In re: Marriage of Armato

Citation88 Cal.App.4th 1030,106 Cal.Rptr.2d 395
CourtCalifornia Court of Appeals
Decision Date02 May 2001
Parties(Cal.App. 2 Dist. 2001) In re the Marriage of LEONARD ARMATO and ELIZABETH STEWART ARMATO. LEONARD ARMATO, Appellant, v. ELIZABETH STEWART, Respondent. B141503 Filed

106 Cal.Rptr.2d 395 (Cal.App. 2 Dist. 2001)
Filed 5/2/01
Amended 5/23/01

APPEAL from an order of the Superior Court of Los Angeles County, John W. Ouderkirk, Judge. Affirmed. (Los Angeles County Super. Ct. No. BD100474)

Trope and Trope and Thomas Paine Dunlap for Appellant.

Hindin & Abel and Bruce David Abel for Respondent.



In this dissolution action, the trial court ordered the husband to pay child support. Sometime later, the wife demanded an increase in support. They resolved the matter without the involvement of the court. The husband agreed to higher payments. The agreement was reduced to writing, which the husband and wife signed. While the agreement was still in effect, the husband unilaterally stopped making the higher payments and reverted to the previous level of support.

The wife filed a motion in this action to enforce the agreement under Code of Civil Procedure section 664.6, which authorizes a trial court to enforce a settlement agreement signed by the parties during pending litigation. The husband opposed the motion, arguing that, in order to obtain any relief, the wife had to file a separate action for breach of contract. The trial court granted the motion and enforced the agreement. The husband has appealed. We agree with the trial court and affirm.


Appellant Leonard Armato and respondent Elizabeth Stewart are former spouses. On December 30, 1994, their marriage was dissolved by a judgment of dissolution entered in this case. The judgment included provisions obligating Leonard to pay child support for the couple's sons, Anthony Armato, then age six (born February 2, 1988) and Elio Armato, then age four (born August 26, 1990).

More specifically, the judgment required monthly child support in the amount of $4,000 per child from July 1, 1994, through December 31, 1997. Beginning January 1, 1998, monthly child support increased to $5,000 per child. Payments were to continue "until each child attains the age of nineteen (19) years or attains the age of eighteen (18) years and is not a full-time high school student; or until said child enters into a valid marriage; is on active duty with any of the armed forces of the United States of America; or receives a Declaration of Emancipation under California law, or further order of the court, whichever first occurs."

As stated in the judgment, Leonard and Elizabeth were awarded "shared physical custody of the minor children, [Elizabeth] primary and [Leonard] secondary, pursuant to their present time-sharing arrangement." With respect to custody on holidays, the judgment recited that "[t]he parties shall continue to share custody of the children for all holiday periods equally as they have previously done."

The judgment also provided that "[t]he Court in the pending action has continuing jurisdiction to effectuate the terms of this Judgment . . . . No separate proceedings, partition, or otherwise shall be required."

In 1997, three years after the entry of judgment, Leonard filed an order to show cause re modification of child custody and visitation. The matter was heard in May and June 1997. By order dated December 9, 1997, the trial court increased Leonard's time with the children and imposed a detailed schedule of custody applicable to holidays.

In late 1997 and early 1998, Elizabeth's attorney contemplated filing an order to show cause to obtain an increase in child support. Elizabeth could not afford to pay the boys' school tuition and was already delinquent in that regard. On several occasions, counsel for the respective parties discussed aspects of the case. Meanwhile, Elizabeth and Leonard talked to each other about child support. In March 1998, they reached a voluntary arrangement. Leonard agreed to increase monthly child support from $5,000 per child to $7,500 for a period of two years. After that, Leonard would resume paying $5,000. Elizabeth agreed to take responsibility for meeting all of the boys' needs, including the payment of tuition. Leonard, an attorney himself, reduced the agreement to writing in the form of a letter agreement dated March 5, 1998, which he and Elizabeth signed.

