Filed 6/21/16 Marriage of Amankonah and Monson CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of THOMAS D. AMANKONAH and PETREA

MONSON.

D068274

THOMAS D. AMANKONAH,

Appellant, (Super. Ct. No. D541716)

v.

PETREA MONSON,

Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Cindy D.

Davis, Judge. Affirmed.

Law Offices of Jenkins and Erik C. Jenkins for Appellant.

Fleischer & Ravreby, Richard R. Ravreby and Tana J. Landau for Respondent.

After a nine-hour mediation with a retired superior court judge, the parties in this

marital dissolution case, each represented by separate counsel, reached a written

agreement involving custody, support, and property issues (Agreement). Instead of exchanging final declarations of disclosure as required by Family Code1 section 2105,

subdivision (a), the Agreement states, "Waive DOD." Later, when disputes arose

regarding Thomas Amankonah's performance under the Agreement, his ex-wife, Petrea

Monson, successfully brought a motion under Code of Civil Procedure section 664.6 to

have the court enter the Agreement as a judgment.

Amankonah appeals from the judgment. He contends (1) under section 2106,

judgment cannot be entered because the parties did not exchange statutorily required final

declarations of disclosure, and the parties' purported waiver of this requirement by stating

"Waive DOD" is invalid; and (2) because the waiver of final declarations of disclosure is

invalid, the court lacked jurisdiction to enter judgment. Although Amankonah does not

argue he suffered any prejudice from the failure to exchange final declarations of

disclosure, he contends no prejudice is necessary because section 2107, subdivision (d)

states, "The failure to comply with the disclosure requirements does not constitute

harmless error."

We conclude Amankonah is only partially correct. Because the parties sought to

enter the Agreement as a judgment, Amankonah is correct that "Waive DOD" is

ineffective to waive the mandated exchange of final declarations of disclosure as

provided in section 2105, subdivision (d). (In re Marriage of Fell (1997) 55 Cal.App.4th

1058, 1065 (Fell) [no form of waiver other than as prescribed by section 2105,

subdivision (d) is effective]; In re Marriage of Woolsey (2013) 220 Cal.App.4th 881,

1 All statutory references are to the Family Code unless otherwise specified. 2 892-893 (Woolsey) [after a mediation in a marital dissolution case, compliance with the

declaration of disclosure requirements is a prerequisite to entry of judgment].)

However, these disclosure requirements are not jurisdictional, and the failure to

comply cannot lead to reversal unless the appellant establishes prejudice. (In re

Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 528 (Steiner) [refusing to

apply section 2107, subdivision (d) because it is inconsistent with the constitutional

mandate that no judgment may be set aside unless there has been a miscarriage of

justice].) Because Amankonah makes no attempt to show prejudice resulting from the

failure to exchange final declarations of disclosure, the error is harmless and the

judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

The parties were married in 2002 and had one child together. In February 2014

the court terminated their marital status.

Amankonah has been a physician for approximately 25 years. His January 2015

income and expense declaration states he was earning approximately $30,000 per month.

Monson is a research coordinator. Her September 2014 income and expense

declaration states she was earning $1,600 per month.

B. Mediation

In April 2014 the parties meet with the Honorable Thomas R. Murphy (Ret.) to

mediate custody, support, and property issues. At that time, Monson had pending a

3 motion for child and spousal support and for an award of attorney fees. Approximately

six months earlier, the parties had exchanged preliminary declarations of disclosure.2

Both parties and their respective lawyers were at the mediation. Amankonah was

represented by Laura Miller, a certified family law specialist. Monson was represented

by Richard Ravreby, also a certified family law specialist.

The mediation lasted nine hours. Amankonah was "actively involved" discussing

offers and counteroffers. Amankonah was calm and he was in complete control of his

faculties. Miller explained to Amankonah that absent a negotiated resolution, he was

exposed to a potentially large support order and attorney fees award.

The mediation resulted in an 11-page settlement agreement (Agreement)

handwritten by Judge Murphy. The Agreement resolved, among other issues: child

custody, insurance, support, real property, furniture and furnishings, automobiles,

retirement accounts, credit card debts, and attorney fees.

Among other provisions, the Agreement states, "The parties waive any Epstein,

Watts and or Frick claims they may have against the other."3 The Agreement also states,

"Waive DOD."

