FLIER

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BD 203321)

APPEAL from an order of the Superior Court of Los Angeles County, Rafael Ongkeko, Judge. Affirmed.

Law Office of John Drooyan and John N. Drooyan for Appellant.

Trope and Trope, Thomas Paine Dunlap and Brian P. Lepak for Respondent.

Appellant Maritza Rivera Grier and Respondent David Alan Grier dissolved their marriage pursuant to a stipulated judgment in 2001. In 2009, Maritza filed a postjudgment order to show cause and application for order (OSC) relating to sums she contends she is owed under the stipulated judgment. The court denied some of the requested relief but ordered David to pay certain sums. Maritza appeals from the court's post judgment order. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Maritza and David were married on July 17, 1987. The parties disputed the date of separation. David contended that they separated on July 17, 1994. Maritza contended that they separated on October 24, 1994. The record does not disclose the date that David commenced the dissolution action, but Maritza was served with process on November 15, 1994. The court entered the stipulated judgment of dissolution on December 7, 2001.

On May 15, 2009, Maritza filed the OSC seeking (1) an accounting of residuals for certain projects specified in the judgment in which David -- an actor -- had participated, and (2) an accounting of all deferred income accounts held with Oppenheimer and Co., Inc., and accruing during the marriage. Maritza contended that she was entitled to both under the stipulated judgment. The court held a hearing on Maritza's OSC on February 9, 2010. On June 29, 2010, the court issued an order denying an accounting of residuals, denying an accounting of the Oppenheimer IRA, and denying Maritza's request for attorney fees and costs. The court found that an accounting of residuals and the Oppenheimer IRA was unnecessary because the evidence in the proceedings showed the amounts owed to Maritza for each. The court ordered David to pay Maritza $14,118.18 for her share of residuals and $1,709.88 for her share of the Oppenheimer IRA.

Maritza filed a timely notice of appeal on August 27, 2010. She challenges the trial court's ruling that she was not entitled to an accounting of residuals and its findings of the amounts due to her. Her appellate briefs do not address the denial of attorney fees and costs. We therefore deem the issue forfeited. (In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1085, fn. 1.)

STANDARD OF REVIEW

Unless a more specific statute provides otherwise, agreements between spouses, such as the stipulated judgment here, are construed under the rules governing the interpretation of contracts generally. (In re Marriage of Benjamins (1994) 26 Cal.App.4th 423, 429.) Thus, the interpretation of the effect of a stipulated judgment is a question of law reviewed de novo, so long as the interpretation does not turn on the credibility of extrinsic evidence. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520; In re Marriage of Benjamins, supra, at p. 429.)

We review the trial court's factual findings, including the proper amounts to be paid to Maritza, under the substantial evidence standard. (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1584.) We determine whether there is any substantial evidence, contradicted or uncontradicted, which will support the trial court's findings. (In re Marriage of Guo & Sun (2010) 186 Cal.App.4th 1491, 1497.) We must review the whole record in the light most favorable to the order below to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find as the trial court did. (In re Angelia P. (1981) 28 Cal.3d 908, 924.)

DISCUSSION

1. The Trial Court Did Not Err in Determining the Amount Owed to Maritza from the Oppenheimer IRA

Maritza contends that the trial court erred because its determination of the amount she was owed from the Oppenheimer IRA was based on the IRA's value on the wrong date. She contends that she is due half the value of the Oppenheimer IRA as of October 24, 1994, the date she asserts the parties separated. The trial court's award was based on half the value of the IRA as of July 17, 1994, a date at which the court arrived by interpreting various provisions of the stipulated judgment. We hold that the trial court did not err.

The stipulated judgment expressly addresses division of the Oppenheimer IRA, and it clearly provides that the parties divide it as the trial court ordered. Regarding the date of separation and division of assets, paragraph I.2. of the stipulated judgment states as follows:

"[David] contends that the parties separated on July 17, 1994. [Maritza] contends that the parties separated on October 24, 1994. [David] and [Maritza] have resolved their disputes but in doing so they have not made a determination as to the date of separation. In arriving at characterization, valuation and division of assets whether community or separate, the parties have reached an agreement by way of compromise. Reference hereafter to date of separation was done by way of comparison with respect to the existence and valuation of all financial issues but without regard to which of either dates was the actual date of separation."

