Lead Opinion
Opinion
In this marital dissolution case, appellant Clark Woolsey persuaded respondent Anna Woolsey to participate in a church-sponsored reconciliation session that turned into a mediation
Anna moved to enforce the agreement under Code of Civil Procedure section 664.6. Clark apparently changed his mind about the terms of the agreement and opposed entry of judgment. After a trial, the court entered judgment on the agreement. The court also made custody and visitation determinations in the same judgment.
Clark appeals, contending (1) the marital settlement agreement is unenforceable for lack of timely financial disclosures under Family Code sections 2104 and 2105,
We conclude the trial court properly entered judgment on the marital settlement agreement. In response to Clark’s contentions, we conclude (1) parties who agree to settle their disputes by private mediation may also agree to make financial disclosures that do not meet the technical procedural requirements of sections 2104 and 2105; (2) rule 30.7 is invalid insofar as it imposes additional requirements on a mediated settlement agreement beyond those specified by statute; (3) the record reveals Clark received a full and fair trial; (4) Clark forfeited the right to further mediation or arbitration of the issues; (5) the mediation confidentiality imposed by Evidence Code section 1119 undermines Clark’s arguments regarding undue influence and there is no presumption of undue influence in a marital settlement agreement reached as the result of mediation; (6) Clark’s failure to provide any legal authority that supports his deceit argument forfeits the issue on appeal; (7) Clark’s challenges to the custody and visitation terms in the judgment do not establish an abuse of discretion by the trial court; and (8) the trial court’s statement of decision is adequate in addressing the issues presented for trial. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Marriage and Separation
The parties married in September 2001. They had two children, who were bom in California: Grant, who was bom in July 2002, and Claire, who was bom in February 2004. The parties lived in California until they moved to Missouri in December 2007. Clark and Anna separated on April 30 or May 1, 2009. Anna and the children moved back to California, where Anna had lived her entire fife except for the 18 months she resided in Missouri.
In July 2009, Anna filed a petition for legal separation.
Mediation Results in a Marital Settlement Agreement
In August 2009, Clark hoped to achieve reconciliation with Anna and urged her to participate in mediation provided by Live at Peace Ministries. Anna was skeptical but agreed to participate.
Mediation began on August 20, 2009, but no agreement to' reconcile was reached during the first two days. Thus, the focus of the mediation for the
On the same day the parties signed the marital settlement agreement, Clark was served with Anna’s petition for legal separation.
In September 2009, Anna filed her preliminary and final declaration of disclosure and income and expense declaration. A month later, the parties entered a stipulation regarding custody and visitation in which they agreed Anna would have custody of the children “at all times” except for the period from October 30 to November 1, 2009, and the Thanksgiving holiday period of November 21 to 29, 2009. Anna was entitled to keep the children during the entire Christmas holiday.
In January 2010, Anna filed an amended petition to seek dissolution of marriage. That same month, Clark served a preliminary declaration of disclosure. He never filed a final disclosure.
Trial on Enforceability of the Marital Settlement Agreement and on Issues of Custody and Visitation
In February 2010, Anna moved to enter judgment to enforce the marital settlement agreement under Code of Civil Procedure section 664.6. Clark opposed entry of judgment on the agreement, and a one-day trial occurred on August 16, 2010. During trial Clark represented himself while Anna had legal counsel. Clark cross-examined Anna and examined Jack D. Love, M.A., M.F.T., the child custody mediator. Although Clark testified on his own behalf, he did not call any witnesses except for Love. During his testimony, Clark admitted he was not aware of any marital asset that was not discussed during the August 2009 mediation.
At the end of his testimony, Clark stated: “That’s it.” Clark did not make any offer of proof regarding additional evidence he wanted to introduce.
The trial court granted Anna’s motion to enter judgment on the marital settlement agreement under Code of Civil Procedure section 664.6. The court also awarded joint legal and physical custody, with a parenting schedule that confirmed Anna as the primary caregiver for the children.
Clark timely appealed from the judgment.
