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Filed 8/27/21 Marriage of Ward CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of DONNA 

WARD and THOMAS ALLEN 

WARD.

DONNA WARD,

Respondent.

v.

THOMAS ALLEN WARD,

Appellant.

 A159250

 (Contra Costa County

 Super. Ct. No. MSD16

 -03246)

Thomas Allen Ward (husband) appeals from a judgment denying his 

motion to quash writs of execution filed by Donna Ward (wife) to enforce a 

judgment in their divorce action and to declare that judgment to be fully 

satisfied. He argues the writs did not accurately reflect what he owed and 

that he was entitled to offsets for rent and damage to a home that was 

awarded to him as his separate property. Husband also challenges the trial 

court’s award of attorney fees as a sanction under Family Code section 271.1 

We affirm.

1 Further statutory references are to the Family Code unless otherwise 

indicated.
2

I. BACKGROUND

Wife filed a divorce petition in 2016 after 32 years of marriage. She 

continued living in the family home. On November 16, 2018, the parties, 

each represented by counsel, signed a Stipulation and Order for Division of 

Property (settlement agreement) resolving all issues except spousal support. 

Paragraph 1 of the settlement agreement provided, “The community 

residence [in Moraga] shall be assigned to [husband] as his sole and separate 

property subject to the following terms: [¶] a. Within 30 days of execution of 

this agreement, [husband] shall provide proof of his ability to prequalify to 

buy out [wife’s] interest in the residence [for] $464,000.00. [¶] . . . [¶] (d)

Upon completion of the terms outlined herein and upon receipt of the agreed 

upon equalization payment by [wife], [wife] shall vacate the residence within 

30 days of receipt, or by January 2, 2019, whichever happens second.” 

Paragraph 8 provided, “The parties agree to mutually waive credits owed to 

each other pursuant to Marriage of Epstein and Marriage of Watts.” (See In 

re Marriage of Epstein (1979) 24 Cal.3d 76, 84–85 (Epstein), superseded on 

other grounds as stated in In re Marriage of Walrath (1998) 17 Cal.4th 907, 

914; In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374 (Watts).)

Paragraph 12 provided that a certain Bank of America account was 

community property and that $21,415 would be transferred to wife within 45 

days. The settlement agreement also divided other property and required 

equalizing payments that are not at issue here.

In December of 2018, the court held a trial on the issue of support and 

issued a statement of decision awarding wife monthly support of $5,000 

(reduced to $4,000 in 2022), along with $4,000 in temporary support arrears. 

It also ordered husband to contribute $24,000 to wife’s attorney fees, to be 

paid at a rate of $1,000 per month. (See § 2030.) Husband appealed these 
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orders and we affirmed in an unpublished opinion. (In re Marriage of Ward

(April 29, 2020, A156599) [nonpub. opn.].)2

Meanwhile, while his appeal was pending, husband refinanced the 

family home in March 2019 and paid wife the equalization payment for the 

home as provided in their settlement agreement. Wife moved out in April 

2019. Husband paid wife only $7,315 toward the attorney fees, support 

arrearages and division of the remaining property that he had been ordered 

to pay, and he took the position that the remaining amount he owed had been 

satisfied because he was entitled to offsets against the judgment for wife’s 

use of the property after it was awarded to him and for wife’s damage to the 

property while it was under her control. 

When efforts to meet and confer about the delinquent payments were 

unsuccessful, wife obtained writs of execution issued to the sheriffs of Contra 

Costa County and Los Angeles County, where husband had bank accounts. 

Due to the error of wife’s counsel, the amount sought by the writs ($49,415 

for the unpaid balance plus fees and interest) did not reflect the $7,315 

payment that had been made by husband. 

The Los Angeles County Sheriff delivered notice of levy to Bank of 

America, where husband had a bank account, but husband had by that time 

closed the account. The error in the amount stated in the writs was 

discovered by the parties, and wife’s counsel conferred with husband, who by 

then represented himself, concerning this error. Counsel represented that 

she would not be attempting to serve any additional writs with the incorrect 

amount noted. 

