Bermans by their first names for simplicity.
2 Hal’s separate property declaration stated the Chatsworth
property was purchased in May 2001. The record includes a copy
of a grant deed recorded May 23, 2001 in which a third party
transferred the Chatsworth property to Hal as an unmarried
man.
2
deed of trust recorded in favor of Hal’s parents, be maintained in
Hal’s attorney’s client trust account, subject to disbursement on
the parties’ mutual written instructions or further court order.
Elena was ordered to cooperate in the sale of the residence and to
vacate it when shown to prospective purchasers.
2. The 2016 Settlement Agreement
Elena and Hal agreed to a global settlement of all issues
relating to the dissolution of their marriage in 2016. The
settlement agreement, signed by Elena on August 31, 2016 and
by Hal on September 1, 2016, stated it was enforceable pursuant
to Code of Civil Procedure section 664.6. The agreement provided
Hal would deed the Chatsworth residence to Elena and waive his
right to the equity in the home. In exchange for the lien securing
the obligation owed to Hal’s parents, Elena was to immediately
pay $100,000 to Hal’s mother and execute a note and deed of
trust for $165,000, which would be subordinate to “any new first
deed of trust in an amount not to exceed the sums required to pay
the existing loans, liens, and encumbrances, and the immediate
payment to Hal’s Mother.” Hal agreed to cosign “the first deed of
trust loan to be obtained by Elena.” Elena would cure the default
on an existing secured bank loan to prevent foreclosure and
assume all liens and encumbrances “with the exception of the
parent loan” that the agreement had already addressed,
including property taxes and homeowner association dues. If
Elena were unable to cure the foreclosure before a specified date,
she agreed to immediately repay funds advanced to cure the
foreclosure concurrent with the transfer of title. Should Elena be
unable to obtain financing to complete the transaction, funds
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advanced to cure the foreclosure would be repaid from the
proceeds of the sale of the residence.
The settlement agreement also provided for continuing
monthly child support in an amount to be determined but no less
than $2,500; Hal’s provision of health insurance for their
daughter; waiver of, and termination of jurisdiction over, spousal
support; and waiver of support arrears. The parties further
agreed they would be awarded their separate personal property,
with community personal property to be determined by mutual
agreement. Hal filed a copy of the settlement agreement in
October 2016.
3. The Post-settlement Orders for Sale of the Chatsworth
Property and Cancellation of an Abstract of a Purported
$323,270.60 Judgment Recorded by Elena
On January 18, 2017 Hal filed a request for an order that
the Chatsworth residence be sold for $1,795,000 to a specified
third party. In a declaration in support of his request, Hal
explained Elena had failed to comply with her obligations under
the settlement agreement, requiring him to advance funds to
avoid foreclosure by obtaining a new loan shortly before the
bank’s initial foreclosure sale date. According to Hal, Elena
thereafter still refused to make loan payments, prompting
additional notices of default. Hal asserted, if the offer of the
prospective buyer was not accepted, the property would be lost to
foreclosure. The family court granted Hal’s request.
Elena moved for reconsideration of the order to sell the
property, asserting the court had failed to consider whether the
settlement agreement was valid. Elena also argued, even if the
agreement was valid, Hal had breached it. Elena subsequently
4
requested the court take her motion for reconsideration off
calendar.
On March 8, 2017 Hal filed a request for an order to
approve the sale of the Chatsworth property to a different third
party and to provide other relief that included granting Hal
exclusive possession of the property and enjoining Elena from
contacting the new potential buyer. Hal supported the request
with the declaration of the property’s listing agent, who averred
Elena had interfered with the sale to the prior intended buyer in
a variety of ways, which led to that individual’s cancellation of
the sale. Although another party had expressed interest, that
new potential buyer required the property be vacant. During the
delay caused by Elena’s interference with the court-approved
sale, Hal observed, interest had continued to accrue on the loans
secured by the property. The court granted Hal’s March 8, 2017
request the same day with a modification regarding the amount
of net sale proceeds.
In April 2017 Hal filed a request for orders that included
canceling a May 21, 2015 abstract of a purported June 29, 2012
judgment in the amount of $323,270.60. As shown by Hal’s
attorney’s declaration and attachments, Elena had on April 7,
2015 recorded an abstract of the same purported judgment,
which Elena admitted did not exist. Although the court in 2016
had ordered the April 2015 abstract of judgment canceled, Hal’s
attorney reviewed a preliminary title report showing Elena in
May 2015 had rerecorded the April 2015 abstract of judgment.
The court ordered the cancellation of the May 21, 2015 abstract of
judgment and directed Elena not to record further documents
relating to the Chatsworth property. The Chatsworth property
was sold in mid-2017. After payment of loan balances and a
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variety of other disbursements, Elena received the remaining
funds from the sale.
