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Case of the Month Archive

May 2019

Form’s check box is sufficient “writing” to represent parties’ agreement. . .


In reversal, Fourth District holds that divorcing parties expressed their agreement to waive application of Fam C §4337 provision for termination of spousal support on remarriage by failing to check the applicable box on form SB-12035


In re Marriage of Martin

(March 11, 2019)

California Court of Appeal 4 Civil E069481 (Div 2) 32 Cal.App.5th 1195, 244 Cal.Rptr.3d 559, 2019 FA 1879, per McKinster, Acting PJ (Codrington and Raphael, JJ, concurring). San Bernardino County: Daniel, Temp J, reversed. For appellant: Thomas Shinton, (909) 642-4242. For respondent: Ronald Funk, CALS, (888) 249-7560. CFLP §F.81.5.8.


Craig and Cynthia Martin were married in January 2004 and separated on February 1, 2013. Six months later, Craig filed for divorce. The couple, with the help of “‘the man who did the paperwork’” but without the aid of counsel, reached a settlement, which they filed using Judicial Council form FL-180 and attaching San Bernardino County local court form SB-12035, which set forth the particulars of their agreement. As filed on December 2, 2013, the disso judgment required Craig to pay $1,000 a month to Cynthia for spousal support, beginning on October 1, 2013 and continuing to August 1, 2017. The parties did not check the box next to the statement that they agreed that spousal support would terminate on the death of either party or the remarriage of the supported party


Craig later learned that Cynthia had remarried in November 2011. He then filed a request for reimbursement of overpaid spousal support, claiming that his obligation had ceased on Cynthia’s remarriage. At a hearing on August 18, 2017, Cynthia testified that she understood she would receive four years of spousal support payments, based on one-half of the length of her marriage to Craig, and he would receive their home and his CalSTRS and CalPERS retirement benefits. When asked if the spousal support payments were intended as a form of equalizing payment, Cynthia said, “‘Pretty much.’” Craig did not testify.


When the hearing concluded, the trial court found that the language in the disso judgment did not constitute an explicit waiver of Fam C §4337 spousal support termination requirements regarding a writing, as interpreted in case law. The court concluded that Craig’s spousal support obligation terminated on November 11, 2014, when Cynthia remarried, and ordered her to pay him $37,000 for overpaid spousal support within 90 days, plus$2,700 for attorney’s fees as a sanction, at a rate of $100 a month, starting December 1, 2017.


Cynthia appealed, and the Fourth District reversed.


In the proper form. . .
Cynthia argued that the trial court erred in concluding that the disso judgment did not contain an explicit written waiver of Fam C §4337 requirements re termination of spousal support. The justices agreed. They reiterated that this statute provides that a spousal support obligation terminates on the death of either party or the supported spouse’s remarriage, except as otherwise agreed to by the parties in writing. However, they noted that applicable case law does not require any specific wording. Moreover, the form SB-12035 that the parties had used for their disso judgment is modeled after FL-143 and approved by Judicial Council for optional use. As with FL-143, the panel noted, SB-12035, contains a box for the parties to check to indicate that the agreed-upon spousal support will terminate on the death of either party, the remarriage of the supported spouse, or registration of a new domestic partnership of the supported spouse. It was that box that the parties failed to check.


The thorns in Thornton . . .
The justices noted that the lower court had relied on the requirements set forth in In re Marriage of Thornton (2002) 95 Cal.App.4 th 251, 115 Cal.Rptr.2d 380, 2002 CFLR 8953, 2002 FA 1031, where the court stated that divorcing parties must expressly state in writing that spousal support will terminate on remarriage in order to have Fam C §4337 apply. However, they thought that reliance was “misplaced.” The panel reasoned that the requirement for an express statement was discredited in In re Marriage of Cesnalis (2003) 106 Cal.App.4 th 1267, 131 Cal.Rptr.2d 436, 2003 CFLR 9289, 2003 FA 1087. There, they explained, the appellate court found that no particular words are needed in the written agreement re spousal support termination on remarriage and that extrinsic evidence is admissible to resolve the waiver question if there is language in the written agreement that could be interpreted as an intent to have support continue beyond remarriage. Requiring an express statement, the Cesnalis court found, went beyond the requirements of Fam C §4337 and goes against the finding that no particular words are needed. The panel here found this analysis by the Cesnalis court both applicable and persuasive.


Proving a negative. . .
The justices also noted that although the lower court found that form SB-12035 is an agreement between the parties, the fact that a box was left unchecked was not a sufficient writing to constitute a waiver. They found, however, that the check box was a “sufficient ‘writing’ to represent the parties’ agreement to waive” Fam C §4337. Summing up, the justices concluded that the parties expressed their agreement to waive application of Fam C §4337 by choosing not to check the applicable box on form SB-12035, and the trial court erred in finding otherwise. Accordingly, the panel reversed the trial court’s order.





The justices here opine that forms SB-12035 and FL-343 “leave a lot to be desired,” and suggest that Judicial Council and local forms be revised to require the parties to affirmatively opt out of the application of Fam C §4337, instead of checking a box to affirmatively opt-in to its application. We agree. The parties here prepared their pleadings with the help of someone who did their paperwork, as is frequently the case with do-it-yourself dissos. The panel characterizes their actions as choosing to leave the box unchecked, but it is also likely that they simply overlooked it or didn’t understand the statute or the need to opt-in. Moreover, as family law attorneys, we like to think that something like this wouldn’t happen if the parties had been represented by counsel, and 99.9% of the time, that is true. However, we’re not immune to overlooking a box to check; a change in the form would help us too.



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