DISCUSSION
I
Financial Disclosures
Clark contends the marital settlement agreement must be set aside because the parties failed to make the financial disclosures in compliance with sections 2104 and 2105. We reject the contention.
A.
Family Code Disclosure Requirements
Under the Family Code, “parties to marital dissolution proceedings have an affirmative duty to exchange both a preliminary and a final declaration of disclosure, detailing all of their assets and liabilities, prior to judgment being entered.” (In re Marriage of McLaughlin (2000)
To this end, the version of section 2104 in effect at the time judgment was entered governed preliminary disclosures by requiring that, “[e]xcept by court order for good cause, as provided in Section 2107, after or concurrently with service of the petition for dissolution or nullity of marriage or legal separation of the parties, each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.” (Former § 2104, subd. (a), as amended by Stats. 2009, ch. 110, § 1.)
Similarly, section 2105 requires final financial disclosures by providing that, “[e]xcept by court order for good cause, before or at the time the parties
B.
Private or Nonjudicial Arbitrations and Mediations
“Sections 2104 and 2105 were enacted in 1993, as part of a statutory scheme designed to ensure that parties to a dissolution action meet their fiduciary duty to make full disclosure of their assets and liabilities. (§ 2100.)” (Elden v. Superior Court (1997)
In excusing the disclosure requirements of sections 2104 and 2105 for nonjudicial arbitration cases, the Elden court explained: “Although we recognize the public policy reasons for the disclosure sections set forth within the Family Code, we conclude that the parties to a dissolution who have agreed to engage in private arbitration of their property issues are entitled to adopt other, more summary procedures for financial disclosure. Here, for example, according to the arbitrator, the parties assured him that they had made the necessary disclosures. Under these circumstances, and because parties to private arbitrations waive a number of rights just as important as those set forth in the disclosure provisions at issue here, we conclude that the trial court erred in holding that Husband and Wife were required—prior to the arbitration—to submit the disclosure statement required by section 2105. If parties to a marital dissolution enter an agreement to settle their property or support issues by private or nonjudicial arbitration, they may do so without complying with section 2104 or section 2105.” (Elden, supra, 53 Cal.App.4th
We agree with Elden that parties to a marital dissolution action may opt out of litigation by agreeing to an alternative dispute resolution mechanism that does not involve all of the formalities required of an adversarial system of justice. Private mediation, like nonjudicial arbitration, offers a speedy and less expensive approach to resolution of issues arising from marital dissolution. As recognized by the California Supreme Court, “mediation [is] a form of alternative dispute resolution encouraged and, in some cases required by, the Legislature.” (Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001)
Private mediation, like nonjudicial arbitration, offers an alternate approach to resolve disputed issues arising from a marital dissolution. Requiring technical compliance with disclosure rules designed for adversarial litigation would undermine the strong public policy of allowing parties to choose speedy and less costly avenues for resolving their disputes. Parties who agree to settle their dispute by private mediation may also agree to make financial disclosures that do not meet the technical procedural requirements of sections 2104 and 2105. Thus, strict compliance with sections 2104 and 2105 is not required for private mediations that address issues arising out of a marital dissolution.
C.
Postmediation Disclosures Prior to Entry of Judgment
After a mediation in a marital dissolution case, parties must nonetheless comply with section 2106 prior to entry of judgment by the trial court. In pertinent part, section 2106 instructs that “no judgment shall be entered with respect to the parties’ property rights without each party, or the attorney for that party in this matter, having executed and served a copy of the final declaration of disclosure and current income and expense declaration.” Exceptions to this disclosure requirement are written waivers by the
In this case, Anna and Clark made multiple disclosures of their finances prior to entry of judgment. The marital settlement agreement that culminated from the mediation declares that “Clark and Anna agree that they have fully disclosed all financial matters.” Thus, the agreement addresses the parties’ cash assets and debts, provides for division of their real property, and addresses such specifics as whose name should appear on the cable bill, investigation of health insurance options, life insurance policies, and financial accounts for their children. Moreover, the agreement even confirms to Anna and Clark items of personal property such as specific items of children’s furniture, exercise equipment, linens and blankets, Christmas decorations, camping gear, and bookshelves. In the event Clark and Anna forgot to address any piece of property, the agreement includes the catchall provision that “[a]ny remaining unwanted items may be disposed of or sold at Clark’s discretion.”
