Marriage of Weyer CA2/5

Filed 12/29/20 Marriage of Weyer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Marriage of MARY ANN B298035
and THOMAS E. WEYER.
(Los Angeles County
Super. Ct. No. BD608419)
MARK D’ACHILLE, as Personal
Representative, etc.,
Respondent,
v.
THOMAS E. WEYER,
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Doreen Boxer, Commissioner. Dismissed.
Law Offices of Michael T. Frawley and Michael T. Frawley
for Appellant.
James Alexander Karagianides for Petitioner and
Respondent.
Acrimonious marriage dissolution proceedings between
Mary Ann Weyer (Mary Ann) and Thomas Weyer (Thomas)
eventually resulted in a marital settlement agreement
stipulating that they would sell the home they owned as joint
tenants (dividing the proceeds between them), that life insurance
policies “on [Mary Ann’s] name and owned by her” were her
separate property, and that the parties waived their right to
appeal from a judgment entered pursuant to the terms of their
agreement. Mary Ann had already been diagnosed with cancer
when the agreement was executed, and when she later died, the
home had not yet been sold and it appeared Thomas was still the
listed beneficiary on file for one of Mary Ann’s life insurance
policies. The family court later entered a judgment that
incorporated the settlement agreement’s terms and denied
Thomas’s request that he be declared the sole owner of the home
and deemed entitled to the proceeds of that life insurance policy.
We now consider whether Thomas can seek reversal on appeal of
the court’s ruling that he should not receive either asset.
I. BACKGROUND
A. The Settlement Agreement
Mary Ann and Thomas married in 1990. In 2013, Mary
Ann was diagnosed with advanced stage multiple myeloma
cancer and told she had only months to live. Mary Ann and
Thomas separated later in 2013, and a status-only judgment of
dissolution was entered in 2016.
In 2017, Mary Ann and Thomas participated in a
mandatory settlement conference (with a retired judge serving as
a mediator) and were able to reach a settlement to divide marital
assets. They memorialized the agreed upon terms by
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handwriting them on a pre-printed court settlement form. The
agreement was signed by Mary Ann and her attorney; Thomas
was unrepresented and signed alone.
The settlement terms that matter for purposes of this
appeal concern the disposition of (1) a life insurance policy and
(2) the marital residence at 22244 Parthenia Street in West Hills,
California (the Home). Regarding the policy, the settlement
agreement states “[t]he following PROPERTY, whether
community or separate, is awarded and confirmed to the
PETITIONER [i.e., Mary Ann] as the separate property of the
petitioner, along with any and all encumbrance thereon, and
petitioner shall hold respondent [i.e., Thomas] harmless from
such encumbrances: . . . (5) All life insurance policies on her name
and owned by her[,] i.e.[,] WRL Policy & Motion Picture Industry
Policy . . . .” The “WRL Policy” identified in the settlement
agreement refers to a $250,000 life insurance policy purchased
through Western Reserve Life Assurance Company, for which
claims were administered by Transamerica Premier Life
Insurance Company (hereafter, the WRL/Transamerica policy).
Regarding the Home, which Mary Ann and Thomas held as joint
tenants, the agreement states it shall be sold forthwith and
Thomas would make a $50,000 equalization payment to Mary
Ann from his one-half share of the sale proceeds.
In addition to these terms, the parties checked several
boxes on the form settlement agreement beneath the heading
“ORDERS RELATING TO JUDGMENTS ONLY.” One of the
boxes checked in this section of the settlement agreement states
“[a]ll parties waive the right to appeal, to request a statement of
decision, and to move for a new trial.” The settlement agreement
also includes a long recitation of the circumstances under which
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it had been entered into, including an off the record colloquy with
the court: “The court off the record per 664.6 swore the parties
and inquired of the voluntary and free entry into this agreement.
Both parties acknowledged they freely, voluntarily entered the
agreement and no medical, mental health or drug use
(prescription or otherwise) interferes with their willingness to
reach the agreement. The parties acknowledged enough time to
consider the agreement and consult [with] counsel of their
choosing if they wished.”
B. Proceedings to Enforce the Settlement Agreement
The settlement agreement obligated Mary Ann’s attorney
to prepare a judgment consistent with the agreement and submit
it to Thomas for his approval. Mary Ann’s attorney did so, but
received no response from Thomas. A couple months later, in
March 2018, Mary Ann filed a request for an order in the family
court seeking entry of judgment pursuant to the terms of the
settlement agreement per the procedure authorized by Code of
Civil Procedure section 664.6.1 Mary Ann died a few days later.
Thomas opposed Mary Ann’s request for order and filed his
own request for an order that would deem him the sole owner of
the Home and entitle him to the proceeds of Mary Ann’s
WRL/Transamerica policy. Thomas argued he was the sole
owner of the Home because he and Mary Ann held the property
as joint tenants with a right of survivorship. He argued he was
1
In relevant part, the statute provides: “If parties to
pending litigation stipulate, in a writing signed by the parties
outside 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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entitled to the proceeds of the WRL/Transamerica policy because
he remained the primary beneficiary on file with the insurance
company when Mary Ann died.2
At a hearing November 5, 2018, the court considered the
parties’3 requests for orders. As to the Home, Mary Ann argued it
was a community asset and the parties’ settlement agreement
took precedence over the form of title. As to the
WRL/Transamerica policy, Mary Ann took the position that the
family court could construe the settlement agreement to provide
“that [Mary Ann] was going to own it, and the beneficiaries would
have been who she wanted them to be, which appears to be self-
evident from the document.”
