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In Re the Marriage of Robert Mckenzie Mead and Carolyn Inez Williams-Mead. v. Carolyn Inez Williams-Mead

September 17, 2012

IN RE THE MARRIAGE OF ROBERT MCKENZIE MEAD AND CAROLYN INEZ WILLIAMS-MEAD. ROBERT MCKENZIE MEAD, APPELLANT,
v.
CAROLYN INEZ WILLIAMS-MEAD, RESPONDENT.



(Super. Ct. No. 03FL03504)

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

Marriage of Mead and Williams-Mead

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After 12 years of marriage, appellant Robert McKenzie Mead (Robert) and respondent Carolyn Inez Williams-Mead (Carolyn) divorced. As sometimes happens, the divorce settlement spawned lengthy, acrimonious litigation, including a prior appeal to this court. (In re Marriage of Mead and Williams-Mead (Nov. 1, 2007, C052999) [nonpub. opn.] (Mead I).)

The saga continues. The trial court, following the prior appeal, issued an order for appearance and examination of judgment debtor Robert to aid in the collection of a $50,000 equalizing payment to Carolyn. Robert filed a motion to vacate the examination and a motion to vacate the underlying judgment, both of which the trial court denied.

Robert, proceeding in pro. per., appeals the denial of both motions. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND -- Prior Appeal*fn1

The couple married in 1992. Exactly 12 years later to the day, on December 9, 2004, they stipulated in court to the terms of a marital settlement agreement (agreement). Both were represented by counsel.

The court ascertained that Robert understood the terms of the agreement and stated the agreement was enforceable as a judgment under Code of Civil Procedure section 664.6.*fn2 The dissolution judgment incorporating the agreement was filed on March 8, 2005.

Three months after stipulating to the agreement, Robert had not signed a formal marital settlement agreement. At a compliance review hearing in March 2005 the court entered judgment under section 664.6. The court adopted the agreement prepared by Carolyn's attorney. Robert had signed this agreement, writing next to his signature, "under judicial order." Robert claims the court clerk told him the court ordered him to sign the agreement. A veritable blizzard of litigation followed.

First Motion to Vacate

Shortly thereafter, Robert filed a motion to vacate the judgment, arguing paragraph 8 of the agreement conflicted with the parties' oral stipulation. The parties orally stipulated on December 9, 2004, that: "Husband is awarded, as his sole and separate property, the home on Spring Azure Way and will pay to wife $50,000 as an equalization payment. He will pay that within 90 days with no interest. [¶] He has the option not to pay her within 90 days, but to give her a promissory note in the sum of $50,000, payable in five years, interest only at 7 percent, monthly payments secured by a deed of trust on the home."

During the oral stipulation, the court repeated the agreement. The court stated: "He's agreeing to give her an equalization payment of $50,000 for 90 days, there's no interest and he can pay it. If he doesn't pay it within 90 days then he is obligated to do a promissory note secured by a second deed of trust at 7 percent. [¶] Starting when?" Carolyn's attorney responded: "Today." Robert's attorney agreed. The court later reiterated the interest began accruing that day, and Robert's counsel again answered in the affirmative.

Paragraph 8 of the agreement states, in pertinent part: "Husband is awarded as his sole and separate property the home located at . . . Spring Azure Way . . . . Husband shall pay to Wife the sum of $50,000 as equalization . . . . The $50,000 shall be paid by Husband to Wife within ninety (90) days of December 9, 2004, or by March 9, 2005 without interest. If said sum is not paid . . . on or before March 9, 2005 then interest shall be due at the rate of seven percent . . . . If Husband does not pay the $50,000 by March 9, 2005 he shall execute a promissory note secured by deed of trust including the above terms."

In the motion to vacate, Robert argued the parties stipulated to giving him 90 days to pay without interest, providing him with time to refinance. Therefore, according to Robert, the 90 days could not begin to run unless Carolyn first conveyed title to the family home to him. Paragraph 8 incorrectly provided that the 90 days would begin to run on December 9, 2004, making him liable for interest from that date if he failed to pay Carolyn by March 9, 2005.

Carolyn argued the oral stipulation made no mention of allowing Robert 90 days to refinance, nor did the parties agree she had to convey title before the time began to run. Instead, the oral stipulation, made on December 9, 2004, simply states that Robert "will pay that [equalization payment] within 90 days." If Robert chose to give Carolyn a promissory note, interest would begin to accrue on December 9, 2004.

The court denied Robert's motion to vacate the judgment. Robert did not appeal the judgment or the ...


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