After the mediation and before entry of judgment, Anna and Clark both served each other with preliminary financial disclosures. Anna served her final disclosure at the same time as her preliminary disclosure. However, Clark never filed a final disclosure.
We reject the argument that the trial court was precluded from entering judgment on the marital settlement agreement for lack of disclosures.
II
Rule 30.7 of the Placer County Local Rules of Court
Clark next argues the trial court erred in entering judgment on the marital settlement agreement because it did not comply with the requirements of rule 30.7 that such agreements be notarized and admonish parties of their right to seek legal counsel.
A.
The Trial Court Excused Compliance with Rule 30.7
The trial court rejected Clark’s challenge to the marital settlement agreement for noncompliance with rule 30.7 as follows: “The court finds that neither party was represented by an attorney in the negotiation and preparation of the Settlement Agreement; it was all accomplished through mediation with the Live at Peace Ministries. Compliance with Placer County Superior Court Rule 30.7[A] and [B] is not required. The signatures of the parties were not notarized as required by Rule 30.7[C], which is a requirement in order that the Court can be assured that the signatures are genuine, in this case that is not an issue, the parties have acknowledged that the signatures are theirs. In the Rules of Procedure for Christian Conciliation, to which the parties agreed to be bound they were advised of their right to legal representation in the mediation process.”
B.
Review of Local Rules of Court
As the California Supreme Court explained in the seminal case of Elkins v. Superior Court (2007)
“. . . A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the California Constitution or case law. (Rutherford, supra, at pp. 967-968; see also Hall v. Superior Court (2005)
One court summarized: “A rule of court may go beyond the provisions of a related statute” only “so long as it reasonably furthers the statutory purpose. (Butterfield v. Butterfield (1934)
And, as the Elkins court noted, “Reviewing courts have not hesitated to strike down local court rules or policies on the ground they are inconsistent with statute, with California Rules of Court promulgated by the Judicial Council, or with case law or constitutional law. Appellate decisions have invalidated local rules or restricted their application in many areas of affected litigation, including dissolution actions . . . .” (Elkins, supra,
C.
Entry of Judgment on Mediated Agreements in Marital Dissolution Proceedings
Section 2550 allows parties to divide community property by written agreement.
We note that “ ‘[property settlement agreements occupy a favored position in the law of this state . . . .’ {Adams v. Adams (1947)
Once a settlement agreement is entered into by the parties, they may avail themselves of a quick and effective avenue for enforcement by making a motion to enter judgment on the agreement. To this end, Code of Civil Procedure section 664.6 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. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
We recognize that “ ‘[t]he statutory procedure for enforcing settlement agreements under section 664.6 is not exclusive: It is merely an expeditious, valid alternative statutorily created. (Kilpatrick v. Beebe (1990)
Code of Civil Procedure section 664.6 requires only that a settlement agreement be reduced to writing and signed by the parties, or orally stated in court. For a written settlement agreement reached in a mediation, the Evidence Code also requires that it demonstrate a present intent of the parties to be bound by the terms of the agreement.
To adopt the holding urged by Clark could result in differing, and perhaps conflicting, requirements from various local rules of court. This case provides an apt example. Here, the parties availed themselves of a mediation program offered by Live at Peace Ministries. That program yielded a mutually acceptable agreement fully consistent with the governing statutes. However, if trial courts have discretion to invalidate such otherwise valid agreements based on additional requirements of authenticity imposed by local court rules, then Live at Peace Ministries and other mediators in California would have to (1) anticipate where the mediated settlement agreement would most likely be filed and (2) understand and comply with the local rules governing the county of filing. However, parties may not know where they will file for dissolution. “[Bjecause there is no specific statute governing venue in proceedings for legal separation, the venue rules of [Code of Civil Procedure] section 395, subdivision (a), applicable to civil actions generally, govern nullity or separation actions, and the proper place for trial is ordinarily the county of respondent’s residence.” (Forster v. Superior Court (1992)
We note that even the trial court in this case did not enforce rule 30.7, excusing performance because the marital settlement agreement comported with the intent underlying the rule. It would be incongruous to ignore the statutes governing mediated agreements in order to give trial courts discretion to ignore local rules of court.