4. The Judgments and Elena’s Efforts To Rescind the
Settlement Agreement and Reinstate Her Writ of
Execution of a Purported $323,270.60 Judgment
On September 29, 2017 the court entered a status-only
judgment, terminating the marriage and reserving jurisdiction
over all other issues.
In March 2021 Elena filed what she captioned a trial brief
seeking, among other relief, an order rescinding the settlement
agreement and reinstating a June 29, 2012 writ of execution of a
purported $323,270.60 judgment. Elena in her family court
filings stated the writ of execution was based on an October 20,
2011 finding and order after hearing, which required Hal to pay
monthly child and temporary spousal support in specified
amounts, with double payments for the initial seven months to
pay off an arrearage due Elena.3
By minute order dated November 1, 2021 the court
reiterated the matter had settled in 2016 and vacated all future
hearings. The order stated Elena was free to file any challenges
to the settlement she wished.
On November 23, 2021 the family court entered judgment
on reserved issues.4 The judgment expressly provided for
3 We augment the record on our own motion to include the
October 20, 2011 finding and order after hearing. (See Cal. Rules
of Court, rule 8.155(a)(1)(A).)
4 The judgment, which was prepared on Judicial Council
form FL-180, checked the box next to the preprinted text,
“Judgment on reserved issues,” as well as next to the preprinted
text, “Judgment of dissolution is entered. Marital or domestic
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property division and child and spousal support as set forth in
the settlement agreement, which was attached, and further
provided, “Each attachment to this judgment is incorporated into
this judgment, and the parties are ordered to comply with each
attachment’s provisions. Jurisdiction is reserved to make other
orders necessary to carry out this judgment.” A notice of entry of
the November 23, 2021 judgment was filed and served by mail on
Elena and Hal that same day.
On January 21, 2022 Elena moved to rescind the
settlement agreement and to reinstate the June 29, 2012 writ of
execution. Contending the settlement agreement had never been
incorporated in a judgment, Elena argued the court had authority
to rescind the agreement and should do so because of Hal’s
breach of the agreement, his failure of disclosure, the illegality of
the agreement’s provision for waiver of support arrearages, and
Hal’s breach of his fiduciary duty to Elena.
Hal opposed Elena’s motion by arguing there was no legal
or factual basis to rescind the settlement agreement; Elena’s
motion was rife with factual misstatements; any claim for
rescission was barred by the statute of limitations; Elena’s
arguments had previously been made to, and rejected by, the
court; Elena, admitting her attorney reviewed the agreement
before she signed it, received the benefit of her bargain; and her
claims were further barred by the doctrines of estoppel, res
judicata and collateral estoppel (issue preclusion). He also
explained the court had entered a final judgment on reserved
issues.
partnership status is terminated and the parties are restored to
the status of single persons.”
7
On May 31, 2022, at the conclusion of a hearing that same
morning in which both parties were present, the family court
orally denied Elena’s motion to rescind the settlement agreement
and reinstate her June 29, 2012 writ of execution. The court’s
one-page minute order provided no explanation for the
denial of Elena’s motion.
DISCUSSION
On appeal Elena seeks reversal of the family court’s
May 31, 2022 order denying her motion to rescind the settlement
agreement and to reinstate her writ of execution, contending the
settlement agreement was never incorporated into a judgment.
Relying on Family Code section 2128, subdivision (b), which, she
asserts, reserves her right to seek rescission,5 Elena in her
opening appellate brief argues the sole issue for this court’s
determination is whether her rescission claim was barred by the
four-year limitations period of Code of Civil Procedure
section 337, subdivision (c).6 Elena’s appeal of the order denying
the motion is fundamentally flawed.
If the parties’ settlement agreement is incorporated into a
judgment of dissolution, the “separation agreement is superseded
by the decree, and the obligations imposed are not those imposed
by contract, but are those imposed by decree, and enforceable as
5 Family Code section 2128, subdivision (b), provides,
“Nothing in this chapter changes existing law with respect to
contract remedies where the contract has not been merged or
incorporated into a judgment.”
6 Code of Civil Procedure section 337, subdivision (c),
provides a four-year limitations period for “[a]n action based upon
the rescission of a contract in writing.”
