Husband and wife married on January 31, 2004, and separated on February 1,
2013. Six months later, husband petitioned to dissolve their marriage, and on December
2, 2013, a judgment was filed using the Judicial Council of California form FL-180 and a
seven-page attachment (form SB-12035), 2 which set forth the court’s orders respecting
the parties’ agreement. According to form SB-12035, husband was required to pay
spousal support in the sum of $1,000 a month, commencing on October 1, 2013 and
continuing until August 1, 2017. The parties agreed that spousal support shall not
“terminate upon the death of either party or the remarriage of the supported party, or
further order of the court, whichever occurs first” when they did not check the box next
1 All further statutory references are to the Family Code unless otherwise indicated.
2 See appendix A, post, at pages 13-19, Superior Court of San Bernardino County local form SB-12035 (AGREEMENT FOR JUDGMENT—NO CHILDREN) (form SB- 12035).
2
to this requirement. 3 The parties executed the necessary paperwork without the
assistance of counsel.
On March 7, 2017, husband filed a postjudgment request for reimbursement of
$27,000 in spousal support paid to wife after her remarriage in November 2014. A
hearing on husband’s request was held on August 18, 2017. Both parties were sworn in.
Wife testified as to her understanding that she would receive spousal support for a
specific period, from October 1, 2013 until August 1, 2017, and that husband would keep
the home and his retirement (“CalSTRS” and “CalPERS”). When asked if they had
“used the spousal support as a form of property equalization,” she replied, “Pretty much.”
She explained that the period of four years was chosen because “when we met with the
man who did the paperwork, that’s what he said, that I would receive the money for half
the years of the time that we were married.” Wife’s testimony was not contradicted
because husband did not testify.
At the conclusion of the hearing, the trial court granted husband’s request based on
its finding that the “language in the judgment [failed to meet] the requirements of the
3 Form SB-12035, which was signed by both husband and wife, reads in part: “3. SPOUSAL SUPPORT [¶] . . . [¶] “ SPOUSAL SUPPORT PAYMENTS. Petitioner Respondent shall pay spousal support to the other Party the sum of $ 1,000.00 per month, “due one-half on the first and one-half on the fifteenth day of each month “due on the first of the month “due on the _____ day of each month “commencing 10/1/13 and continuing until 8/1/17 . Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever occurs first.”
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published case law, which require explicit waiver of the automatic or statutory
termination by operation of law upon the death of either party or the party receiving
support, remarriage.” The court’s order, in relevant part, provides: “Spousal Support was
terminated by operation of law by the remarriage of [wife] on 11/27/14. Effective
12/1/14, no Spousal Support was due. Court orders [wife] to pay [husband] the overpaid
amount of $27,000.00 within 90 days. Court order[s] [wife] to pay [husband] the amount
of $2,700.00 for Attorney Fees as sanction . . . at a rate of $100.00 per month
commencing on 12/1/2017 . . . .” 4
II. DISCUSSION
Wife contends the trial court erred in finding that husband did not circumscribe the
requirements of section 4337 via the execution of form SB-12035. We agree.
A. The Standard of Review.
“This case requires us to construe section 4337 as it applies to the facts of this
case. ‘[C]onstruction of a statute and its applicability to a given situation are matters of
law to be determined by the court.’ [Citations.]” (In re Marriage of Thornton (2002)
95 Cal.App.4th 251, 253-254 (Thornton).)
4 Husband contends that the record on appeal omits documents and is thus inadequate to allow review of the trial court’s judgment. We disagree. While the omitted documents may provide additional information, the record before this court is sufficient to evaluate the controlling legal issue.
4
B. Spousal Support Terminates upon the Supported Spouse’s Remarriage
Absent a Written Agreement to the Contrary.
Section 4337 provides: “Except as otherwise agreed by the parties in writing, the
obligation of a party under an order for the support of the other party terminates upon the
death of either party or the remarriage of the other party.” Although a written agreement
between the parties is required to waive the provision of section 4337, “[n]o particular
words are required. [Citation.] On the other hand, silence will not do. [Citation.]”
(In re Marriage of Glasser (1986) 181 Cal.App.3d 149, 151.)
C. The Parties May Use Forms Adopted or Approved by the Judicial Council
or Local Court Forms to Set Out the Terms of Their Marital Settlement Agreement.
“Practice and procedure in Family Code proceedings are governed largely by
Judicial Council ‘Family Rules,’ adopted as California Rules of Court (Title 5, Division
1, [Rule] 5.2 et seq.).” (Hogoboom & King, Cal. Practice Guide: Family Law (The
Rutter Group 2018) ¶ 3:200, p. 3-80; see Fam. Code, § 211 [“Notwithstanding any other
provision of law, the Judicial Council may provide by rule for the practice and procedure
in proceedings under this code.”].) The rules and judicial forms adopted or approved by
the Judicial Council for use in Family Code proceedings supersede conflicting rules and
statutes. (See Fam. Code, § 211; Cal. Rules of Court, rules 5.2(d), 5.7(a).) Further, local
courts may “adopt local rules and forms regarding family law actions and proceedings
5
that are not in conflict with or inconsistent with California law or the California Rules of
Court.” (Cal. Rules of Court, rule 5.4.) 5
Here, the parties used form SB-12035, which is modeled after form FL-343,
approved by the Judicial Council for optional use. 6 (Cal. Rules of Court, rule 5.4.)
