Welch v. Welch

• Decision Date: 31 May 2022
• Docket Number: B311507
• Parties: Brendon WELCH et al., Plaintiffs and Appellants, v. Freeman H. WELCH, Individually and as Trustee, etc., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 283

294 Cal.Rptr.3d 626

Brendon WELCH et al., Plaintiffs and Appellants,

v.Freeman H. WELCH, Individually and as Trustee, etc., Defendant and Respondent.

B311507

Court of Appeal, Second District, Division 5, California.

Filed May 31, 2022

FEM Law Group and F. Edie Mermelstein for Plaintiffs and Appellants.

California Appellate Law Group, Charles M. Kagay, San Francisco, and Claudia Ribet, Beverly Hills; Velasco Law Group, Peter Ali Sahin and Sindee M. Smolowitz, Long Beach, for Defendant and Respondent.

MOOR, J.

Appellants Brendon Welch (Brendon) and Jeanne Donohoe (Jeanne) appeal the probate court's January 14, 2021 orders: (1) denying Brendon's Petition for Recovery of Property under Probate Code section 850¹ and sustaining objections thereto by respondent Freeman H. Welch (Freeman); and (2) denying Brendon's Petition for Letters of Administration and granting Freeman's Petition for Probate of Will.

At issue is whether a mediation settlement agreement that Freeman and his now-deceased wife Patricia Ann Welch (Patricia) entered into after separation and in anticipation of dissolution of their marriage is a "complete property settlement" within the meaning of section 145, which operates as a statutory waiver of certain of Freeman's rights as a surviving spouse enumerated in section 141, including the right to inherit from Patricia and to be appointed as the personal representative of her estate.² We reverse the probate court's orders and remand the matter for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND³

The Family Court Action

In September 2015, after 36 years of marriage, Freeman and Patricia separated. Freeman filed a petition for dissolution of marriage, and requested that the court make a determination of rights to the couple's community and quasi-community property, which he listed in an attachment to the petition. Patricia filed a response, also requesting dissolution of the marriage and division of their property, as well as an award of spousal support payable to her from Freeman. In November 2016, Freeman and Patricia each verified that they had served a Preliminary Declaration of Disclosure.

In October 2017, the parties participated in mediation and executed a five-page, predominantly handwritten settlement agreement (MSA), dividing the couple's property and addressing other financial issues, including spousal support. The MSA was dated October 6, 2017, and it was signed by both parties and their respective attorneys. It included the following provisions for division of their property:

Property Division

Petitioner shall receive the following items subject to equalization:

1. Book of Wells Fargo business at a value of $995,700 subject to equalization

2. 1/2 of current IRA at Wells Fargo Advisors XXX5235 with a current value of $62,657 (all account amounts subject to confirmation)

3. 1/2 of DoS value of Farmers acct XX8131 valued at $26,859

4. 1/2 of Pet's Deferred Comp Plan with current value of $7,858

5. Pet's S.P. and C.P. portion of his 401K Plan per QDRO^{[4 ]} to be prepared by Nancy Bunn, Atty, using DOS of 9/29/2015

6. Marriott timeshare XX5190 at value of $2,750

7. Mercedes SLK 320 at value of $3,324

8. Household items attached hereto at 0 value.

Respondent shall receive the following items:

1. 6333 E. Colorado Street, Long Beach, CA with est FMV net $854,530.

2. 1/2 of items # 2-4 inclusive set forth above in Petitioner's items

3. Respondent's C.P. share of Pet's 401K to be divided by QDRO by Nancy Bunn, Atty, using DOS of 9/29/2015.

4. Marriott timeshare XX8041 at 0 value (Resp's SP)

5. Mercedes GL450 at value of $10,686.

6. Equalization payment in an amount to be determined after running Propertizer^{[5 ]}

7. All furniture, furnishings and personal property in her possession except for items on Pet's list

Parties shall sell Kona Coast timeshare and equally divide net proceeds.

Respondent reserves the right to review and verify the documents and amounts to each party as the result of the November 2015 splitting of accounts (Wells Fargo) #8858, 5961, 5185 now held by petitioner and respondent in Wells Fargo Accounts #4655 and 2472.

Nancy Bunn, as QDRO attorney, shall be instructed to tax impact division of QDRO regarding the equalization payment to be paid by Petitioner to Respondent from his SP and CP portion of the account.

Parties will prepare a Propertizer using the above referenced dates to determine the precise Amount of the equalization payment. (Sept 29, 2015 DOS)

Parties will prepare a formal Judgment for submission to David Weinberg, Commissioner (ret.) who shall serve as the judicial officer regarding all issues arising from this settlement; entry of Judgment and post-Judgment matters.