In a subsequent written decision signed by the court on
May 21, 2019, the family court made the following rulings: “The
court grants the request to enter the Settlement Agreement into
judgment pursuant to Code of Civil Procedure § 664.6[;] [¶] The
court denies the request that the entire interest in the prior
family residence be transferred to [Thomas;] [¶] The court denies
the request that [Mary Ann’s] WRL/Transamerica life insurance
2
In her application for the WRL/Transamerica policy, Mary
Ann designated Thomas as the primary beneficiary and her sister
as the contingent beneficiary. Both Thomas and Mary Ann’s
sister filed claims with Transamerica after Mary Ann died.
Transamerica indicated it would interplead the funds if the
competing claimants did not reach an agreement.
3
Mary Ann’s brother, Mark D’Achille, was appointed
personal representative of her estate. In the discussion that
follows, for simplicity’s sake, we refer to Mary Ann as the
respondent on appeal, even though her brother is the personal
representative of her estate and the respondent.
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policy be awarded to [Thomas;][4] [¶] The court grants the request
that one-half interest of [an annuity held by Mary Ann] be
awarded to Thomas;] [¶] The court denies [Thomas’s] request for
attorney’s fees.”
Thomas then noticed an appeal. It states he “shall be
appealing the Court’s November 5, 2018 Findings and Order
After Hearing on [Thomas’s] RFO re prior family residence and
WRL/Transamerica life insurance benefits. The Order was filed
on May 21, 2019.”
II. DISCUSSION
In the settlement agreement, the parties waived their right
to appeal from any judgment entered pursuant thereto. The
family court entered such a judgment, in response to Mary Ann’s
request, pursuant to Code of Civil Procedure section 664.6.
Thomas nevertheless purports to appeal from the family court’s
ruling predicated on the settlement agreement, and Mary Ann
argues the appeal must be dismissed pursuant to the appellate
waiver provision to which the parties agreed. (See generally
4
In a section of the court’s decision explaining its findings,
the court wrote: “[T]he Court finds that there is no dispute that
[the WRL/Transamerica] policy was awarded to [Mary Ann] in
the settlement agreement. The Court finds that [Thomas] has
presented evidence that he is named as the sole primary
beneficiary. However, the Court finds that after the division,
which was as of the date of the settlement agreement, the parties
would have the ability to change the beneficiary and [Mary
Ann’s] personal representative at this point is that person. The
Court therefore finds that the policy, the law, is to permit the
beneficiary designation to be changed. The Court further finds
that it awards the policy to [Mary Ann].”
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Pratt v. Gursey, Schneider & Co. (2000) 80 Cal.App.4th 1105,
1108 [explaining a party may expressly waive the right to appeal
and dismissing the appeal pursuant to such an express waiver].)
Thomas offers a single argument to avoid dismissal: the
claim that his waiver of the right to appeal was not knowing and
intelligent. Here is how he puts it in his reply brief: “[Thomas]
was not represented by an attorney when the [settlement
agreement] was executed. There is no explanation in the
[settlement agreement] of the meaning and effect of ‘All parties
waive the right to appeal . . .[’] at Paragraph 902. There is no
indication in the [settlement agreement] that [Thomas]
knowingly and intelligently understood what a ‘waiver of right to
appeal’ means. There is no Reporter’s Transcript to confirm that
the Court made an inquiry of [Thomas] as to a ‘knowing and
intelligent waiver of his right to appeal.’ [¶] The appeal is from
the Trial Court’s decision issued on November 5, 2018 concerning
[Thomas’s] Request for Order which was filed on September 28,
2018, over . . . one year after the July 24, 2017 [settlement
agreement] was executed. [¶] [Mary Ann] has not presented any
competent evidence that [Thomas] made a knowing and
intelligent waiver of his right to appeal of a non-filed, non-court
approved Handwritten Agreement at a time when he was not
represented by an attorney. This mandates that [Mary Ann’s]
request that this appeal be dismissed for lack of jurisdiction be
denied.”
We find Thomas’s position unconvincing on the record
presented—in particular, in light of the settlement agreement
that he himself signed. Not only does that agreement recite in
understandable fashion the terms agreed to with the mediator’s
assistance, it memorializes in significant detail an off the record
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colloquy between the parties and the court that took place to
ensure just what Thomas claims is lacking, namely, that both
parties knowingly and voluntarily agreed to the terms of the
agreement. By signing the agreement, Thomas confirmed—while
under oath before the court—that he freely and voluntarily
entered into the settlement agreement, that he had enough time
to consider the agreement, and that he had the opportunity to
consult with counsel about the terms of the agreement if he so
chose. That is ample evidence of his knowing and voluntary
assent to the agreement’s terms, including the waiver of the right
to appeal therein, and we shall accordingly enforce the appellate
waiver.
DISPOSITION
The appeal is dismissed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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