Leonard made the higher support payments from March 1998 until April 1999. On April 21, 1999, he sent Elizabeth a letter, stating that he could no longer afford the increased payments. Leonard attributed the change in his financial situation to an earlier decision in which he had assumed sole liability for one of Elizabeth's business debts, i.e., a failed real estate deal. As he explained in the letter:

"[A]ll the claims in the [real estate] case relate[] to the construction work on the property performed solely by you. . . . I agreed to assume your liabilities in return for your full 'cooperation' throughout the case and based upon your representation that there was little wrong with the construction work performed on the property. Without addressing the fairness of that arrangement, the accuracy of your representation, or the fulfillment of your obligation, suffice it to say that this matter has been and continues to be extremely burdensome to me, both financially and otherwise."

Beginning May 1, 1999, Leonard resumed paying monthly child support of $5,000 per child. In essence, he offset the loss on the real estate deal against the child support payments due under the March 5, 1998 letter agreement.

On January 21, 2000, Elizabeth filed a motion in this action to enforce the March 5, 1998 letter agreement pursuant to section 664.6 of the Code of Civil Procedure. That statute 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. . . ." (Hereafter section 664.6.)

Leonard opposed the motion on the ground that, when the letter agreement was executed, there was no "pending litigation." He asserted that, instead of filing a section 664.6 motion in this action, Elizabeth was required to file a new civil action alleging breach of contract.

The motion was heard on February 16, 2000. After argument from both sides, the trial court granted the motion, stating: "I believe that they were parties to a pending action inasmuch as there was continuing jurisdiction to modify a support order in a family law case. And, therefore, there was a pending action." The trial court instructed Elizabeth's counsel to submit a proposed order.

On March 22, 2000, the trial court entered an order granting Elizabeth's motion to enforce the agreement. Leonard was directed to pay monthly child support of $7,500 per child from March 5, 1998, through February 4, 2000. Thereafter, the payments would revert to $5,000. The order also instructed Elizabeth to take full responsibility for the children's financial needs, including the payment of tuition for school. On May 3, 2000, Leonard filed a timely appeal from the trial court's order.


Because this appeal involves the application of various statutes to undisputed facts, we review the trial court's decision de novo. (State Farm Mut. Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076, 1081.)

"'The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. . . .' . . . In determining that intent, we first examine the words of the statute itself. . . . Under the so-called 'plain meaning' rule, courts seek to give the words employed by the Legislature their usual and ordinary meaning. . . . However, the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose. . . . If the terms of the statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." (Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1515-1516, citations omitted.)

In this case, the dispute rests on the meaning of "pending litigation" as used in section 664.6. Leonard argues that there was no litigation pending when the letter agreement was executed, and, as a result, section 664.6 does not apply. He contends that to enforce the agreement or to recover damages for its breach, Elizabeth had to file a separate civil action for breach of contract. He does not challenge the formation or validity of the agreement, only the manner in which it was enforced. For several reasons, we conclude that the trial court properly enforced the agreement under section 664.6.

A.Terms of the Judgment

The judgment of dissolution - the source of Leonard's obligation to pay child support - states that "[t]he Court in the pending action has continuing jurisdiction to effectuate the terms of this Judgment . . . . No separate proceedings, partition, or otherwise shall be required." (Italics added.) Thus, the judgment provided that any future child support issues would be decided in this action, not a separate civil suit.

B.Section 664.6 and Family Law

The use of section 664.6 in conjunction with the Family Code would promote one of the primary goals of family law - the simple and expedient resolution of disputes that arise after the dissolution of marriage.

"Section 664.6 was enacted in 1981. . . . [P]rior to 1981 the Courts of Appeal had expressed conflicting views concerning the proper procedures to enforce settlement agreements in pending litigation.

"Under one line of authority, settlement agreements preceding the enactment of section 664.6 in 1981...

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