2 Section 2104 generally provides the parties in a marital dissolution action must exchange prescribed preliminary declarations of disclosure. Among other things, the preliminary declaration of disclosure must identify "all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable, regardless of the characterization of the asset or liability as community, quasi- community, or separate." (§ 2104, subd. (c)(1).)

3 In re Marriage of Epstein (1979) 24 Cal.3d 76, superseded by statute on other grounds as stated in In re Marriage of Margulis (2011) 198 Cal.App.4th 1252, 1280; In 4 The Agreement states it is "binding and enforceable" and "may be introduced into

evidence and/or established as a judgment per [Code of Civil Procedure section] 664.6."

Judge Murphy gave Amankonah a copy of the signed Agreement. Amankonah

began to have second thoughts as early as the walk back to his attorney's office.

The Agreement required Amankonah to pay $5,000 per month for spousal and

child support. However, Monson testified that Amankonah paid that amount only once

and, "[o]ther than that, every month it was less than $5,000." Amankonah also did not

pay the $5,000 in attorney fees provided in the Agreement. The Agreement requires

Amankonah to convey certain Hawaii property to Monson; however, he refused to sign

the deed. As disputes about Amankonah's failure to perform his obligations under the

Agreement began to mount, he threatened Monson he would "make [her] pay" and

"litigate this until neither of us have any money."

C. Motion to Enforce Settlement Agreement

In September 2014 Monson's attorney filed a request for an order enforcing the

Agreement under Code of Civil Procedure section 664.6.4 Opposing the motion,

Amankonah filed a declaration asserting the Agreement was unenforceable because he

"did not fully comprehend or understand the terms of the agreement" and "[m]any terms

Re Marriage of Watts (1985) 171 Cal.App.3d 366; In re Marriage of Frick (1986) 181 Cal.App.3d 997.

4 Code of Civil Procedure section 664.6 provides in part: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement."

5 and provisions were not explained to me." In particular, Amankonah stated, "I did not

understand the various property and reimbursement rights, such as Epstein and Watts

credits and Family Code section 2640 claims, which I allegedly waived under that

agreement."

Amankonah's attorney also filed written opposition.5 He asserted the Agreement

was unenforceable "because [Amankonah] did not comprehend or understand the terms

of the agreement." Counsel stated, "There was no meeting of the minds, and a true

accord was not reached."

1. Day one

The court conducted an evidentiary hearing. Before the first witness was sworn,

Amankonah's attorney explained that Amankonah no longer claimed the entire agreement

was unenforceable. Instead, he was only contending the provisions waiving Epstein

credits and section 2640 credits were not explained to Amankonah and were therefore not

binding.6 Counsel stated, "He [Amankonah] would stipulate, and if we want to put a

stipulation on the record as to the rest of this agreement, Your Honor, there is no issue

5 Amankonah was now represented by attorney Eric C. Jenkins, not Laura Miller.

6 In Epstein, supra, 24 Cal.3d 76, the California Supreme Court recognized a spouse's right to reimbursement from community property for payment of post-separation community expenses from the spouse's separate funds. Section 2640, subdivision (b) provides in part: "In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source." 6 because most of it is in plain English. And he's a very educated man. He's a doctor. He

speaks several languages."

After opening statements, Miller testified she reviewed the entire Agreement with

Amankonah and answered all his questions.7 She discussed with him issues of child

support and how a child support order is calculated. She talked to Amankonah about the

property he would receive. She reviewed "in detail" with Amankonah "every single

paragraph of this settlement agreement before he signed it."

Miller answered every question Amankonah asked regarding the settlement terms.

She discussed with Amankonah "what an Epstein claim was" and "what a waiver of

Epstein claims meant." Amankonah understood her explanation. Miller also told

Amankonah "what a Watts claim was" and he understood what the Agreement "meant by

waiving a Watts claim." Amankonah asked Miller questions about "what a Marriage of

Frick claim was" and she "fully explained to him what these types of waivers involving a

Frick claim were." She also discussed with Amankonah "what a Family Code [section]

2640 claim entailed." Amankonah "understood what a Family Code [section] 2640

waiver was." Miller testified she explained reimbursement claims to Amankonah "in

detail."

