Guasch v. Guasch

Opinion

ELIA, J. Appellant Pamela Carmody served a writ of execution on community property held by respondents Charlene and James Guasch, who were undergoing marital dissolution proceedings. The family court granted Charlene’s request to quash the writ of execution and enjoin further enforcement of a default judgment appellant had obtained against James after his separation from Charlene. Appellant contends that the court should have applied Code of Civil Procedure section 529 (hereafter, section 529) by requiring Charlene to post a bond to secure payment of James’s debt. We disagree and affirm the order.

Background

Charlene filed a petition for dissolution of her marriage to James on April 18, 2006. By stipulation appellant was joined in the proceeding. Both before and during the divorce proceedings James expressed threats and a desire to kill Charlene, and in June 2007 he solicited Charlene’s murder, for which he [945]was subsequently convicted.1 Appellant, who was James’s girlfriend, was convicted by plea in November 2007 as an accessory to the solicitation, among other offenses.

On April 28, 2010, appellant obtained a default judgment against James for $224,177.61, resulting from her loan of funds for James’s bail and other obligations. On August 5, 2010, the family court authorized Charlene to withdraw funds from investment accounts owned by both Guasches. Implementing this order was problematic, however, in part because appellant had served a writ of execution on one of the affected funds based on her judgment against James. Charlene advised the court that James had allowed appellant’s judgment to be entered against him so that appellant could execute and enforce the judgment against community property rather than property held by James alone. Charlene asked the court to direct the American Fund to release the funds in accordance with the August 5 order, and to quash the writ of execution and abstract of judgment obtained by appellant against James. She also asked the court to restrain appellant from levying on any other property held by her and James, including community real property.

Appellant opposed Charlene’s request, contending that it was appropriate to seek satisfaction of the judgment from community property. Appellant also invoked section 529, insisting that if the court were to enjoin execution of the judgment, Charlene should be required to post a bond equal to one and one-half times the amount of the judgment to prevent dissipation of the Guasches’ assets. Charlene, however, maintained that a restraining order could be issued against appellant without a surety bond. Distinguishing In re Marriage of Van Hook (1983) 147 Cal.App.3d 970 [195 Cal.Rptr. 541], on which appellant was relying in her request for a bond, Charlene noted that appellant, unlike the creditor in Van Hook, was a party to the instant action. Calling attention to appellant’s conviction of “conspiring with” James to murder her, Charlene urged the court to consider James and appellant “as one.” In Charlene’s view, James and appellant, having been unsuccessful in accomplishing her murder, were “now attempting to ruin [Charlene] financially. [James] allowed Claimant [(appellant)] to obtain a default judgment against him so that Claimant could attempt to execute and enforce the judgment against community assets of the party’s [sic].” Charlene emphasized that appellant had sought execution only as to community funds, while leaving alone accounts held solely in James’s name, even though the judgment was against only James.