Marriage of Hasso, In re, A047334

• Decision Date: 02 May 1991
• Docket Number: No. A047334,A047334
• Citation: 280 Cal.Rptr. 919,229 Cal.App.3d 1174
• Parties: In re the MARRIAGE OF Hebe and John HASSO. Hebe HASSO, Petitioner and Respondent, v. John HASSO, Respondent and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 919

280 Cal.Rptr. 919

229 Cal.App.3d 1174

In re the MARRIAGE OF Hebe and John HASSO Hebe HASSO, Petitioner and Respondent, v. John HASSO, Respondent and Appellant.

No. A047334.

Court of Appeal, First District, Division 2, California.

May 2, 1991.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing

May 30, 1991.

Review Denied Aug. 15, 1991.

Patrick McGrath, Guadagni, Flax & McGrath, Napa, for petitioner and respondent.

Elliot L. Bien, Bien, Summers & Dale, Paige Wickland, Kadushin-Fancher-Wickland, San Francisco, for respondent and appellant.

SMITH, Associate Justice.

Appellant John Hasso (Husband) appeals from a judgment enforcing the terms of a written marital settlement agreement executed by him and respondent Hebe Hasso (Wife) which disposed of outstanding property rights issues arising from the dissolution of their marriage.

Husband challenges the order granting Wife's motion to enforce the settlement. We will reject Husband's claims, concluding that there was substantial evidence for finding that the approval of the parties' respective attorneys was not a condition precedent for enforcement of the agreement, that attorney ratification was not required as a matter of public policy, and that Husband's assertions of undue influence, coercion and duress are without merit.

BACKGROUND

On March 8, 1984, Wife filed a petition in Napa County to dissolve the marriage of 29 years between herself and Husband. A judgment dissolving their marital status only was entered on July 15, 1986. The parties, who are of Iraqi descent, owned a vast array of assets and real property, not only in California but in Iran and Lebanon.

On November 12, 1984, the parties entered into a "Property Settlement and Property Separation Agreement" (1984 agreement) which divided up their major assets and liabilities. The agreement was negotiated without attorneys and was mediated by Husband's cousin, Alan Hasso.

Subsequently, Husband demanded that certain personal property not specifically mentioned in the agreement should be awarded to him; Wife assented and the parties executed a further agreement dated October 6, 1985. The 1985 agreement, which reconfirmed the property division recited in the 1984 agreement, was negotiated at the home of the parties' daughter Bonita Fargo, again without the participation of attorneys. It was later memorialized in writing by Wife's attorneys, although Husband obtained the advice of his retained counsel with respect to its provisions.

One of the assets awarded to Wife was the "Thurber Note" consisting of the right to receive payments under promissory notes on the Thurber apartment complex in Ohio. According to Wife, Husband induced her to accept the note by representing that it had a value of $1.2 million, whereas she later discovered that the parties owned only a 28 percent interest therein. Claiming that she had been shortchanged by $900,000 as a result of Husband's misrepresentation, Wife retaliated by refusing to perform that provision of the agreement obligating her to convey two lots in Jounieh, Lebanon known as the "Casino property"; she also sought relief by way of order to show cause. The parties attempted to arbitrate the dispute, but the arbitrators failed to reach a decision.

On May 13, 1987, the parties executed another marital settlement agreement (1987 agreement) which was drafted by Alan Hasso and again negotiated without the assistance of attorneys. Husband received $45,000 in connection with a sale of property mandated by the agreement, but the agreement ultimately became unenforceable due to the failure of an essential condition.

In the fall of 1988, the parties met again at Bonita Fargo's residence and negotiated a new agreement (1988 agreement). At the time, the principal outstanding issues between them were: (1) Wife's claim of misrepresentation regarding the "Thurber Note"; (2) Husband's retention of $45,000 obtained by virtue of the failed 1987 agreement; (3) the disposition of the Casino property; and (4) the parties' respective rights to principal and interest on approximately $2.5 million on deposit in lieu of appeal bond in a Napa County superior court case entitled Duggan v. Hasso (under the 1984 agreement the parties had agreed to divide the Duggan account funds equally, but Wife had been keeping all the interest payments). At Husband's request, the parties' daughter Jennifer Hasso Najm, an attorney at law, prepared a draft agreement and submitted it to Husband in early October 1988. The negotiations produced the following accord: Wife would relinquish her claim on the Thurber Note; both parties would transfer the Casino property to their four daughters in equal shares; Husband would be allowed to keep the $45,000 he received under the October 1987 agreement; and Wife would be allowed to retain all interest payments she had received on the Duggan accounts, but thenceforth Husband would be entitled to all of the parties' interest in the accounts. On November 6, 1988 the parties signed an agreement assigning their interest in the Casino property to their daughters and the following day they executed the agreement which is the subject of this appeal.