Miller also explained what the Agreement meant by "Waive DOD." Amankonah

asked her about the purpose of exchanging final declarations of disclosure, and "if there

would be any harm to him waiving final DODs." Miller explained to him "the purpose of

7 Amankonah waived the attorney-client privilege before Miller testified. 7 final DODs, and [she] indicated to him that it was [her] opinion there was no harm in

waiving the final DODs." Amankonah agreed with this decision.

Amankonah initialed each page of the Agreement and signed the last page. Miller

testified there is "no doubt" that Amankonah "knowingly and willingly signed the

[settlement] [A]greement."

Amankonah's testimony, however, was significantly different from Miller's. He

testified Miller did not explain Epstein waivers or any reimbursement waivers. He did

not "recall" whether Miller explained the waiver of final declarations of disclosure.

Amankonah testified Miller simply told him what to do, and he relied on her advice.

Amankonah also testified he did not "recall" telling Monson he would keep litigating

until "there's no more money left."

The parties were unable to complete the hearing in the half-day allotted. The court

continued the matter for 30 days.

2. Day two

Section 2105, subdivision (d) provides that a waiver of final declarations of

disclosure "shall include" five enumerated representations. To quote just one of the five

here by way of example, the parties must represent they both "have fully augmented the

preliminary declarations of disclosure, including disclosure of all material facts and

information regarding the characterization of all assets and liabilities, the valuation of all

assets that are contended to be community property or in which it is contended the

community has an interest, and the amounts of all obligations that are contended to be

8 community obligations or for which it is contended the community has liability."

(§ 2105, subd. (d)(3).)8

When the Code of Civil Procedure section 664.6 hearing resumed approximately

30 days later, it quickly became obvious that during the break, Amankonah's attorney had

developed a theory under section 2105, subdivision (d) to oppose enforcement of the

Agreement. With no advance notice to opposing counsel or the court, Amankonah's

attorney began asking questions about the Agreement's "Waive DOD" provision.

Amankonah testified the Agreement did not contain any of the five representations set

forth in section 2105, subdivision (d):

"Q: . . . Do you see anything in this document that says that both the parties, you and Ms. Monson, have complied with section 2104 and the preliminary declarations of disclosure that have been completed and exchanged?

"A: No, I don't.

"Q: . . . Do you see anything in this document that says that both parties have completed and exchanged a current income and expense declaration that includes all material facts and information regarding that party's earning accumulations and expenses?

"A: I don't see it. No.

"Q: Do you see anything in this document that says that both parties . . . have fully augmented the preliminary declaration of disclosures, including disclosure of all materials [sic], facts and information regarding the characterization of all assets . . . ."

"A: No, I don't."

8 For a complete list of the five representations that "shall" be made to constitute a valid waiver under section 2105, subdivision (d), see post, part II (B)(2). 9 Immediately after eliciting this testimony, Amankonah's attorney made an oral

"motion to dismiss the [Code of Civil Procedure section] 664.6 motion for lack of

jurisdiction" because "[t]he language in section 2105 of the Family Code is mandatory"

and none of those "conditions that we have just gone through are met."

Monson's attorney responded by stating he was "astounded" and the motion to

dismiss was "disingenuous."

The court asked Amankonah's attorney for "case authority[] for the proposition

that a . . . handwritten agreement signed by both parties where both parties are

represented by counsel is not enforceable . . . because every single word under the

requirements of [section] 2105 are not in the face of the [document]"? Amankonah's

lawyer stated he had no such authority, but "[t]he statute is clear" and "[y]ou don't need

case law."

Monson's attorney replied "[t]here is nothing in the responsive papers as to this

issue. There is [sic] no points and authorities on it. [¶] . . . [¶] [T]hey never raised the

issue until just now . . . . [¶] . . . [¶] And it's disturbing to me that suddenly we're doing

that. I could have done some research on it."

The court expressed similar dismay at the manner in which Amankonah's lawyer

made this argument with no advance notice, stating, "I don't have any points and

authorities. I don't have much to work with here."

Nevertheless, Monson's attorney insisted on completing the hearing, stating, "I

want to finish this today." The court obliged, stating, "We are going to work our way

through this today."

10 The court denied Amankonah's motion to dismiss. The court found "everything

was explained to [Amankonah] regarding the waiver of final DODs. And . . . he

knowingly and intelligently waived them, based on the testimony, the compelling

testimony of Ms. Miller."