"[David] and [Maritza] have acknowledged that disputed claims have existed as to what constitutes their community [property], quasi-community property, and separate property. Each of the parties has made conflicting claims regarding the value of said community property. Pursuant to stipulation the parties have resolved such issues and have agreed that their property (regardless of how characterized) shall be divided between them as set forth below." (Italics added.)

The stipulated judgment goes on to expressly provide that Maritza is to receive one-half the value of the Oppenheimer IRA as of July 17, 1994: "Respondent [Maritza] is awarded the following as her sole and separate property . . . : [¶] . . . [¶] One-half (1/2) employee and employer contributions and accumulations into the [Oppenheimer IRA] between date of marriage and July 17, 1994, standing in [David's] name and under [David's] control." Moreover, the judgment states that "[p]re-marital and post-separation (July 17, 1994) contributions and accumulations in the [Oppenheimer IRA] standing in the name of [David]" are the "sole and separate property" of David.

Accordingly, while Maritza may not have agreed that July 17, 1994, was the actual date of separation, she clearly and unambiguously agreed to use that date as the reference point for dividing the Oppenheimer IRA (and, we note, virtually all other assets discussed in the stipulated judgment). Maritza contends that the stipulated judgment amounted to a waiver of her community property interest in the Oppenheimer IRA, and as such, it was invalid pursuant to Family Code section 852, subdivision (a). That section deals with transmutation of property and provides: "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." (Fam. Code, § 852, subd. (a).) Assuming for the sake of argument that the stipulated judgment is subject to section 852, it meets these requirements. At the beginning of the judgment, it expressly states that, although the parties disputed what constituted community, quasi-community, and separate property, they resolved such disputes and agreed to divide their property as set forth in the judgment. The judgment is in writing and was consented to by Maritza, as evidenced by her signature and that of her attorney's on it. Family Code section 852 does not invalidate the stipulated judgment, and the judgment clearly provides that Maritza is owed half the value of the Oppenheimer IRA as of July 17, 1994.

2. The Trial Court Did Not Err in Determining the Amount of Residuals Owed to Maritza

Maritza contends that the trial court erred in awarding her only $14,118.18 in unpaid residuals, and that she is actually entitled to an additional $2,389.06 for certain episodes of the television shows Martin and Saturday Night Live in which David appeared. Again, we disagree.

Regarding residuals, the stipulated judgment provides as follows in section II.1.E.1):

"To further equalize the division of community property the parties hereby acknowledge that between the date of marriage (July 17, 1987) and July 17, 1994, [David] performed acting services in television episodes and motion pictures and [David] may in the future receive monies by way of future residuals, royalties and other forms of compensation from the following projects in which the community has an interest, as follows: [¶] 1) Television: [¶] . . . [¶] (b) Martin Lawrence - Pilot [¶] . . . [¶] (g) Saturday Night Live"

The stipulated judgment goes on to provide that future residuals, royalties, and other forms of compensation received subsequent to the entry of the judgment for "acting services rendered by [David] during marriage in connection with all community episodes of the above-referenced television episodes and motion pictures, as listed in Sections II[.1.](E)(1) & (2) herein, . . . are ordered divided equally between the parties, net of taxes." To the same effect, the stipulated judgment provides that Maritza is awarded as her sole and separate property "[o]ne-half (1/2) of any and all future residuals, royalties and other forms of compensation" received "subsequent to the entry of the herein Judgment and in connection with acting services provided by [David] associated with community projects listed in Sections II.[1.]E (1) and (2) above . . . ."

Finally, the stipulated judgment provides:

"From the date of this Judgment, [David] and [Maritza] shall each own and hold the property received by him or her respectively, by the terms hereof, and likewise all salaries, earnings and other property acquired by each of them after July 17, 1994, respectively, as his or her sole and separate property, as the case may be, free from any claim of the other by reason of the community property laws of the State of California, or by reason of any other law or fact."

