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In Re the Marriage of Joanne and Benjamin Guilardi. v. Benjamin Guilardi

November 7, 2011

IN RE THE MARRIAGE OF JOANNE AND BENJAMIN GUILARDI. JOANNE LAFARGUE-GUILARDI, APPELLANT,
v.
BENJAMIN GUILARDI, RESPONDENT.



(Santa Clara County Super. Ct. No. FL126383) Trial Court: Santa Clara County Superior Court Trial Judges: Hon. Marc B. Poche and Hon. L. Michael Clark

The opinion of the court was delivered by: Elia, J.

CERTIFIED FOR PUBLICATION

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 a marital settlement agreement (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 sections 2100, et. seq.*fn1 Her motion was denied in a July 28, 2009 decision (later subjected to minor correction) reflecting the court's finding that while the MSA was "inequitable on its face," that fact was insufficient to invalidate the agreement, as wife had "knowingly and willingly" entered into it. Not only had Wife failed to meet her burden to prove fraud, mistake, or duress, but she had intentionally destroyed the parties' prenuptial agreement to prevent its enforcement because she believed it was unfair. Although she was unaware of her right to spousal support, she knew she had the right to consult an attorney before signing the MSA; she chose not to do so, for "reasons known only to her."

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 declare the entire prenuptial agreement void. The court found that Wife had had the ability to pay for an independent consultation with an attorney regarding the agreement, and that she had not asked Husband to pay for such services. Wife had also failed to prove unconscionability.

On July 23, 2009, Wife sought $157,650 in attorney fees for the "prosecution of her statutory and non-contractual 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.*fn2

Discussion

Family Code 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. Subdivision (a) requires 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 partys' rights." (§ 2030, subds. (a)(1), (a)(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, present, and future claims.' " The court also rejected Wife's assertion that a relinquishment of future claims could never preclude need-based fees. Finally, the court concluded that even if the MSA allowed fees under section 2030, it was "not just to award attorney's fees to Wife where she unsuccessfully litigated an action to set aside the MSA, and was found to have willfully destroyed the pre-marital agreement."

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 Marriage of Sherman (1984) 162 Cal.App.3d 1132, 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.*fn3 We further observe that judicial authority has not been universally consistent on the question of whether statutory counsel fees are available to the party unsuccessfully challenging an MSA. Some decisions foreclose recovery of statutory need-based fees when a valid settlement agreement contains either an explicit or an implied waiver of future claims. (See, e.g., Fox v. Fox (1954) 42 Cal.2d 49, 53 [court erred in awarding fees contrary to valid agreement expressly waiving additional attorney fees], Lesh v. Lesh (1970) 8 Cal.App.3d 883 [same, citing Fox]; Gottlieb v. Gottlieb (1957) 155 Cal.App.2d 715, 720 [denial of wife's statutory fees upheld based on explicit waiver in settlement agreement]; Taliaferro v. Taliaferro (1962) 200 Cal.App.2d 190, 198 [implied waiver of fees in broad language of intent to settle "all claims between them"]; Grolla v. Grolla 151 Cal.App.2d 253, 260 [implied waiver of costs and fees].) Others have avoided the preclusive effect of settlement provisions waiving all future claims by allowing fees to prove invalidity of the agreement, particularly when that fact has not yet been ascertained. (See, e.g., Locke Paddon v. Locke Paddon (1924) 194 Cal. 73, 78-80 [notwithstanding settlement releasing each party from claims for attorney fees, court may award fees even if invalidity not proved]; Spreckels v. Spreckels (1952) 111 Cal.App.2d 529, 532 [pendente lite fees justified where validity and effect of settlement agreement had not yet been determined]; compare Patton v. Patton (1948) 32 Cal.2d 520, 525 [where wife did not object to validity of agreement, court erred in awarding alimony and statutory counsel fees]; Nacht v. Nacht (1959) 167 Cal.App.2d 254, 268 [wife entitled to need-based statutory fees to challenge continued existence or validity of agreement after reconciliation, "whether she is right or wrong"].)

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 "[r]elinquish 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, ...


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