We affirm the trial court’s entry of judgment on the marital settlement agreement, but do so because rule 30.7 cannot impose requirements for enforcement of mediated settlement agreements in addition to those specified by statute. (Evid. Code, § 1123; Earn. Code, § 2550; Code Civ. Proc., § 664.6.)
Ill, IV
V
Undue Influence
In the trial court, Clark argued the marital settlement agreement is unenforceable because the mediator engaged in undue influence during the mediation. On appeal, he changes his argument to assert Anna exerted undue influence on him during the mediation. As part of his argument, he asserts Anna gained an unfair division of property because of the mediation. In so arguing, Clark acknowledges the confidentiality extended to mediation proceedings undermines his argument. Elsewhere, Clark even notes he objected to admission of evidence regarding the intent of the parties in entering into the marital settlement agreement “on the basis of mediation confidentiality.”
A.
Mediation Confidentiality
Evidence Code section 1119, subdivision (a), provides: “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” Construing Evidence Code section 1119, the California Supreme Court “conclude[d] that there are no exceptions to the confidentiality of mediation communications or to the statutory limits on the content of mediator’s reports. Neither a mediator nor a party may reveal communications made during mediation.” (Foxgate, supra,
B.
Presumption of Undue Influence
Rather than attempting to introduce evidence showing Anna actually engaged in undue influence during the mediation, Clark resorts to the rule that “ ‘[w]hen an interspousal transaction advantages one spouse, “[t]he law, from considerations of public policy, presumes such transactions to have been induced by undue influence.” ’ ” (In re Marriage of Kieturakis (2006)
“Even more importantly, to apply the presumption of undue influence to mediated marital settlements would severely undermine the practice of mediating such agreements. Application of the presumption would turn the shield of mediation confidentiality into a sword by which any unequal agreement could be invalidated. We do not believe that the Legislature could have intended that result when it provided for spousal fiduciary duties on the one hand and for mediation confidentiality on the other.” (Kieturakis, supra,
Clark contends Kieturakis was incorrectly decided but offers no explanation as to how that decision might err. In addition to urging us to reject the holding in Kieturakis, Clark also attempts to distinguish that case by noting it involved a marital settlement agreement that expressly stated it was not the product of undue influence. (Kieturakis, supra,
As Kieturakis’s survey of mediation authority shows, mediators strive to render negotiations fair and voluntary. (Kieturakis, supra,
We also reject Clark’s assertion that the mediation yielded an agreement that resulted in an unfair division of property favoring Anna. It is well settled that parties may agree in writing to an unequal division of marital property. (In re Marriage of Cream, supra,
Accordingly, we reject Clark’s undue influence argument. As Clark acknowledges, the mediation confidentiality provisions of Evidence Code section 1119 protect the mediation process and preclude any claim of undue influence. Further, there is no presumption of undue influence in marital settlement agreements reached as a result of mediation.
VI-VIII
The judgment is affirmed. Respondent Anna Woolsey shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
Hull, Acting P. J., concurred.
Notes
Mediation is “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” (Evid. Code, § 1115, subd. (a).)
For ease of reference, we refer to the parties by their first names. (See In re Marriage of Smith (1990)
Undesignated statutory references are to the Family Code.
Although titled a separation agreement, we shall refer to the document as a marital settlement agreement because it comprehensively resolved issues related to dissolution of marriage—rather than just separation. At the same time the parties entered the marital separation agreement, they also agreed on “the following public use statement,” which explained: “Clark and Anna met for four days to work towards reconciling their relationship. With God’s help, and with the desire to honor and glorify God, Clark and Anna heard each other and addressed their failures. Although they are filing for divorce, they desire to live a life of peace as they continue to serve and parent their children. Please pray for them as they grow in their relationship with God, their children, and others.”