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such.” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205,
1220 [cleaned up]; accord, Hough v. Hough (1945) 26 Cal.2d 605,
609; see Westinghouse Electric Corp. v. Newman & Holtzinger
(1995) 39 Cal.App.4th 1194, 1205 [“It has long been the rule in
this state that a pre-existing agreement between the parties is
extinguished upon its incorporation into a court order. Once the
agreement is merged into the court’s order, neither party any
longer has a right of action based on the agreement because the
obligations imposed are not imposed by the agreement but by the
order and are enforceable as such through contempt and other
sanctions available to the court”]; see also Flynn v. Flynn (1954)
42 Cal.2d 55, 58 [“[m]erger is the substitution of rights and duties
under the judgment or the decree for those under the agreement
or cause of action sued upon”].)7 In determining whether a
merger was intended, courts have considered: “‘(1) recitals in the
agreement which indicate that it is to be presented to the divorce
court for aproval [sic] and/or incorporation in the decree; (2) the
physical incorporation of the words of the agreement in either the
body of the decree or as an exhibit attached thereto; (3) if not so
attached, the extent to which the decree expressly purports to
incorporate the provisions of the agreement, and the extent to
which the agreement so incorporated can be identified from the
terms of the decree; and (4) the extent to which the decree
purports to order the performance of the terms of the
7 “The question of whether or not a property settlement
agreement is incorporated into a divorce decree so as to merge
therein is one of law.” (Mitchell v. Marklund (1965)
238 Cal.App.2d 398, 403; accord, Biagi v. Biagi (1965)
233 Cal.App.2d 624, 628.)
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agreement.’” (In re Marriage of Lane (1985) 165 Cal.App.3d 1143,
1147-1148.)
Here, the settlement agreement was incorporated and
merged into the November 2021 judgment of dissolution: The
agreement’s statement it was enforceable pursuant to Code of
Civil Procedure section 664.68 indicated it was intended to be
presented to the court for entry of judgment pursuant to its
terms; and the agreement was later physically attached to and
expressly incorporated in the judgment, which ordered
compliance with its provisions. Accordingly, whatever the merits
of Elena’s contention Family Code section 2128, subdivision (b)’s
reference to “contract remedies” includes rescission, Elena fails to
establish entitlement to rescission under that statutory provision,
which only applies “where the contract has not been merged or
incorporated into a judgment.” To be sure, although the
settlement agreement, having been merged into the judgment,
was superseded by it, such that “‘the merger itself has
extinguished the contract’s obligations’” (In re Marriage of Jones
(1987) 195 Cal.App.3d 1097, 1104), the underlying obligations
nevertheless became enforceable as imposed by the November
2021 judgment. Yet Elena neither appealed the judgment nor
sought to set it aside.
Selectively quoting the family court’s statements at the
hearing on her rescission motion, Elena argues the court denied
8 Code of Civil Procedure section 664.6, subdivision (a),
provides in part, “If parties to pending litigation stipulate, in a
writing signed by the parties outside of the presence of the court
or orally before the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to
the terms of the settlement.”
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the motion solely based on the statute of limitations. At the
hearing, however, the court provided additional bases for denying
her motion, including that it lacked the ability and grounds to
rescind the settlement agreement.
Moreover, when, as here, there is no statement of decision,
we infer all findings in favor of the family court’s order under the
doctrine of implied findings. (In re Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1133-1134; see Hall-Villareal v. City of Fresno
(2011) 196 Cal.App.4th 24, 34-35.) “The doctrine of implied
findings requires the appellate court to infer the trial court made
all factual findings necessary to support the judgment.
[Citation.] The doctrine is a natural and logical corollary to
three fundamental principles of appellate review: (1) a judgment
is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the
burden of providing an adequate record affirmatively proving
error.” (Fladeboe v. American Isuzu Motors Inc. (2007)
150 Cal.App.4th 42, 58; see also Marriage of Arceneaux, at
p. 1133.) Although Elena briefly mentions she had requested a
statement of decision, she does not contend the court’s May 31,
2022 order should be reversed and the case remanded for the
court to issue one. In any event, she provides no cogent
argument, with citation to legal authority, why the family court
was required to issue a statement of decision under the
circumstances here9 and thus has forfeited any argument the
9 Elena’s request for a statement of decision was made
pursuant to Code of Civil Procedure section 632. Even assuming
the hearing on the motion constituted a “trial of a question fact”
within the meaning of section 632, because the hearing took place
on a single morning, Elena’s request for a statement of decision
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court erred in failing to issue one. (See WFG National Title Ins.
Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“In
order to demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal
analysis and citation to the record. . . . [W]e may disregard
conclusory arguments that are not supported by pertinent legal
authority”]; Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 [“‘[t]he absence of cogent legal
argument or citation to authority allows this court to treat the
contention as waived’”].)
DISPOSITION
The May 31, 2022 order is affirmed. Hal is to recover his
costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
MARTINEZ, J.
10 days later was untimely under that statute. (See Code Civ.
Proc., § 632 [request for statement of decision for a trial
concluded within one calendar day must be made prior to the
submission of the matter for decision].)
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