After a protracted but unsuccessful effort to set aside a marital settlement agreement (MSA), appellant Joanne Lafargue-Guilardi (Wife) moved for pendente lite attorney fees for the proceeding, citing Family Code section 2030. The family court granted the motion of respondent Benjamin Guilardi (Husband) to dismiss Wife’s request, finding an implicit waiver of statutory fees in the MSA. Wife appeals, contending that any waiver of attorney fees is inconsistent with the MSA and the law. Wife further contests the lower court’s alternative finding that attorney fees for the set-aside proceeding were not justified under the circumstances presented. We find no error in the court’s first ruling and must therefore affirm the order.
Background
In April 2005, after a marriage of more than 16 years, the parties separated, and the following month they executed an MSA addressing division of property as well as support and custody of their 10-year-old daughter. The MSA was incorporated into a judgment filed on October 12, 2005.
On October 11, 2006, Wife moved to set aside both the judgment and the MSA, citing fraud, mistake, duress, perjury, and noncompliance with Family Code section 2100 et seq.
Having determined the MSA to be valid, the court found moot a separate issue raised by Wife, the validity of the parties’ prenuptial agreement. The court determined that Wife had failed to establish that she was forced by Husband to enter into that agreement. The court did find the waiver of spousal support to be unenforceable. Nevertheless, it denied Wife’s request to
On June 8, 2009, Wife sought $867,638.26 in attorney fees for the “prosecution of her statutory and noncontractual claims under Family Code sections 2100 et. seq. and 2122 et seq. for the set aside of the parties’ Judgment for Dissolution and Marital Settlement Agreement.” The requested fees covered the period from September 25, 2006, through March 2, 2009. Husband moved to dismiss the motion based in part on a fee provision in the MSA allowing attorney fees to the prevailing party in an action related to the MSA. Wife defended her request, arguing that the prevailing party provision was inapplicable. On October 9, 2009, the superior court granted Husband’s motion. Wife then brought this appeal.
Discussion
Section 2030 authorizes an award of pendente lite attorney fees to one party in a dissolution proceeding to the extent that the award is “reasonably necessary” to compensate that party for maintaining or defending the proceeding. Former subdivision (a) required the court to consider “the respective incomes and needs of the parties” in order to “ensure that each party has access to legal representation ... to preserve each party’s rights.” (§ 2030, former subds. (a)(1), (2).)
In granting Husband’s motion to dismiss Wife’s request for fees, the lower court made two ultimate findings. First, it determined that while the MSA did not contain an express waiver of fees, its broad language conveyed an implicit waiver of any claims other than those available to the prevailing party in the proceeding. Even if, as Wife claimed, she had no intention to relinquish a known right, she “should have taken reasonable steps to understand the potential rights she was giving up before signing the agreement.” The MSA, the court noted, did not have to outline every single right delineated in the Family Code. The document nonetheless “created an implication that Wife made every effort to understand her rights before signing the agreement, and knowingly gave up her right to ‘any and all past,
Wife readily acknowledges the attorney fee provisions contained in the parties’ MSA. She nonetheless renews her position that absent an explicit waiver either in the provision itself or expressed during the litigation, the MSA cannot supersede a party’s entitlement to need-based fees under section 2030. However, while insisting that rights as a prevailing party and rights under the statute “can be simultaneously available,” she does not explain how such a circumstance would apply in this case—that is, how the inconsistency between the two rights should be resolved where one party is the prevailing party but the other party is the one presumably in need.
Husband’s response is of no assistance. He merely refers to family law texts and to In re Marriage of Sherman (1984) 162 Cal.App.3d 1132 [208 Cal.Rptr. 832], a case applying an MSA provision to uphold a fee award, and which did not discuss the availability of fees under the applicable predecessor statute to section 2030.
Here the parties’ agreement stated: “If either party brings an action or other proceeding to enforce this Agreement, or to enforce or modify any judgment or order made by a court in connection with this Agreement or to obtain any judgment or order relating to or arising from the subject matter of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and other costs from the other party as established by the court of competent jurisdiction.” The agreement also states its purpose at the outset, including the parties’ intent to “[relinquish any and all past, present, and future claims that each may have against the property or estate of the other party . . . .” We agree with the lower court that this language broadly encompasses claims either party might bring against the other (or against that person’s estate) arising out of the agreement. As in Taliaferro and Grolla, Wife’s challenge to the validity of the agreement had already been found to be without merit at the time of the October 2009 order, and there was no exception, whether statutory, contractual, or equitable, precluding its enforcement.
Wife further protests, however, that statutory fee claims cannot be waived to the extent that they challenge the MSA provisions for child support and “other matters affecting the child’s welfare.” The factual premise of her assertion, however—that she was seeking fees “incurred advocating for the parties’ child”—is unsupported by the record. Wife points to a one-paragraph entry in her declaration describing the provisions for child support and suggesting that the tax deductions for child support be allocated to her. Nowhere in her points and authorities did she argue that her motion to set aside the MSA had anything to do with “relief from the child support provisions,” as she now represents. Instead, it generally addressed the transaction as a whole, asserting Husband’s failure to comply with disclosure requirements, perjury, her own mistake of fact and law (resulting from lack of legal representation), duress in obtaining her execution of the MSA, and fraud. The result, she complained, was the inequitable spousal support she received and the unfair division of community property to which she had unknowingly agreed.
Wife makes much of her disadvantaged position in not being represented by counsel when she signed the settlement agreement. We regard this
The family court additionally noted that “[a] prevailing party standard is used in agreements to discourage litigation and to make it clear that the losing party will pay.” In that vein, the court made the alternative finding that even if the MSA were construed to permit a need-based award to Wife, it would not be justified under the circumstances presented, in light of Wife’s prior unsuccessful attempt to set aside the MSA and her willful destruction of the prenuptial agreement. Husband makes no effort to . defend this reasoning. Wife does not contend, however, that the court misapplied the factors it was required to consider under section 2032 and 4320;
The order is affirmed. In the interests of justice, the parties shall bear their own costs on appeal.
Rushing, R J., and Premo, J., concurred.
A petition for a rehearing was denied December 1, 2011, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied February 15, 2012. S198775.
All further statutory references are to the Family Code except as otherwise specified.
Wife filed her notice of appeal on December 3, 2009. This court denied Husband’s motion to dismiss this appeal, although in a related case (In re Marriage of Guilardi (Oct. 13, 2010, H035208)) we issued a partial dismissal for untimeliness to the extent that the appeal pertained to the 2009 orders of July 28 and August 20.
See Civil Code former section 4370.
Civil Code section 1542 provides, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Section 2032 requires the court considering fees under section 2030 to determine to what extent such an award would be “just and reasonable,” by evaluating “the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” (§ 2032, subd. (b).) Section 4320 sets forth factors to be considered when awarding spousal support, including such things as the marketable skills of the parties, the need for education and training, the needs of the parties based on the standard of living established during the marriage, the obligations and assets of each party, the duration of the marriage, and the balance of hardships to each party. (§ 4320, subds. (a), (d),.(e), (i), (k).)