Husband filed a Motion to Quash Writs of Execution and to Declare 

Judg[]ment Satisfied” on October 2, 2019, in which he argued that the 

2 We take judicial notice of this opinion. (Evid. Code, § 452, 459.)
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judgment against him should be declared satisfied because (1) wife owed rent 

from November 2018 to April 2019 on the family home as well as half of the 

property taxes from 2018; (2) wife damaged the family home while she 

resided there; and (3) husband had paid wife $7,315 toward the judgment 

that was not reflected in the writs of execution. The court denied husband’s 

ex parte application for an order shortening time to hear the motion to quash 

and set the matter for a hearing. 

Counsel for wife advised husband by email that the motion was moot 

because the Bank of America account in Los Angeles County had been closed 

and she would not be taking steps to have the Contra Costa County writ 

served because it stated the incorrect outstanding amount. Husband 

responded that his motion contained “two parts, a first part to Quash the 

Writ, and a second part with a Declaration of Judgment Satisfaction. The 

second part is not moot, so it is not necessary to remove the motion from [the] 

calendar.” 

The court denied the motion after a hearing held on November 6, 2019. 

It found that a writ of execution was an appropriate remedy (see In re 

Marriage of Farner (1989) 216 Cal.App.3d 1370, 1376–1378 [court must 

determine whether writ of execution proper remedy for enforcing an order in 

a family law case]), and that husband owed wife $42,100 under the terms of 

the judgment, an amount which reflected the $7,315 payment that husband 

had made.

3 It denied husband’s requests for offsets against the judgment

based on rent and property taxes for the period when wife lived in the family

3 The original judgment included $21,415 for wife’s community interest 

in the Bank of America account, plus $24,000 in attorney fees, plus $4,000 for 

arrears of temporary spousal support, for a total of $49,415. When the $7,315 

payment made by husband is subtracted from this amount, this leaves the 

$42,100 that the court stated was owed under the judgment. 
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home, noting the parties had waived Watts charges and Epstein credits in the 

settlement agreement. The court ordered husband to pay $7,900 of wife’s 

attorney fees as a sanction under section 271. 

II. DISCUSSION

A. Errors in Writs of Execution

Husband argues that it was error for the court to deny his motion to 

quash because the writs of execution included the full amount originally owed 

under the judgment and did not account for the $7,315 husband had already 

paid to wife. Wife agrees the $7,315 was paid, and that the writs misstated 

the amount owed under the original judgment, but she argues the writs are 

“essentially ineffective” and that enforcement proceedings will need to be 

initiated anew. 

Given the undisputed error, arguably the court should have partially 

granted the motion. (See In re Marriage of Peet (1978) 84 Cal.App.3d 974, 

977–978 [affirming order partially quashing writ to reflect offset].) We 

conclude, however, that the issue is moot because an appellate ruling to this 

effect would “have no practical effect or cannot provide the parties with 

effective relief.” (Californians for Alternatives to Toxics v. Department of 

Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.)

At the hearing on the motion to quash, counsel for wife represented as 

an officer of the court that the amount stated in the writs was incorrect and 

that “any further enforcement will reflect the correct amount owed.” The 

court indicated that only $42,100 was still owed under the original judgment 

and that counsel “will correct the writ of execution to be $42,100.” This was 

the proper amount of the unpaid balance of the original judgment reflecting 

husband’s $7,315 payment. 
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Wife’s counsel has not taken steps to serve the writ in Contra Costa 

County and the attempt to levy in Los Angeles County was unsuccessful 

because husband had closed his bank account. Under the circumstances, a 

reversal would serve no practical purpose.

B. Order that Husband Pay the Full Amount of Attorney Fees

Husband argues that the court erred in ruling that he owed $42,100 

under the judgment because this included the full amount of the $24,000 in 

attorney fees ordered and those fees were not yet fully due at the time the 

motion to quash was heard. We agree with wife that this claim is also moot.