Subdivision (d) of section 2105 provides: “The parties may stipulate to a mutual waiver of the requirements of subdivision (a) concerning the final declaration of disclosure, by execution of a waiver under penalty of perjury entered into in open court or by separate stipulation. The waiver shall include all of the following representations: HO (1) Both parties have complied with Section 2104 and the preliminary declarations of disclosure have been completed and exchanged, [f] (2) Both parties have completed and exchanged a current income and expense declaration, that includes all material facts and information regarding that party’s earnings, accumulations, and expenses. [j[] (3) Both parties have fully complied with Section 2102 and have fully augmented the preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all assets and liabilities, the valuation of all assets that are contended to be community property or in which it is contended the community has an interest, and the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability, [f] (4) The waiver is knowingly, intelligently, and voluntarily entered into by each of the parties. HO (5) Each party understands that this waiver does not limit the legal disclosure obligations of the parties, but rather is a statement under penalty of perjury that those obligations have been fulfilled. Each party further understands that noncompliance with those obligations will result in the court setting aside the judgment.”
In pertinent part, subdivision (b)(3) of section 2107 allows a party who has properly served declarations of disclosure to move for a “waiver of receipt of the noncomplying party’s preliminary declaration of disclosure pursuant to Section 2104 or final declaration of disclosure pursuant to Section 2105.”
Rule 30.7 provides:
“No property settlement agreement, or stipulation or agreement for entry of any order or judgment wherein the parties settle any issue relating to property, support, custody, visitation or paternity will be approved by the Court or incorporated by reference into a judgment without meeting the following requirements:
“A. If both parties are represented by counsel, the agreement must be signed by both parties and their respective counsel.
“B. If any one of the parties is represented by counsel, the agreement must be signed by both parties and the attorney for the represented party. The signature of the unrepresented party must be notarized, or acknowledged before a clerk of the Court under Civil Code § 1181(a) and must appear immediately after the following statement: [Effective date 7/1/01]
“ ‘The undersigned party has been advised to consult an attorney regarding the subject matter of this agreement, but has declined to do so.’
“C. If neither party is represented by counsel, the agreement must be signed by both parties. The signatures of the parties must be notarized, or acknowledged before a clerk of the court under Civil Code § 1181(a) and are to appear immediately after the following statement:
The trial court excused the notarization and admonition of counsel requirements of rule 30.7. The failure of respondent to address the trial court’s ruling excusing compliance with the admonition of counsel requirement does not govern our analysis or conclusion. It is well settled that a respondent’s failure to address a particular issue, or even to file a brief, does not determine the outcome of an appeal. (’Walker v. Porter (1974)
Section 2550 provides: “Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally.”
Evidence Code section 1123 provides: “A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: []□ (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. Q] (b) The agreement provides that it is
See footnote, ante, page 881.
See footnote, ante, page 881.
Concurrence Opinion
I concur in the result.
I write separately because I disagree with the majority’s analysis in part II of the Discussion, in which the majority invalidates a local rule of court in its entirety.
The majority invalidates the Superior Court of Placer County, Local Rules, rule 30.7 (local rule 30.7), which provides that no marital settlement agreement (MSA) involving an unrepresented litigant “will be approved” unless the unrepresented party’s signature is notarized or acknowledged by the clerk,
I conclude that it is unnecessary to reach the validity of the rule, because the trial court impliedly found that the interest of justice requires that the rule not be applied here. Furthermore, the notary requirement is not inconsistent
I. Excusing Noncompliance with a Local Rule of Court
Clark complains that “[u]nder the plain language of Local Rule 30.7, the trial court had no authority to approve the [MSA] or the provisions therein,” and the trial court violated the rule by entering a judgment based on an MSA that does not comply with the rule.