D. Husband Waived Section 4337 by Failing to Check the Box on Form
SB-12035.
Form SB-12035 addresses the termination of spousal support obligation by
operation of law. In section 3, there is a box for the parties to check next to the following
sentence: “Spousal support shall terminate upon the death of either party or the
remarriage of the supported party, or further order of the court, whichever occurs first.”
(See appen. A.) Similarly, on form FL-343, in section 6b, there is a box for the parties to
check next to the following sentences: “Support must be paid by check, money order, or
cash. The support payor’s obligation to pay support will terminate on the death of either
party, remarriage, or registration of a new domestic partnership of the support payee.”
(See appen. B.) By failing to check the box on form SB-12035, in section 3, husband
5 The California Courts Web site provides information for self-represented parties in family law actions where the respondent spouse does not file a response, and the parties are in agreement. The Web site notes that some courts require the use of local court forms, directing the parties to consult their local court’s clerk, Web site, family law facilitator, or self-help center as to what local court forms must be completed. (See “Divorce or Separation,” “Default Case with Written Agreement” information at <http://www.courts.ca.gov/8410.htm> [as of Mar. 11, 2019].)
6See appendix B, post, at pages 20-21, Judicial Council of California form FL-343 (SPOUSAL, PARTNER, OR FAMILY SUPPORT ORDER ATTACHMENT) (form FL-343).
6
agreed that wife’s remarriage would not affect his obligation to pay spousal support to
her. The trial court found otherwise, concluding that husband’s obligation to pay such
support terminated by operation of law (§ 4337) upon wife’s remarriage. (Thornton,
supra, 95 Cal.App.4th at p. 254.)
We find the trial court’s reliance on Thornton to be misplaced. In Thornton, the
stipulated judgment dissolving the marriage required husband to pay $400 a month in
spousal support, “commencing May 15, 1997, and continuing until further Order of the
Court, death of either party, or for a period until March 1, 2003, whichever first occurs.
Said spousal support shall be non-modifiable.” (Thornton, supra, 95 Cal.App.4th at
p. 253.) Two days after judgment was entered, husband moved to stay entry of judgment
based on the “omission of wife’s remarriage as an event terminating spousal
support.” (Ibid.) No one appeared at the hearing, and the motion was taken off calendar.
(Ibid.) Later, after wife remarried, husband moved unsuccessfully to terminate spousal
support. (Ibid.) The Court of Appeal reversed on the ground the parties failed to
expressly waive the requirements of section 4337. (Thornton, at pp. 254 [“there was no
express waiver”], 257 [“If the parties wish to make a written agreement to waive the
remarriage provision of section 4337, they must at a minimum expressly state that the
supported spouse’s remarriage will not terminate spousal support.”].)
However, the Thornton court’s judicially crafted requirement that the parties must
“expressly state that the supported spouse’s remarriage will not terminate spousal
support” (Thornton, supra, 95 Cal.App.4th at p. 257) in order to waive the remarriage
provision of section 4337 was discredited in In re Marriage of Cesnalis (2003)
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106 Cal.App.4th 1267, 1275-1276 (Cesnalis). In Cesnalis, the first draft of a stipulated
judgment provided for the payment of spousal support until “the remarriage of Wife.”
(Id. at p. 1270.) Based on wife’s demand, this language was removed. (Id. at pp. 1270-
1271.) Following wife’s remarriage, husband moved unsuccessfully to terminate spousal
support. (Id. at p. 1271.) The Court of Appeal affirmed, explaining as follows: “No
particular words are required to waive section 4337 and make spousal support continue
upon remarriage, but silence will not do. [Citations.] There must be a written agreement
on the issue or the subject. [Citations.] [¶] Section 4337’s remarriage termination is not
waived simply because the written agreement fails to include remarriage among the
terminating events that are expressly mentioned. [Citation.] [¶] Nor is section 4337
overcome if the written agreement simply makes the spousal support provision
‘nonmodifiable’ in general. [Citations.] This is because ‘termination’ and ‘modification’
are distinct concepts describing different ways to alter a support obligation. [Citations.]
[¶] Thornton provides that a written agreement to waive section 4337’s terminating
provisions must be ‘specific and express.’ [Citation.] Nevertheless, as noted, no
particular words are required, and extrinsic evidence is admissible to resolve whether a
written agreement has waived the section 4337 remarriage termination provision.
[Citations.] Before such extrinsic evidence is properly admitted, however, there must be
language in the written agreement reasonably susceptible to interpretation as a
declaration of an intent that support continue beyond remarriage. [Citations.]” (Cesnalis,
at p. 1272.)