All other credits and reimbursements waived.

HOUSEHOLD AND GARAGE ITEMS

Entire garage office contents

Tools-Parts-Cables-Hardware, etc.

Workbench with all contents including shelves of Coke crates

All neon signs, art, license plates, banners and miscellaneous decorations, etc. in garage

Monitor audio speakers

SAE speaker switch

Yamaha turntable (in box above office)

Photographs and videotapes (I was cameraman on all. Happy to share cost of making copies of whatever Patsy wants.)

Sand bottles and rack

Trunk with electric trains

Jax beer opener

Safe contents that belong to or are related to Petitioner

One-half silver coins (located in kitchen cabinet)

The MSA stated: "We have read the entire stipulation and agreement. We understand it fully and request the court to make our stipulation and agreement the Court's order.... We waive all further notice of this order."

In November 2017, Freeman drafted a proposed formal judgment and sent it to Patricia. The judgment provided for the dissolution case to proceed as an uncontested matter. In January 2018, Patricia informed Freeman that she did not agree with the draft judgment and itemized numerous objections to its provisions in a letter from counsel.

On January 19, 2018, Freeman filed a request for order to enforce the settlement and enter judgment pursuant to Code of Civil Procedure section 664.6. The motion attached both the MSA and Freeman's proposed judgment.

On March 6, 2018, Patricia filed an opposition to the motion to enforce the MSA and to enter judgment, arguing that, pursuant to the MSA, any dispute between the parties regarding the terms of their settlement or entry of judgment must be brought before the mediator, not the trial court; the court had no authority to enter Freeman's proposed judgment because the MSA required preparation of an agreed-upon formal judgment; Freeman's proposed judgment contained additional material terms that were not included in the mediation agreement, and were contrary to it; and the procedure for Patricia to object to the draft judgment's provisions necessarily depended on whether the trial court or the mediator would resolve those disputes. Patricia requested that the court deny Freeman's request to enforce the settlement terms in the MSA and deny entry of judgment thereon. Patricia also requested that the court enforce the provision in the MSA for resolution of disputes, by ordering the parties back to the mediator to resolve any disputes about the settlement terms.

On March 14, 2018, Freeman filed a reply, arguing there was no need for additional mediation because the proposed judgment faithfully reflected the mediation agreement.

On March 19, 2018, the parties appeared for the hearing on Freeman's motion. The hearing on the motion to enforce settlement and enter judgment was continued to June 25, 2018. The court set a trial setting conference for the same day.

On May 21, 2018, Freeman filed a declaration of his counsel in support of the pending motion for entry of judgment. In the declaration, Freeman's counsel noted: "This is a dispute about (1) who has the authority to resolve this Motion for Entry of Judgment and (2) a dispute about the contents of the Judgment. [Freeman] contends this Court has the authority to resolve the dispute and enter the Judgment filed concurrently herewith and that this Judgment is consistent with the terms of the parties’ written agreement dated October 6, 201[7]. [Patricia] disagrees and/or has refused to respond."

With the declaration of counsel, Freeman lodged a second proposed judgment. Counsel stated in the declaration that Freeman had "agreed to adopt nearly all of [Patricia's] changes to Judgment #1" and the second proposed judgment was "the mirror-image of the parties’ agreement [reached in mediation]." Freeman's counsel further stated that counsel had personally delivered a copy of the second proposed judgment to Patricia's attorney, along with Freeman's final declaration of disclosure, and a waiver of Patricia's final declaration of disclosure. Freeman asked the court to enter the second proposed judgment at the hearing pursuant to Code of Civil Procedure 664.6 and Los Angeles County Local Rule 5.16.

Patricia did not respond to Freeman's counsel's declaration. On June 16, 2018, Patricia died. Neither the hearing on the motion nor the trial setting conference occurred on June 25, 2018.

On July 6, 2018, the trial court signed and filed the second proposed judgment dissolving the parties’ marriage and distributing their property.

On August 6, 2018, counsel for both parties appeared in court. Patricia's counsel informed the court that her client had died. Freeman's counsel stated his client's position that the case was dismissed by operation of law. Neither party's counsel nor the court raised the existence of the judgment signed by the court the prior month. The court dismissed the case without objection from either party.

On October 22, 2018, Freeman moved to set aside the judgment signed in July under Code of Civil Procedure section 473 and Family Code section 2105. Brendon, acting as the proposed administrator of Patricia's estate and represented by his own counsel, opposed the motion.

On December 17, 2018, the court filed a notice of ruling and order on the motion to...