Vanderstok v. Bank of America

Opinion

LILLIE, J. Plaintiff wife filed suit for divorce against Vanderstok listing certain community property; Bank of America was joined as a defendant because it held on deposit certain community funds and had been named by Vanderstok as trustee of an inter vivos revocable trust consisting of various stocks and cash, all community property. On July 23, 1969, the parties executed a marital settlement agreement listing all of the property and providing that plaintiff receive, among other properties, cash and stocks, “600 shares of Emory Common” and Vanderstok “the remainder.” An interlocutory judgment was entered July 29, 1969, incorporating by reference the agreement, and ordering the community property be divided as provided therein and the bank to dissolve the trust “pursuant to the terms of the Marital Settlement Agreement.” Because of certain administrative delays, the bank made actual distribution of the stock on November 13, 1969, distributing cash, stock, and “600 shares of Emory Common” to plaintiff, and “the remainder” to Vanderstok. No appeal from final judgment entered February 9, 1970, was taken by any party.

A year and a half later (August 3, 1971) plaintiff filed order to show cause against Vanderstok and Bank of America for an order for restitution charging in her declaration that originally there had been among various stocks in the trust 1,200 shares of Emory Common; on July 31, 1969, two days after entry of interlocutory judgment, the common stock of Emory Industries, Inc., split three-for-one creating 3,600 shares; the bank as trustee had known since March 1969 of the pendency of the stock split of which she and the attorneys were unaware; and it was intended by the marital settlement agreement that the 1,200 shares of Emory Common be divided equally but the bank distributed to her only 600 shares and to Vanderstok the remaining 3,000. The bank moved to quash the order to show cause on the ground that the trial court was without jurisdiction to hear the same because the judgment had become final, no appeal having been taken by either party; and by declaration of its counsel asserted com[734]pliance with the judgment and agreement on November 13, 1969. Plaintiff appeals from order granting motion to quash. Vanderstok is not a party to this appeal; order to show cause against him is still pending.

“Every court has power to compel obedience to its judgments and orders (Code Civ. Proc., § § 128, subd. 4, 177) and a court of equity retains inherent jurisdiction to oversee and enforce execution of its decrees. (Witkin, Cal. Procedure (2d ed. 1970) Judgments, § 79, p. 3240; see, e.g., Leser & Son v. Seymour, 35 Cal.2d 494, 500 [218 P.2d 536]; Green Trees Enterprises v. Palm Springs Alpine Estates, 66 Cal.2d 782, 788 [59 Cal.Rptr. 141, 427 P.2d 805]; Vallelunga v. Gomes, 102 Cal.App.2d 374, 382 [227 P.2d 550].)” (Brown v. Brown, 22 Cal.App.3d 82, 84 [99 Cal.Rptr. 311].) That portion of the interlocutory judgment commanding the bank to dissolve the trust pursuant to the provisions of the marital settlement agreement incorporated therein by reference is in the nature of a mandatory injunction inasmuch as it commands the doing of an affirmative act; a proceeding in contempt is a proper process for the enforcement or execution of an order or judgment of the court which is in the nature of an injunction. (Smith v. Smith, 18 Cal.2d 462, 464, 465 [116 P.2d 3].) It appears, therefore, that for the purpose of compelling performance of the judgment continuing jurisdiction over the subject matter and the bank exists in the trial court if there had been no compliance by the bank with the judgment.