In Re Marriage of Lionberger

JEFFERSON (Bernard), J.

I concur in part and dissent in part.

I agree with the majority’s opinion with the exception of the majority’s determination that affirms the trial court’s judgment that spousal support to appellant-wife be terminated at the end of a four-year period without any reservation of jurisdiction to order further support in the future.

The majority holds that appellant-wife’s right to attack the termination provisions of spousal support set forth in the interlocutory judgment is barred either (1) on the ground that appellant had stipulated below for such termination, or (2) that there was a failure by appellant to object to the trial court’s inclusion of such provisions in the judgment and that such failure amounts to an implied waiver of the right to assert error on appeal.

On the question of waiver, the majority relies upon Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311 [ 74 Cal.Rptr. 534 , 449 P.2d 750 ], in which it was held that, in a personal injury action, defendant had waived the right to object on appeal to plaintiff-counsel’s trial misconduct by failing to object to such counsel’s trial misconduct and failing to request the trial court to admonish the jury to disregard such misconduct.

*73 But the majority’s reliance upon Sabella is without reasonable foundation. The Sabella court made it quite clear that its decision rested upon the circumstances of the particular case. Thus, the Sabella court observed: “Each case must ultimately rest upon a court’s view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.” (Id., at pp. 320-321; fn. omitted.)

The issue presented in the case at bench is not at all similar to the issue presented in Sabella . In addition, it is to be noted that Sabella was decided by a divided court. In his dissenting opinion in Sabella , Chief Justice Traynor commented that “[n]o admonition, however, could cure the prejudicial effect of such misconduct as prevailed throughout this case. Accordingly, defendant’s failure to request admonitions to the jury does not preclude it from challenging the misconduct on appeal.” (Id., at pp. 324-325.) It is my view that, in terms of fairness and justice, the dissenting opinion in Sabella presents a far better rule than that announced by the Sabella majority.

In the matter before us, the majority also relies upon the case of In re Marriage of Hendle (1976) 56 Cal.App.3d 814 [ 128 Cal.Rptr. 854 ], in which the court held that there was a failure by appellant and his counsel to voice an objection to the trial court’s statement of an alleged oral stipulation of the parties and that such failure to object amounted to a consent to the stipulation as announced by the trial court.

The Hendle case involved the issue of a division of community property, while the case at bench involves the question of termination of spousal support. Hendle is similar to the case at bench in that there was no trial or determination of the issues by the trial court upon evidence presented, but a decision based upon an asserted oral agreement between the parties.

I dissented in Hendle and set forth the view that the majority result was erroneous. (See Hendle, supra, 56 Cal.App.3d 814, 818-824 (dis. opn. of Jefferson, J.).) The majority’s view in the case at bench is equally as untenable as was the majority’s view in Hendle. The record before us does not support the majority’s conclusion that the appellant wife had entered into an oral stipulation with respondent husband for a termination of spousal support at the end of four years without any reservation of jurisdiction by the court to order further spousal support.

*74 “The definition of a stipulation is well established in the law. ‘A stipulation is an agreement between counsel respecting business before the court [citation], and like any other agreement or contract, it is essential that the parties or their counsel agree to its terms.’ (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142 [ 199 P.2d 952 ].) (Italics supplied.) It is equally clear that an attorney has authority to bind his client in any of the steps of an action or proceeding by entering into a valid stipulation. (See Code Civ. Proc., § 283.) ‘ “Such a stipulation . . . when made in open court. . . constitutes not only an agreement between the parties, but also one between them and the court, which the court is bound to enforce for the benefit of those interested and for the protection of its own honor and dignity.” [Citation.]’ (Barendregt v. Downing (1959) 175 Cal.App.2d 733, 736 [ 346 P.2d 870 ].)” (Marriage of Hendle, supra, 56 Cal.App.3d 814, 818-819 (dis. opn. of Jefferson, J.).)

It is my view that the record of the trial court proceedings below demonstrates, without equivocation, that appellant wife did not enter into any oral stipulation with respondent husband for the termination of spousal support without any reservation of jurisdiction in the trial court to order further spousal support at the end of the four-year period. “Although there are no magic words which counsel or the court must use to effectuate a stipulation in open court, nor is any particular formality required, the language and conduct must be such as to indicate an assent to the terms of the alleged stipulation.” (Marriage of Hendle, supra, 56 Cal.App.3d 814, 822 (dis. opn. of Jefferson, J.).)