3. Statement of decision

After closing arguments, the court announced an oral statement of decision, stating

in part:

"[T]his handwritten document, which is 11 pages in length, is initialed on each page by the parties. And also signed by the parties and their attorneys on the last page. This document was a result of nine hours of negotiations between the parties with the assistance of Judge Murphy.

"The court did listen to the testimony of Dr. Amankonah and Ms. Monson. And I do have voluminous notes of that testimony. And as I previously noted, I do find . . . the testimony of Ms. Miller to be compelling, and I did find Ms. Miller to be a credible witness.

"She [Miller] testified that the case was basically resolved in its entirety as a result of the agreement, that she reviewed all provisions and answered all questions of [Amankonah] throughout the process, and that she reviewed in detail every paragraph and answered all the questions, and had no doubt that [Amankonah] understood the terms of the agreement.

"She testified that the [section] 2640 credits were definitely part of the settlement and that she actually did explain the waiver of the DODs and [Amankonah] actually asked the question, what the purpose of the final DODs were, and would there be any harm by him waiving them. And then he agreed and understood that he was waiving the final DODs.

"She [Miller] has no doubt that he [Amankonah] knowingly and willingly signed the agreement. . . . [¶] . . .

11 " . . . I found portions of Dr. Amankonah's testimony to not be credible. . . . [¶] . . .

" . . . I do not find that Dr. Amankonah's positions, pursuant to [section] 664.6, [are] well taken.

"I do find that the agreement was voluntarily entered and knowingly entered. And that, again, I found the testimony of Ms. Miller to be very credible, and very, very compelling. [¶] . . .

"And then at page 10, that the agreement may be introduced or established as a Judgment pursuant to [Code of Civil Procedure section] 664.6 at page 10. I think it's all there. I think this is an enforceable agreement. This court will enforce it as a judgment."

After the hearing, the court entered written findings consistent with the oral

statement of decision and ordered that the Agreement "shall be entered as a Judgment of

the court pursuant to [Code of Civil Procedure section] 664.6." On April 17, 2015, the

court entered judgment. This appeal timely followed.

DISCUSSION

I. THE STANDARD OF REVIEW

"The trial court's factual findings on a motion to enforce a settlement under [Code

of Civil Procedure,] section 664.6 'are subject to limited appellate review and will not be

disturbed if supported by substantial evidence.' [Citation.] In instances involving

questions of law, including the construction and application of the statute, the trial court's

decision is not entitled to deference and will be subject to independent review." (Critzer

v. Enos (2010) 187 Cal.App.4th 1242, 1253.)

12

II. AMANKONAH WAS NOT PREJUDICED BY THE FAILURE

TO EXCHANGE FINAL DECLARATIONS OF DISCLOSURE

A. Family Code Disclosure Requirements

"Sound public policy favors the reduction of the adversarial nature of marital

dissolution by fostering full disclosure and cooperative discovery." (In re Marriage of

Jones (1998) 60 Cal.App.4th 685, 693.) To this end, the Family Code provides that

"'parties to marital dissolution proceedings have an affirmative duty to exchange both a

preliminary and a final declaration of disclosure, detailing all of their assets and

liabilities, prior to judgment being entered.'" (Woolsey, supra, 220 Cal.App.4th at p.

890.) "The preliminary declaration of disclosure provides a general inventory of the

parties' respective assets at the outset of dissolution proceedings. The final declaration

requires far more extensive disclosures." (Lappe v. Superior Court (2014) 232

Cal.App.4th 774, 780 (Lappe), fn. omitted.)

Here, it is undisputed the parties exchanged preliminary declarations of disclosure

in November 2013, approximately six months before the mediation. The issue in this

case involves the parties' attempted waiver of the statutory duty to exchange final

declarations of disclosure.

Section 2105, subdivision (a) requires final financial disclosures by providing in

part that, "[e]xcept by court order for good cause, before or at the time the parties enter

into an agreement for the resolution of property or support issues other than pendente lite

support, or, if the case goes to trial, no later than 45 days before the first assigned trial

date, each party, or the attorney for the party in this matter, shall serve on the other party

13 a final declaration of disclosure and a current income and expense declaration, executed

under penalty of perjury on a form prescribed by the Judicial Council, unless the parties

mutually waive the final declaration of disclosure."