Our high court long ago observed, “Rules of Court should be framed in furtherance of justice; but they may sometimes, if strictly adhered to, work the other way. They are always under the control of the Court, and if there is any reason to apprehend the latter result, they should be made to yield to the superior calls of justice.” (People v. Williams (1867)
The Supreme Court has never retreated from this view. To the contrary, the rule was reinforced in Mann v. Cracchiolo (1985)
I would apply this venerable principle here. I conclude that the trial court had the authority to excuse noncompliance with local rule 30.7 because it was in the obvious interests of justice to do so. Indeed, similar to Mann, under the circumstances of this case, it would have been an abuse of discretion for the trial court to apply the local rule to invalidate the MSA. There was no dispute as to whether each party signed the MSA; to the contrary, both parties acknowledged that the signatures on the MSA were theirs. Thus, as the trial court noted, the purpose of the notary requirement—to establish that the signatures are genuine—was fulfilled. Further, the Rules of Procedure for Christian Conciliation required that the parties be advised of their right to counsel, and that was done here before the parties entered into the agreement.
In my view, the trial court’s ruling is appropriately affirmed on this basis. We need not reach the underbriefed issue of the validity of the local rule.
II. Validity of Local Rule of Court 30.7
Anna contends that the notary requirement in local rule 30.7 conflicts with Code of Civil Procedure section 664.6. (See fn. 7, post.) As in the trial court, no other theories for invalidating the rule have been advanced in Anna’s appellate briefing; she does not cite other portions of the rule which purportedly conflict with the statute and she cites no other statutes.
Government Code section 68070, subdivision (a) authorizes local courts to establish rules that are “not inconsistent’ with statute. (Italics added.) Accordingly, “local courts may not create their own rules of evidence and procedure in conflict with statewide statutes.” (Elkins, supra,
However, our high court long ago observed in Butterfield v. Butterfield (1934)
Despite the fact that Anna has contended in this appeal only that the notary requirement of the rule conflicts with Code of Civil Procedure section 664.6, the majority invalidates local rule 30.7 in its entirety on the basis that the rule imposes requirements in addition to those set forth in three statutes, two of which were not asserted by Anna: (1) Family Code section 2550,
A. Validity of the Notary Requirement
The majority invalidates local rule 30.7 on the ground that it imposes requirements in addition to Family Code section 2550 and Code of Civil Procedure section 664.6.
Family Code section 2550 (see fn. 6, ante) begins, “Except upon the written agreement of the parties.” (Italics added.) Code of Civil Procedure section 664.6 (see fn. 7, ante) provides in pertinent part, “If parties to pending litigation stipulate, in a writing signed by the parties . . . .” (Italics added.) As can be seen by the italicized language, a necessary predicate to
As the trial court noted, the purpose of the notary requirement for unrepresented parties in local rule 30.7 is to ensure that the signatures are genuine. This gives the court assurance that an unrepresented party actually agreed to a written settlement and that a signature has not been forged. It also prevents an unrepresented party from seeking to invalidate the agreement by fraudulently claiming not to have been the person who signed the agreement.
In Butterfield, a trial court presiding over an action for divorce denied the defendant’s motion for change of venue on the ground that the defendant failed to file points and authorities as required by a local rule of court. On appeal, the defendant contended that because the Code of Civil Procedure provision governing venue did not require points and authorities, invoking the local rule against him deprived him of a statutory right. Our high court wrote, “It is true that a rule inconsistent with a statute can have no validity; but the mere fact that the rule goes beyond the statutory provision does not make it inconsistent therewith.” (Butterfield, supra,
Likewise, parties have the right to a court’s acceptance of a written MSA under Family Code section 2550 and also have the right to avail themselves of Code of Civil Procedure section 664.6, but only upon a proper showing to the court’s satisfaction that both parties have actually agreed to the MSA. It can hardly be argued that either party is entitled to have the court blindly approve an MSA in the absence of a showing that both sides have actually agreed to the written agreement presented to the court. Like the rule in Butterfield, the notary requirement in local rule 30.7 goes beyond the statutory provisions, but the rule is not inconsistent with statute. Rather, the rule is a reasonable provision in furtherance of the statutory purpose.
