In re Marriage of Wilson and Smith CA1/3

Filed 9/23/15 In re Marriage of Wilson and Smith CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of KAREN WILSON and JEFFREY ANTON SMITH.

KAREN WILSON, Appellant, A144190 v. (San Mateo County JEFFREY ANTON SMITH, Super. Ct. No. F362391) Respondent.

In a postjudgment dissolution proceeding, Karen Wilson (Wife) brought an action to recover unpaid spousal and child support. Wife entered a settlement agreement with Jeffrey Anton Smith (Husband) in which Husband paid Wife $90,000 and placed an additional $40,000 in trust for Wife’s educational expenses, payable in installments of $20,000 each for years 2011 and 2012. The parties agreed the trust money would be refunded to Husband if not timely used. In early 2012, Husband sought enforcement of the settlement agreement and a refund of the 2011 installment that had not been used in the time allotted. In November 2012, the family court issued an order enforcing the settlement agreement and ordering the requested refund of $20,000. We affirmed that order. (In re Marriage of Wilson & Smith (Sept. 30, 2013, A137560) [nonpub. opn.].) Upon issuance of the remittitur in December 2013, Husband was paid the disputed funds and the interest earned on the funds.

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In a subsequent proceeding, Husband claimed the right to additional interest, specifically, prejudgment breach of contract interest at a rate of 10 percent per annum from January 1, 2012, when the 2011 installment refund was due, through January 1, 2014, when the money was paid. The family court agreed Husband was entitled to prejudgment interest and entered an order awarding Husband $3,947.32. (Civ. Code, § 3289, subd. (b).) Wife appeals. Husband, citing the small amount of money at issue, has chosen not to file a respondent’s brief. We shall strike the award as without legal basis. Statement of Facts We begin with a summarization of those facts set out in our prior opinion that are relevant to the issues presented on this appeal. (In re Marriage of Wilson & Smith (Sept. 30, 2013, A137560) [nonpub. opn.].) The parties separated in 1991 after almost nine years of marriage. A judgment of dissolution of marriage was filed in July 1992. The judgment incorporated a marital settlement agreement that provided child support for the parties’ two children as well as spousal support for Wife. Husband failed to make all required payments. In 2010, Wife sought to collect unpaid support and served Husband with notice to appear for a judgment debtor examination. (Code Civ. Proc., § 708.110.) The parties settled the debt issue in May 2010, in advance of the scheduled examination. The settlement agreement provided for a cash payment of $90,000 to Wife and an additional $40,000 “educational benefit” fund administered by a trustee. The $40,000 fund was payable to Wife in two installments of $20,000 each for years 2011 and 2012. The agreement provided, with limited exceptions inapplicable here: “It is the intention of the parties that if the $20,000 earmarked for each calendar year of education is not completely used by [Wife] for her educational expenses, then any remaining amounts are to be refunded to [Husband].” Husband sent a $40,000 check to Wife’s attorneys at the time, the Law Offices of David G. Finkelstein, to act as trustee. The firm deposited the money in the firm’s attorney-client trust account in November 2010. A disagreement arose over administration of the trust funds. The Finkelstein firm refused to disperse any funds until