The Family Code mandates that the final declaration of disclosure "shall include"

"[a]ll material facts and information" regarding (1) "the characterization of all assets and

liabilities," (2) "the valuation of all assets that are contended to be community property or

in which it is contended the community has an interest," (3) "the amounts of all

obligations that are contended to be community obligations or in which it is contended

the community has liability," and (4) "the earnings, accumulations, and expenses of each

party that have been set forth in the income and expense declaration." (§ 2105, subd.

(b).)

Subject to a few narrow statutory exemptions, discussed post, "[a] judgment

entered when the parties have failed to comply with the declaration of disclosure

requirements is subject to set aside to the extent the nondisclosure materially affected the

judgment." (Lappe, supra, 232 Cal.App.4th at p. 781; §§ 2105, subd. (c), 2106, 2107,

subd. (d).)9

9 Section 2105, subdivision (c) provides: "In making an order setting aside a judgment for failure to comply with this section, the court may limit the set aside to those portions of the judgment materially affected by the nondisclosure." Section 2106 provides in part: "Except as provided in subdivision (d) of Section 2105, Section 2110, or absent good cause as provided in Section 2107, no judgment shall be entered with respect to the parties' property rights without each party, or the attorney for that party in this matter, having executed and served a copy of the final declaration of disclosure and current income and expense declaration." 14 B. Exceptions to Exchange of Final Declarations of Disclosure

1. Good cause

"The mandatory declaration of disclosure requirements are subject to a few narrow

statutory exemptions." (Lappe, supra, 232 Cal.App.4th at p. 781.) Under section 2105,

subdivision (a), the court has discretion to excuse a party from serving a final declaration

of disclosure upon a showing of "good cause." A well-recognized family law treatise

states, "There is no statutory attempt to define what would amount to 'good cause.'

Apparently, the intent is to leave the decision in the court's sound discretion to

accommodate extraordinary circumstances that might otherwise unfairly impede entry of

judgment." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group

2015) ¶ 11:77.1, p. 11-20.)

2. Waiver

Section 2105, subdivision (d) states that on specified conditions, the parties may

waive exchanging final declarations of disclosure:

"(d) The parties may stipulate to a mutual waiver of the requirements of subdivision (a) concerning the final declaration of disclosure, by execution of a waiver under penalty of perjury entered into in open court or by separate stipulation. The waiver shall include all of the following representations:

"(1) Both parties have complied with Section 2104 and the preliminary declarations of disclosure have been completed and exchanged.

Section 2107, subdivision (d) provides in part: "Except as otherwise provided in this subdivision, if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error."

15 "(2) Both parties have completed and exchanged a current income and expense declaration, that includes all material facts and information regarding that party's earnings, accumulations, and expenses.

"(3) Both parties have fully complied with Section 2102 and have fully augmented the preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all assets and liabilities, the valuation of all assets that are contended to be community property or in which it is contended the community has an interest, and the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.

"(4) The waiver is knowingly, intelligently, and voluntarily entered into by each of the parties.

"(5) Each party understands that this waiver does not limit the legal disclosure obligations of the parties, but rather is a statement under penalty of perjury that those obligations have been fulfilled. Each party further understands that noncompliance with those obligations will result in the court setting aside the judgment."

3. Alternative Dispute Resolution Exception

"[P]arties to a marital dissolution action may opt out of litigation by agreeing to an

alternative dispute resolution mechanism that does not involve all of the formalities

required of an adversarial system of justice." (Woolsey, supra, 220 Cal.App.4th at p.

892.) Private mediation often offers a speedy and less expensive approach to resolving

issues arising from marital dissolution. "Requiring technical compliance with disclosure

rules designed for adversarial litigation would undermine the strong public policy of

allowing parties to choose speedy and less costly avenues for resolving their disputes.

Parties who agree to settle their dispute by private mediation may also agree to make

financial disclosures that do not meet the technical procedural requirements of sections

16 2104 and 2105. Thus, strict compliance with sections 2104 and 2105 is not required for

private mediations that address issues arising out of a marital dissolution." (Ibid.)

However, this exception is limited. Under Woolsey, the parties can agree that the

failure to comply with disclosure obligations under section 2105 will not affect the

validity of a settlement agreement reached in mediation. (Woolsey, supra, 220

Cal.App.4th at p. 892.)