The majority cites several cases related to Family Code section 2550, a statute not identified by Anna in the trial court or on appeal, as in conflict with local rule 30.7. These cases are cited for the proposition that under Family Code section 2550, a trial court “must” accept written or oral stipulations of the parties concerning the division of property, even if the division is lopsided; “[t]he court’s ‘only role with regard to a proper stipulated disposition of marital property is to accept the stipulation and, if
Similar to Family Code section 2550, the plain language of Code of Civil Procedure section 664.6 (see fn. 7, ante) requires the trial court to determine that the parties have agreed to the stipulated resolution. Indeed, the statutory language, “signed by the parties,” must be read as a requirement that the trial court assure itself that the written agreement has been signed by both parties. Thus, while Code of Civil Procedure section 664.6 provides an expeditious method of enforcing agreements, the trial court cannot blindly accept the agreement. As the majority notes, “ ‘The Legislature created [the section 664.6] procedure to benefit not only parties but also the justice system, relieving it of the burden of more time-consuming and expensive processes.’ (Provost v. Regents of University of California (2011)
The majority acknowledges the Butterfield rule, which allows courts to enact local rules that go beyond the provisions related to statute as long as any such rule is “a reasonable provision in furtherance of the statutory purpose.” (Butterfield, supra,
The thrust of the majority’s opinion is that local rule 30.7 is invalid because it imposes requirements in addition to those required by statute. Invalidating a rule solely on this basis is unprecedented and contrary to statutory and decisional law, which allow local rules that are not inconsistent with statute. The ramifications for the rule of law announced by the majority are far reaching. The majority cites two cases for its “in addition to” rule, Hogoboom v. Superior Court (1996)
Hogoboom involved a local rule that imposed fees for mediation services. That case was decided on two grounds: preemption and traditional statutory interpretation. In holding that the local fee rule was preempted by state law, the Hogoboom court noted a number of statutes and legislative history evincing legislative intent to occupy the field of court fees. Accordingly, the Hogoboom court invalidated the local rule because it imposed a requirement in addition to state statute, but the requirement was additional fees beyond those authorized by statute. (Hogoboom, supra, 51 Cal.App.4th at pp. 656-669.)
The Hogoboom court also noted that Government Code section 68070, subdivision (a)(1) expressly prohibits a court from enacting local rules which impose “ ‘any . . . charge . . . upon any legal proceeding.’ ” (Hogoboom, supra,
Hogoboom does not support a blanket prohibition of local rules that impose requirements in addition to statute.
The addition made in Conae was not just in addition to statute, it was also inconsistent with statute. The trial court’s requirement that the order to show cause be served on the opposing party conflicted with Code of Civil Procedure section 1015, which provided that when a party is represented, service must be “ ‘upon the attorney instead of the party.’ ” (Conae, supra,
In Henry, this court reversed a trial court order denying a change of venue motion. {Henry, supra, 60 Cal.App. at pp. 245, 252.) The opposing party objected in the trial court based on several grounds, one of which was that the motion had not been calendared on a regular law and motion day designated by a local rule of court. {Id. at p. 248.) This court wrote, “As to the objection to the hearing of the motion on the ground that it was not made on a regular law day, fixed by the rules of the superior court of Siskiyou County, the answer is that the rules of the courts cannot be invoked to control or be substituted for statutory provisions as to procedure.” {Henry, supra,
When possible, rules of court should be construed in a manner that maintains their consistency with statutory requirements. {Trans-Action, supra,
Our high court noted in Elkins, “[a] common theme in the appellate decisions invalidating local rules ... is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.” (Elkins, supra,
As the Judicial Council’s Elkins Family Law Task Force
B. Right to Counsel Admonition
I decline to comment on the validity of the right to counsel admonition component of local rule 30.7. As I have noted, Anna did not assert an alleged conflict involving this component of the rule in the trial court; therefore, the trial court was deprived of the opportunity to rule on this matter.