The 1988 agreement expressly provides that it may be enforced by either party by motion. Although the agreement contains signature lines at the bottom for each of the parties' attorneys under the caption "Approved As To Form," it also contains acknowledgments that they had retained their own counsel to advise them in connection with their rights and in the negotiation of the agreement; that each was "fully and completely informed as to the facts relating to the subject matter of this Agreement, and as to the rights and liabilities of both parties"; that they had given "careful and mature thought to the making of this Agreement" and had entered into it "voluntarily, free from fraud, undue influences, coercion or duress of any kind." Prior to executing the agreement, Husband and Wife went over it together word by word, paragraph by paragraph and page by page.

After the execution of the 1988 agreement, Wife's mother Augusta Maidani, who had been authorized to write checks on the Duggan accounts, executed a power of attorney enabling Bonita Fargo to write such checks. Pursuant to that power, Ms. Fargo began disbursing the interest payments on the accounts to Husband. However, soon after it was signed, Husband renounced the agreement. He told Bonita Fargo that his refusal was based on the fact that his daughters had refused to agree to convey the Casino property back to him once they had obtained title.

Wife thereupon brought a motion to enforce the 1988 settlement agreement under Code of Civil Procedure section 664.6 (section 664.6). The court, after receiving declarations for and against, granted the motion and issued a judgment commanding the parties to abide by the terms of the agreement.

APPEAL

I Waiver of Right of Appeal

As part of the negotiations which culminated in the 1988 agreement, Wife agreed to assign all her interest in the Duggan accounts to Husband and steps were taken to accomplish that. Upon Husband's refusal to go through with the settlement agreement, Wife filed for an injunctive order preventing Husband from receiving the funds. The court issued a temporary restraining order, freezing disbursement of the funds pending resolution of the enforcement motion, but dissolved the TRO when it granted the motion.

Wife initially claims that Husband has waived his right to appeal by accepting the fruits of the judgment, i.e., interest payments on the Duggan accounts.

"Ordinarily, a party cannot accept the benefits of a judgment, in whole or in part, and then attack it by appeal. His conduct in taking any of its advantages while seeking to reverse it is inconsistent, and the result is a waiver of the right." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 161, p. 171; see, e.g., Lee v. Brown (1976) 18 Cal.3d 110, 114, 132 Cal.Rptr. 649, 553 P.2d 1121; Oliver v. Schene (1960) 182 Cal.App.2d 473, 477, 6 Cal.Rptr. 461.) The doctrine is applicable to dissolution cases involving division of property rights. (Bulpitt v. Bulpitt (1951) 107 Cal.App.2d 550, 552, 237 P.2d 539; Swallers v. Swallers (1948) 89 Cal.App.2d 458, 460, 201 P.2d 23.)

If Wife's assignment to Husband of the parties' interest in the Duggan accounts were an integral part of the settlement which was enforced by the judgment below, Wife's waiver argument would deserve serious consideration. (See Epstein v. DeDomenico (1990) 224 Cal.App.3d 1243, 274 Cal.Rptr. 521 [buyer's acceptance of return of their deposit as part of settlement in real estate dispute constituted waiver of right to appeal from order enforcing the settlement].) However, the 1988 agreement (unlike its 1987 predecessor) nowhere mentions the Duggan accounts. The disposition of these monies was apparently the subject of an oral understanding collateral to the written agreement, but it is not addressed by the contract or by the judgment enforcing it. Husband's receipt of these interest payments therefore cannot be called a "fruit" of the judgment below, since such receipt was not called for by terms of the settlement or the judgment. While Wife may have other remedies in connection with Husband's acceptance of the Duggan funds, a dismissal of this appeal is not one of them.

II Attorney Approval As A Condition Precedent

Husband first argues that approval of the parties' respective attorneys was intended to be a precondition to the enforceability of the 1988 agreement. Preliminarily, we note the applicable principles of review.

Even where there are disputed facts, on a motion to enforce a settlement agreement pursuant to section 664.6, the trial court has the authority to determine whether the parties entered into a valid and binding settlement of all or part of the case. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994, 203 Cal.Rptr. 356.) In making...