However, section 2106 provides that "no judgment shall be entered with respect to

the parties' property rights without each party, or the attorney for that party in this matter,

having executed and served a copy of the final declaration of disclosure and current

income and expense declaration." Thus, once a party seeks to convert a mediated

settlement agreement into a judgment, normal statutory procedures applicable to trials are

triggered. Therefore, compliance with the declaration of disclosure requirements is a

prerequisite to entry of judgment confirming an arbitration award or a mediated

agreement settling the parties' property and/or support rights. (Elden v. Superior Court

(1997) 53 Cal.App.4th 1497, 1509-1510 (Elden); Lappe, supra, 232 Cal.App.4th at p.

782; Woolsey, supra, 220 Cal.App.4th at pp. 892-893.)

For example, in Elden, supra, 53 Cal.App.4th 1497, a couple agreed to arbitrate

the dissolution of their marriage. They failed to disclose their assets and liabilities either

at the outset or at the time of the award. The appellate court held the failure to disclose

was not fatal to the arbitration award, stating: "Although we recognize the public policy

reasons for the disclosure sections set forth within the Family Code, we conclude that the

parties to a dissolution who have agreed to engage in private arbitration of their property

17 issues are entitled to adopt other, more summary procedures for financial disclosure. . . .

If parties to a marital dissolution enter an agreement to settle their property or support

issues by private or nonjudicial arbitration, they may do so without complying with

section 2104 or section 2105. Thus, Husband and Wife here could arbitrate to an award

whether or not they had filed either preliminary declarations or final declarations." (Id. at

pp. 1508-1509.)

Nevertheless, the Elden court held that disclosure may be delayed, but not

necessarily avoided. Regardless of the procedures adopted in arbitration or mediation,

the parties are nonetheless required to execute and serve final declarations of disclosure

before the court may enter judgment, unless the court finds good cause to excuse final

declarations of disclosure or the parties validly waive such disclosures:

"Section 2106 provides that 'no judgment shall be entered with respect to the parties' property rights' where either of the parties fails to serve final declarations. We therefore hold that a trial court is precluded from entering any judgment, including one confirming an arbitration award settling marital property rights, until (1) the court finds good cause to find that no final declarations are necessary or (2) the parties have complied with section 2106. The only exception is that provided in section 2105, subdivision (c), of a written waiver or a formal stipulation." (Elden, supra, 53 Cal.App.4th at p. 1509.)

C. Analysis

The parties did not exchange final declarations of disclosure and the court did not

make a finding of good cause to excuse such nondisclosure. Therefore, under section

2106, the court was precluded from entering judgment unless the parties validly waived

exchanging final declarations of disclosure.

18 Under section 2105, subdivision (d), to constitute a valid waiver, the parties'

stipulation or agreement to waive final declarations of disclosure must contain the

following five representations: (1) "the preliminary declarations of disclosure have been

completed and exchanged"; (2) "[b]oth parties have completed and exchanged a current

income and expense declaration"; (3) "[b]oth parties . . . have fully augmented the

preliminary declarations of disclosure, including disclosure of all material facts and

information regarding the characterization of all assets and liabilities, the valuation of all

assets that are contended to be community property or in which it is contended the

community has an interest, and the amounts of all obligations that are contended to be

community obligations or for which it is contended the community has liability"; (4)

"[t]he waiver is knowingly, intelligently, and voluntarily entered into"; and (5) "[e]ach

party understands that this waiver does not limit the legal disclosure obligations of the

parties, but rather is a statement under penalty of perjury that those obligations have been

fulfilled. Each party further understands that noncompliance with those obligations will

result in the court setting aside the judgment." (§ 2105, subd. (d).)

The parties' Agreement in this case contains none of these representations. Rather,

it simply says, "Waive DOD." The attempted waiver in the Agreement is plainly

insufficient under section 2105, subdivision (d).

Nevertheless, Monson contends the court properly determined waiver because (1)

the Agreement states "Waive DOD," (2) Amankonah testified he reviewed the entire

agreement, (3) he signed voluntarily, (4) Miller explained to Amankonah the purpose of

waiving final disclosures and recommended he waive disclosure, (5) Amankonah agreed

19 to waive disclosures, (6) Amankonah understood the significance of waiving final

disclosures, and (7) the trial court expressly found Miller's testimony on these matters to

be credible.

