Implicit Waiver of Fees Found in Broad Language of MSA

IRMO Guilardi (2011 DJDAR 16245), 6th App. Dist., November 7, 2011

Implicit Waiver of Fees Found in Broad Language of MSA

After sixteen years of marriage, Wife entered into an MSA only one month after separation and without counsel.  Incorporating the MSA, Judgment was entered on October 12, 2005.  On October 11, 2006, Wife moved to set aside the Judgment and MSA.  While noting the MSA as inequitable on its face, the trial court denied Wife’s request to set aside the Judgment.  Without any express waiver of fees in the MSA, Wife sought fees based on Family Code § 2030.  In turn, Husband moved to dismiss her fee request because the MSA provided attorney fees to the prevailing party in any related action.  The trial court found “an implicit waiver of any claims other than those available to the prevailing party” and denied Wife’s fee request.

Despite the absence of an express waiver of Family Code § 2030, the Court of Appeal affirmed the trial court’s ruling as the MSA “broadly encompasse[d] claims either party might bring against the other.”  Wife failed to show how the prevailing party right could simultaneously exist with the needs based right, and also failed to show how she was pursuing rights as an advocate for the parties’ child.  Relying in part on Taliaferro, (1962) 200 Cal.App.2d 190, 198, and Grolla, (1957) 151 Cal.App.2d 253, 260, the Court of Appeal found an implied waiver in the broad language of the MSA to deny Wife’s appeal.