The record below establishes only that the stipulation for spousal support was stated in open court by counsel for respondent husband and that such counsel did not state, as a part of the stipulation or otherwise, that there would be no reservation of jurisdiction in the trial court to modify the spousal support provisions beyond the period of four years.

After counsel for respondent husband stated that the spousal support would last for a period of four years, the trial judge spoke up and remarked: “Well, that would be to and including the payment on July 15, 1980.” Respondent-husband’s counsel replied: “Correct, Your Honor.” The trial judge then gratuitously added: “And the Court will not reserve jurisdiction beyond that latter date.” The record reflects that respondent-husband’s counsel did not comment upon this statement of the trial judge. Counsel made no statement as to whether this nonreservationof-jurisdiction statement of the trial judge constituted a part of the stipulation of the parties, but simply proceeded to announce another *75 portion of the parties’ agreement with respect to the payment of attorney’s fees.

Since respondent-husband’s counsel made no reply with respect to whether the trial judge was correct in the judge’s gratuitous statement as to nonreservation of jurisdiction, I can find no logic or reason to support the majority’s holding that appellant wife or her counsel was required to raise an objection that the trial judge’s pronouncement was not part of the stipulation of the parties. I can find no duty on appellant wife or her counsel to respond to the trial judge when counsel for respondent husband, who was reciting the stipulation, made no reference to the trial judge’s interjection.

The record also reflects that, on a subsequent date approximately three weeks later, respondent’s counsel stated in open court: “I didn’t have a commencement date on the spousal support, but it was to be for a period of four years.” The court then stated: “Yes. That I have down here, too, somewhere. A hundred and—What did you say?” To this question respondent’s counsel replied: “$175 per month, Your Honor.” The trial court then stated: “My notes indicate August 1, 1976; terminating with the payment on July 15, 1980. [If] Now, Mrs. Lionberger, would you come up here? There are one or two brief questions which we neglected to ask the last time. [If] Raise your right hand and be sworn, please.” Appellant was then questioned about other matters, but nothing at all about the length of spousal support or the nonreservation of jurisdiction to modify spousal support.

For the majority to hold that, upon this record, appellant had entered into an oral stipulation for a nonreservation of jurisdiction to modify the four-year provision for payment of spousal support, constitutes a decision based upon pure surmise, speculation and conjecture. It is to be noted that, at no point in the record, does it appear that the trial judge asked appellant wife or appellant-wife’s counsel whether appellant was agreeing to a provision for nonreservation of jurisdiction to deal with spousal support at the conclusion of the four-year period. It is of utmost significance in the instant case that the only question about nonreservation of jurisdiction was put by the trial judge to respondent-husband’s counsel—as a statement and not as a question—and that counsel for respondent husband made no response to the trial court’s gratuitous statement.

*76 The majority’s holding, in reliance upon Marriage of Hendle , that the record in the instant case establishes that appellant had entered into an oral stipulation with respondent in open court for the nonreservation of jurisdiction to modify spousal support “puts a stamp of approval upon a trial court procedure which makes a mockery of the Palmer court’s statement that ‘[ujnless it is clear from the record that both parties assented, there is no stipulation.’ ” (Marriage of Hendle, supra, 56 Cal.App.3d 814, 823 (dis. opn. of Jefferson, J.).)

I consider the law to be that, if a trial judge states for the record in open court a stipulation which he believes was made by the counsel for the parties in a chambers conference, he has a mandatory obligation to ask all counsel and the parties present in open court whether the court’s statement of the stipulation represents the agreement of the parties. Nothing short of this procedure should be tolerated. If a trial judge fails to follow this procedure, a party should not be held to have entered into an oral stipulation through any process of implied consent or waiver.

I would thus reverse that portion of the interlocutory judgment which provided for the payment of spousal support for a period of four years “at which time all spousal support shall forever terminate,” and order a modification of the judgment to provide for a reservation of jurisdiction in the trial court to order payment of spousal support following the expiration of the four-year period.

The petitions of both appellants for a hearing by the Supreme Court were denied November 15, 1979.