Monson's argument is precluded by section 2106, subdivision (d), which states

waiver of final declarations of disclosure "shall include all" five of the statutorily

enumerated representations. As the court explained in Fell, supra, 55 Cal.App.4th at

page 1065, "Where the Legislature permits a particular, limited waiver of a right upon

satisfaction of a set of conditions, it intends that no other related waivers be permitted."

More recently, in 2014 the Court of Appeal in Lappe reached the same conclusion,

stating, "Unless the mandatory conditions specified in section 2105 are met, no purported

waiver is effective to excuse exchange of the prescribed final declarations." (Lappe,

supra, 232 Cal.App.4th at pp. 781-782.) In sum, "No form of stipulated waiver other

than as prescribed by [section] 2105 [subdivision] (d) will be effective to excuse

exchange of prescribed final declarations." (Hogoboom & King, Cal. Practice Guide:

Family Law, supra, at ¶ 11:81.1a, p. 11-23, italics omitted.)

Monson also argues the court's findings that Miller fully explained "Waive DOD"

and its ramifications to Amankonah, who knowingly agreed to the waiver, constitutes an

implicit finding of good cause to dispense with the disclosure requirement under section

2105, subdivision (a). However, although these findings are consistent with and would

support a finding of good cause—if one had been made—the court made no finding of

good cause. Rather, the court's ruling was based only on waiver. We cannot determine,

as a matter of law on this record, that good cause exists to excuse exchanging final

20 declarations of disclosure when the trial court made no such finding. (See Elden, supra,

53 Cal.App.4th at p. 1504, fn. 6 [refusing to imply a finding of good cause as a matter of

law].)10

Section 2106 provides that absent good cause to excuse exchange of final

declarations of disclosure, or valid waiver, "no judgment shall be entered with respect to

the parties' property rights without each party, or the attorney for that party in this matter,

having executed and served a copy of the final declaration of disclosure and current

income and expense declaration." Accordingly, here the court erred in entering the

Agreement as a judgment because the court did not make the requisite finding of good

cause, and the parties' attempted waiver was invalid because it did not contain the

10 On the first day of the hearing, Amankonah's lawyer offered to "put a stipulation on the record" that there was "no issue" regarding any provisions in the agreement other than Epstein and section 2640 credits. However, 30 days later, when the hearing resumed, counsel changed theories without advance notice and asserted judgment could not be entered on any provision in the Agreement because the attempted waiver of final declarations of disclosure was statutorily invalid. In preparing for hearings such as this one, opposing parties and judges rely on the representations that the parties' counsel make as to what issues and theories they will and will not pursue. This does not mean a party is forever after bound by whatever pretrial positions its counsel might take. Things may not proceed according to plan: new evidence comes to light, witnesses give unexpected testimony, mistakes become apparent, strategies change. But given Amankonah's counsel's prior assertions that he was contesting only the provisions regarding section 2640 and Epstein credits, he should have disclosed his change of theory to the court and opposing counsel. Instead, he sprang the argument in an oral motion to dismiss when there was no time for Monson's lawyer and the trial court to prepare to respond. That tactic alone may be responsible for the trial court not making a finding of "good cause" under section 2105, subdivision (a)—not because of an absence of good cause—but because neither the court nor counsel had a meaningful opportunity to research the relevant authorities.

21 mandatory representations required by section 2105, subdivision (d). The judgment

would have to be reversed unless the error is harmless.

Amankonah makes two related arguments concerning harmless error. First, he

contends the absence of a valid waiver under section 2105, subdivision (d) deprives the

trial court of "jurisdiction" to enter judgment in this case, making any harmless error

analysis simply irrelevant. Second, he contends the judgment must be reversed, even in

the absence of any prejudice from the lack of financial disclosure, because section 2107,

subdivision (d) provides in part, "The failure to comply with the disclosure requirements

does not constitute harmless error." Neither of these arguments has merit.

Amankonah cites no case holding that the obligation to exchange final

declarations of disclosure is jurisdictional. Moreover, existing case law states the

disclosure requirement in section 2105 is not jurisdictional. "Although compliance with

sections 2104 and 2105 is mandatory, failure to comply is not necessarily fatal." (In re

Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 336 [rejecting argument that

compliance with preliminary declaration of disclosure is jurisdictional].) More recently,

in Steiner, supra, 117 Cal.App.4th at pages 522, 524, the court held the failure to

exchange final declarations of disclosure under section 2105 did not give either party an

automatic right to a new trial or reversal without a showing of prejudice; i.e., a

miscarriage of justice. Implicit in Steiner's holding requiring a showing of prejudice is

that the disclosure requirement is not jurisdictional.