Husband reasons that because the original order allowed him to pay 

the attorney fees at a rate of $1,000 a month, only a portion of the total 

amount was owed when the hearing on the motion to quash was held in 

November 2019. He notes that the first appeal, which challenged the 

attorney fee award, was still pending and that consequently, the court did not 

have jurisdiction to modify the attorney fee order by “accelerat[ing]” it so that 

the full $24,000 was then owed. (See Paul Blanco’s Good Car Company Auto 

Group v. Superior Court (2020) 56 Cal.App.5th 86, 97; In re Marriage of 

Varner (1998) 68 Cal.App.4th 932, 936 [timely appeal generally divests a trial 

court of jurisdiction over any matter affected by the appeal].)

Assuming the court could not order husband to pay the full amount of 

the $24,000 in attorney fees when the hearing on the motion to quash was 

held in November 2019 because under the original judgment, only a portion 

of the fees was then owed, that is no longer true. As husband acknowledges, 

his obligation to pay the fees was not stayed during the first appeal because 

he failed to post an undertaking (Code of Civ. Proc., § 917.1, subd. (a)), and he 

was required to pay $1,000 per month starting in December 2018. The full 

$24,000 was due December 2020; thus, at this point, husband owes the full 
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amount of the fees (which were affirmed in the first appeal). “ ‘ “An appellate 

court will not review questions which are moot and which are only of 

academic importance.” ’ ” (Friends of Bay Meadows v. City of San Mateo

(2007) 157 Cal.App.4th 1175, 1192 (Friends).)

C. Watts Charges

Husband argues the court’s calculation of the amount owed under the 

judgment should have included an offset for rents owed by wife for the time 

that she lived in the family home after the original judgment was entered.

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We disagree.

Where one spouse has the exclusive use of a community asset after 

separation, that spouse may be required to compensate the community for 

the reasonable value of that use. (In re Marriage of Falcone & Fyke (2012) 

203 Cal.App.4th 964, 978 (Falcone); see § 2626.) “The right to such 

compensation is commonly known as a ‘Watts charge.’ ” (Falcone, supra, 203 

Cal.App.4th at p. 978; see Watts, supra, 171 Cal.App.3d at p. 374.) 

Husband acknowledges that he waived Watts charges as part of the 

settlement agreement, but he argues this waiver does not apply to charges 

accrued after the house was awarded to him as his separate property. He 

assumes that Watts charges, which compensate the community, can only be 

applied during the period “between separation and trial.” (Falcone, supra, 

203 Cal.App.4th at p. 978.) He argues that this means Watts charges could 

not have been assessed after the trial in December 2018 (which resolved 

those issues not resolved by the November 2018 settlement agreement), and 

4 In the trial court, husband argued that wife should have paid one-half 

of the property taxes on the family home in 2018. He appears to have 

abandoned this basis for claiming offset on appeal.
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his waiver of Watts charges in the settlement agreement did not apply to 

rents that would otherwise be owed after the trial.

We do not agree with the premise that the date of final judgment or 

dissolution marks a bright line after which no Watts charges may be 

assessed. In In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552–553, 

the court recognized that Watts charges could be made when one party made 

exclusive use of the family home from the date of separation until the date 

“the community itself no longer held an interest in the residence.” Here, the 

settlement agreement gave wife the right to stay in the property until 30 

days after husband refinanced and paid her an equalizing payment equal to 

half of the equity in the home.

5 The community thus had an interest in the 

property until 30 days after the equalizing payment was made, and Watts

charges could have been assessed up until that point absent a waiver. The 

waiver of Watts charges in the settlement agreement continued to apply

while wife lived in the home waiting for her equalization payment. There is 

no evidence wife stayed in the home longer than the date contemplated, and 

the trial court did not err in denying an offset.