Maritza's argument is unavailing in light of these provisions of the stipulated judgment and the evidence produced in the lower court by David's business manager. David filed a sworn declaration from his business manager, Alan Tivoli, explaining how he had determined that Maritza was entitled to $14,118.18 in unpaid residuals. Tivoli's declaration and an attached exhibit showed that he included only the pilot episode of Martin in the amount due to Maritza. He stated that David appeared in other episodes of Martin after the date of separation, and these were not included in the amount owed to Maritza. Maritza claims that she has an interest in residuals from the later episodes of Martin. This is incorrect. The stipulated judgment expressly states that only the pilot of the Martin show is a project in which the community has an interest.

Along the same lines, Tivoli's declaration shows that the calculation of the amount due to Maritza included only one episode of Saturday Night Live, while David appeared in two more episodes after the judgment date of December 7, 2001. This is appropriate. The stipulated judgment provides that Maritza has an interest in only the "community episodes" of Saturday Night Live, and anything completed after the date of judgment would not have been a "community episode." Maritza claims that the court should not have accepted Tivoli's statement because he did not provide evidence of the exact dates of the Saturday Night Live performances, and his statements should not be trusted without supporting evidence. To the contrary, Tivoli's declaration was sufficient evidence to support the trial court's findings. Tivoli stated that he has been David's business manager for more than 20 years, and in addition, his office receives most of the deposits to David's corporate and personal accounts and makes the required disbursements therefrom. Tivoli was in a position to know when the Saturday Night Live performances had occurred. Furthermore, Maritza does not provide any conflicting evidence to show that the Saturday Night Live appearances occurred before the judgment. She simply claims that "perhaps" one or more of these appearances occurred earlier. The trial court did not err in relying on Tivoli's declaration and his calculation of the amount due to Maritza.

3. The Trial Court Did Not Err in Denying Maritza's Request for an Accounting

Maritza next contends that Tivoli's calculation of the residuals owed to her did not include community property residuals for 2009. She thus asserts that the trial court should have ordered David to provide an accounting of all community property residuals for 2009, and further, that it should have ordered David to provide accountings for 2010 and for every year in the future in which David receives community property residuals. Once again, we disagree.

The stipulated judgment provides that David "is ordered to provide an accounting and distribution" of the community property residuals owed to Maritza "on the earlier of March 1 of every year or sixty (60) days after such time as the total amount" of residuals being held exceeds $30,000. Maritza filed the OSC papers on May 15, 2009. The court held the hearing on the OSC on February 9, 2010. The court adopted its tentative ruling at the February 9 hearing, and it later converted the ruling into a formal order at Maritza's written request. The efforts of the parties in their papers were focused on demonstrating the residuals owed to Maritza in prior years, and the trial court's ruling was focused on accountings for prior years. The court's order recognized that David had not provided accountings for the prior years, but it denied Maritza's request for accountings because the evidence adduced in the proceedings had eliminated the need for the accountings. At the hearing on the OSC, Maritza made no mention of an order regarding accountings for future years.

It is perhaps unsurprising that Maritza did not request the specific accountings she now claims the court erred in failing to order at the time of the court's ruling on February 9, 2010, the accountings were not yet due. An accounting for community property residuals for 2009 would have been due on March 1, 2010, or possibly earlier in 2010 if the residuals being held exceeded $30,000. There is no evidence in the record suggesting that an earlier accounting was due because the $30,000 threshold had been reached. Even if an accounting for 2009 were then late, accountings for 2010 and later years were certainly not late when the court ruled on February 9, 2010.

Maritza is claiming essentially that the trial court should have granted her declaratory relief when there was no "'"genuine and existing controversy, calling for present adjudication as involving present rights."'" (Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1111, quoting Young v. Young (1950) 100 Cal.App.2d 85, 86.) When no present controversy exists, a trial court may refuse to grant declaratory relief because "its declaration or determination is not necessary or proper at the time under all the circumstances." (Code Civ. Proc., § 1061; see also Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 647 [declaratory relief properly refused where resolving controversy over future remedies would have had little practical effect].)

In short, the record does not disclose that Maritza brought a request specifically for future accountings to the trial court's attention. Even if she did, the trial court did not err in failing to order accountings that were already ordered by the stipulated judgment but not yet due.

DISPOSITION

The postjudgment order is affirmed. Respondent is to recover costs on appeal.

FLIER, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.