Steiner also refutes Amankonah's assertion that section 2107, subdivision (d)

precludes a harmless error analysis. In Steiner, supra, 117 Cal.App.4th at pages 526-527,

22 Division Three of this court held that notwithstanding section 2107, subdivision (d), in

the absence of some reasonably specific articulated showing of a miscarriage of justice,

failure to comply with the disclosure requirements is not reversible error. The court

concluded that section 2107, subdivision (d) was inconsistent with the "constitutional

mandate embodied in article VI, section 13 of our state Constitution that no judgment

may be set aside or new trial granted unless there has been a miscarriage of justice.'"

(Steiner, at p. 526.) Thus, the Steiner court held nondisclosure is a basis for vacating a

judgment only if the moving party shows he or she was prejudiced by the nondisclosure.

(Id. at p. 528.) Noting the appellant in Steiner had not shown how she was prejudiced by

the failure to exchange final disclosure statements, the court there concluded the

nondisclosure alone was not a basis for reversal.11 (Ibid.)

"The burden is on the appellant in every case to show that the claimed error is

prejudicial; i.e., that it has resulted in a miscarriage of justice." (Cucinella v. Weston

Biscuit Co. (1954) 42 Cal.2d 71, 82.) Prejudice is not presumed and must appear

affirmatively upon an examination of the entire record. "[T]he appellant bears the duty of

11 In Steiner, the court was also concerned about reversing a judgment under circumstances that would allow a party to deliberately not comply with disclosure or waiver requirements, keep silent, see if the trial results in an acceptable judgment, and then have the opportunity to obtain a better result "by pulling the non-disclosure card out of his or her sleeve on appeal . . . . That is the sort of absurdity of statutory result that courts simply do not countenance." (Steiner, supra, 117 Cal.App.4th at p. 528.) Similar concerns are present here because Amankonah did not serve his own final declaration of disclosure, consented to waiving the exchange of final declarations of disclosure, and initially challenged only portions of the Agreement dealing with section 2640 and Epstein credits. Only when that strategy failed (when the court believed Miller's testimony) did he contend the court was precluded from entering judgment because the waiver failed to comply with section 2105, subdivision (d). 23 spelling out in his brief exactly how the error caused a miscarriage of justice." (Paterno

v. State of California (1999) 74 Cal.App.4th 68, 106.) "Where any error is relied on for a

reversal it is not sufficient for appellant to point to the error and rest there. . . . The fact

of prejudice is just as essential as the fact of error." (Santina v. General Petroleum Corp.

(1940) 41 Cal.App.2d 74, 77.)

Amankonah has failed to show how he was prejudiced from the entry of judgment

in violation of section 2106. He has not attempted to identify any part of the judgment

where he has suffered loss because of the failure to exchange of final disclosure

declarations. There is nothing in the record indicating that Monson undervalued the

marital assets or failed to disclose any material fact that would have been included in her

final declaration of disclosure. Moreover, Amankonah's opening brief contains no such

assertion or any claim he suffered any distinct or specific prejudice from the lack of final

disclosure. Although Monson's respondent's brief contains six pages under the topic

heading, "Any Error by the Trial Court was Harmless Error Because Appellant Failed to

Show Prejudice," Amankonah elected to not file a reply brief. Because Amankonah has

not met his burden of showing a miscarriage of justice or prejudice, the parties' failure to

exchange disclosure declarations, and failure to validly waive such requirement, is

harmless error and does not support reversal of the judgment in this case. (Steiner, supra,

117 Cal.App.4th at p. 522 [failure to comply with disclosure statutes "does not constitute

24 a 'get-a-new-trial-free' card, giving" a party an automatic reversal "where there is no

showing of a miscarriage of justice"].)12

DISPOSITION

The judgment is affirmed. Petrea Monson to recover costs on appeal.

NARES, Acting P. J.

WE CONCUR:

O'ROURKE, J.

PRAGER, J.*

12 Because the judgment must be affirmed on this basis, it is unnecessary to consider Monson's argument that Amankonah's appeal should be dismissed under the disentitlement doctrine.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 25