D. Offset for Damage Allegedly Caused by Wife

Husband argues that the court’s calculation of the amount owed under 

the original judgment should have been reduced to reflect an offset for $6,000

worth of damage he alleges wife caused to the marital home while she lived 

there. He presented no evidence below in support of this claim. Husband 

5 Although husband suggests that wife should have moved out of the 

home upon her receipt of a $10,000 equalization payment pertaining to 

property other than the marital home, a fair reading of the settlement 

agreement is that the 30-day period for wife to vacate the home was triggered 

by her receipt of the proceeds from the refinancing, which did not occur until 

March 2019. 
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argues he was precluded from offering such evidence by the court’s ruling 

that Watts charges had been waived. But damage to the home is not a Watts

charge, and if husband had possessed evidence of damage that he wanted the 

court to consider, he should have made an offer of proof. Husband has not 

carried his burden of showing he was entitled to an offset. (See Conrad v. 

Ball Corp. (1994) 24 Cal.App.4th 439, 444 [“A defendant seeking an offset 

against a money judgment has the burden of proving the offset.”].)

E. Section 271 Fees

The court awarded $7,900 in attorney fees under section 271, which 

provides that a family court may impose an award of attorney fees and costs 

“in the nature of a sanction” where the conduct of a party or attorney 

“frustrates the policy of the law to promote settlement of litigation.” (§ 271, 

subd. (a).) A purpose of the statute is “to reduce the cost of litigation by 

encouraging cooperation between the parties and attorneys.” (Ibid.) 

Husband argues there was no basis for making this award. We disagree. 

We review the sanction order for abuse of discretion and reverse 

“ ‘ “ ‘only if, considering all the evidence viewed most favorably in support of 

its order, no judge could reasonably make the order.’ ” ’ ” (In re Marriage of 

Feldman (2007) 153 Cal.App.4th 1470, 1478.) The court here could 

reasonably conclude that the writs of execution in this case were necessary 

only because husband made a unilateral and meritless claim that the 

judgment had been satisfied because he was entitled to offsets against what 

he owed. 

Husband argues that wife made no showing she incurred any fees 

because of the hearing on the motion to quash. We disagree. Wife’s counsel 

presented evidence that she had made a number of attempts to meet and 

confer and eliminate the need for a hearing, but husband declined to take the 
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matter off calendar. Counsel also presented evidence that wife had incurred 

over $17,000 in attorney fees since January 2019 due to her efforts to obtain 

amounts due to her under the judgment. There was a sufficient relationship 

between the fees and costs actually incurred and the award. (See 

Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1154–1155 [§ 271 award 

must be tethered to attorney fees and costs].)

Husband argued at the hearing on the motion to quash that he acted in 

the good faith belief that he was entitled to have the judgment declared 

satisfied. But in order to be sanctionable under section 271, conduct need not 

rise to the level of bad faith or frivolousness. (In re Marriage of Norton (1988) 

206 Cal.App.3d 53, 58–59 [interpreting predecessor statute to § 271].)

Husband suggests the judge presiding over the motion to quash was 

biased, noting (1) she denied his ex parte request to quash the writs of 

execution by writing “denied” on the request with “a big x through the order;”

(2) she made the comment, “So if you want to have a trial to discuss how you 

should not be responsible for all of this stuff outstanding, we can do that;”

and (3) she set the amount of sanctions under section 271 at an amount “to 

substantially match” the amount husband had already paid wife toward 

satisfying the judgment ($7,900 in section 271 fees versus $7,315 already 

paid). These circumstances do not demonstrate bias or suggest the judge 

predetermined the issues.

III. DISPOSITION

The order denying the motion to quash and to declare the judgment 

satisfied is affirmed. Ordinary fees on appeal are awarded to wife.
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NEEDHAM, J.

We concur.

SIMONS, Acting P.J.

RODRIGUEZ, J. *

Ward v. Ward / A159250

* Judge of the Superior Court of Alameda County, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.