Moreover, even if this theory is not forfeited because of Anna’s failure to assert it both in the trial court and on appeal, I do not see how we can ground our opinion on the issue of a conflict between the right to counsel admonition component of the rule and the aforementioned statutes without affording the parties an opportunity to provide supplemental briefing. (See Gov. Code, § 68081 [before an appellate court renders a decision based upon an issue that was not proposed or briefed by any party to the proceeding, “the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing” (italics added)].)
I agree that the trial court appropriately approved the MSA on the ground that it had the authority to do so in the interest of justice, notwithstanding that the MSA did not strictly comply with local rule 30.7. I disagree with the majority’s invalidation of local rule 30.7 and concur in all other respects.
A petition for a rehearing was denied November 14, 2013, and appellant’s petition for review by the Supreme Court was denied January 15, 2014, S214936.
The rule provides these two means of verifying that signatures on a written agreement are, in fact, those of the parties. I shall refer to both means collectively as “the notary requirement.”
I shall refer to this requirement as “the right to counsel admonition.”
Under the heading in Anna’s brief, “AN AGREEMENT NEED NOT BE NOTARIZED TO BE ENFORCEABLE,” Anna’s entire argument on this issue on appeal is, “The local rule is in conflict with CCP 664.6 and must yield to it. Elkin [sz'c] v. Superior Court (2007)
Anna’s argument in the trial court concerning the validity of local rule 30.7 was set forth in her written closing argument after hearing. The entire argument reads, “The local rule requiring notarization or attorney signature conflicts with CCP 664.6 and must yield to it. (Elkin [sic] v. Superior Court[, supra,]
See Estate of Cooper (1970)
While Clark points out the right to counsel admonition requirement in his effort to invalidate the MSA based on noncompliance with the rule’s requirements, Anna does not assert that that portion of the rule conflicts with statute. Anna only cites the notary requirement as conflicting with statute.
Family Code section 2550 provides, “Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally.” (Italics added.)
Code of Civil Procedure section 664.6 provides in pertinent part, “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.” (Italics added.)
The majority references Evidence Code section 1123, but does not explain how local rule 30.7 is inconsistent with that statute. (Maj. opn., ante, at pp. 898-899.) As Evidence Code section 1123 governs only the admissibility of a written mediated settlement agreement, not a judgment entered pursuant to an agreement, I see no inconsistency with local rule 30.7. The admissibility of a mediated settlement agreement is not affected by local rule 30.7, which applies to the court approving an agreement for purposes of a judgment. Consequently, I will not address Evidence Code section 1123 further here.
There is a second reason for concluding that local rule 30.7 is not inconsistent with Code of Civil Procedure section 664.6. Unlike Family Code section 2550, a court is not required to accept a stipulated judgment under Code of Civil Procedure section 664.6. Code of Civil Procedure section 664.6 clearly states the court “may” accept the stipulated judgment. (See fn. 7, ante.) A “ ‘court cannot surrender its duty to see that the judgment to be entered is a just one, nor is the court to act as a mere puppet in the matter.’ ” (California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990)
In fact, there is only one published case citing Conae in the context of conflicts with local rules of court. In Albermont Petroleum, Ltd. v. Cunningham (1960)
The Supreme Court suggested establishment of the task force in Elkins. (Elkins, supra, 41 Cal.4th at pp. 1346, 1369, fn. 20.) The court noted, “Such a task force might wish to consider proposals for adoption of new rules of court establishing statewide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions.” (Id. at p. 1369, fn. 20.)
This is no small matter. On one hand, the trial court may have agreed that the right to counsel admonition is inconsistent with statute, in which case the expenditure of considerable judicial resources by this court on the matter would have been avoided. On the other hand, a trial court’s ruling finding no conflict between the rule and statute would have provided this court with the trial court’s insight and a better record upon which to mle on the matter. (See Elkins, supra, 41 Cal.4th at pp. 1365-1369 [respondent court’s arguments in favor of the court’s local rule and the Supreme Court’s response to those arguments].) In any event, the trial court should not be bypassed. It should be given the first opportunity to weigh in on issues related to its own local rules.
Also, as I have noted, Anna has never invoked Family Code section 2550 or Evidence Code section 1123 as statutes with which the local rule conflicts.