8
The Cesnalis court questioned the Thornton court’s statement that “‘[i]f the parties
wish to make a written agreement to waive the remarriage provision of section 4337, they
must at a minimum expressly state that the supported spouse’s remarriage will not
terminate spousal support.’” (Cesnalis, supra, 106 Cal.App.4th at p. 1275, quoting
Thornton, supra, 95 Cal.App.4th at p. 257.) According to Cesnalis, “this statement goes
beyond the requirements of section 4337. Taken literally, this statement would mean that
particular words are required to waive section 4337, and that extrinsic evidence has no
relevance in resolving whether a written agreement has waived the section 4337
remarriage provision. Section 4337 does not go so far as to require a written agreement
expressly stating that the supported spouse’s remarriage will not terminate spousal
support. [Citation.] As evidenced by this case, as well as by other decisions . . . , parties
can ‘otherwise agree[] . . . in writing’ to waive a section 4337 termination provision
without such an express statement. [Citation.]” (Cesnalis, at p. 1276.) We find the
Cesnalis court’s analysis of section 4337 and Thornton applicable and persuasive.
Here, in setting forth their agreement regarding spousal support, the parties used
form SB-12035, which required them to check a box if they wanted the section 4337
termination provision to apply. The trial court agreed that the form represented “an
agreement between the parties.” However, it found the argument that section 4337 does
not apply “because there appears to be a check box and it wasn’t checked” to be “a bit
disingenuous.” We disagree. Form SB-12035’s check box provides a sufficient
“writing” to represent the parties’ agreement to waive section 4337. (Cesnalis, supra,
106 Cal.App.4th at p. 1276.)
9
Moreover, the contents of family law Judicial Council forms, or in this case a local
court form that does not conflict with the Judicial Council forms, “are relevant when
evaluating the rights and responsibilities of the parties [citations].” (Faton v. Ahmedo
(2015) 236 Cal.App.4th 1160, 1170; see In re Marriage of Kahn (2013) 215 Cal.App.4th
1113, 1116-1119 [default judgment was void to the extent it awarded spouse more than
requested because there was no declaration of property filed with the form petition];
County of Lake v. Palla (2001) 94 Cal.App.4th 418, 424-428 [“To the extent inclusion of
additional information on the form complaint would improve the process, it is not for the
trial court to make such changes to the form’s requirements itself on an ad hoc basis.
Any such changes must come from the Legislature.”]; In re Marriage of Sharples (2014)
223 Cal.App.4th 160, 166-167 [discussing distinction between mandatory and optional
forms]; In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1169-1171 [mandatory standard
forms require the checking of boxes, from a series provided, to indicate the relief
requested, and thus the failure to check the child support box in a standard marital
dissolution form petition precludes inclusion of child support in a default judgment].)
Applying Cesnalis to the facts in this case, we conclude that husband and wife
expressed their agreement to waive the section 4337 termination provision by choosing
not to check the applicable box on form SB-12035. 7 By holding that no particular words
7 Also, by choosing not to check the applicable box on form SB-12035 regarding section 4337, the parties agreed that the trial court has no jurisdiction to terminate spousal support: “Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever occurs first.” (Italics added.)
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are required to waive section 4337, Cesnalis impliedly acknowledges the use of Judicial
Council forms, or local court forms, is sufficient to set forth the terms of the parties’
marital settlement agreement. When using such forms, the parties check the boxes next
to the applicable terms expressly stated; section 4337 does not suggest that any greater
specificity is required. Thus, the trial court erred in finding otherwise.
We conclude that as a matter of law, the spousal support order, agreed to by both
husband and wife via form SB-12035 attached to the judgment, is not subject to
termination by operation of law (§ 4337). 8 In reaching this conclusion, it should be borne
in mind that forms SB-12035 and FL-343 leave a lot to be desired. Although these forms
contain language that acknowledges section 4337’s termination of spousal support by
operation of law, the parties must affirmatively “opt in” to have the statutory requirement
apply. However, logic suggests that the parties should affirmatively “opt out” of the
statutory requirement in order to waive section 4337’s application. We urge the Judicial
Council of California and the local courts to revise their forms so that the parties must
specifically check a box to waive section 4337’s application.
8 Having concluded that the spousal support order in form SB-12035 speaks for itself, we need not consider the extrinsic evidence of the parties’ intent.
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III. DISPOSITION
The order is reversed. Appellant is to recover costs on appeal.
CERTIFIED FOR PUBLICATION
McKINSTER Acting P. J. We concur:
CODRINGTON J.
RAPHAEL J.
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Appendix A
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Appendix B
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21
AI Brief
AI-generated · verify before citing
Holding. The court held that the parties effectively waived the automatic termination of spousal support upon remarriage under Family Code section 4337 by intentionally leaving the termination provision unchecked on their court-approved settlement form.
Issues
Whether the parties' failure to check the box on a court form regarding the termination of spousal support upon remarriage constitutes a written agreement to waive Family Code section 4337.
Disposition. reversed
Quotations verified verbatim against the opinion
“Form SB-12035’s check box provides a sufficient “writing” to represent the parties’ agreement to waive section 4337.”
“No particular words are required to waive section 4337 and make spousal support continue upon remarriage, but silence will not do.”