Filed 9/16/16 Marriage of Kassel CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of ROBERT I. and

CAROLINE KASSEL.

ROBERT I. KASSEL,

 Respondent,

v.

CAROLINE KASSEL,

 Appellant.

 G050803

 (Super. Ct. No. 09D004196)

 O P I N I O N 

Appeal from a postjudgment order of the Superior Court of Orange County, 

Glenn R. Salter, Judge. Reversed.

Phillips Whisnant Gazin Gorczyca & Curtin, and J. Benedict Phillips for 

Appellant.

StephenTemko for Respondent.

* * *
2

Caroline Kassel appeals from the postjudgment order granting the petition 

of her ex-husband Robert I. Kassel to terminate spousal support. The court found she had 

cohabitated with her boyfriend David Williams within the meaning of their marital 

settlement agreement (MSA) allowing spousal support obligations to “cease to be due”

upon Caroline’s “cohabitation.” The court did not award attorney fees or costs to either 

party.

1 

Caroline contends the order should be reversed for several reasons. First, 

there was insufficient evidence of cohabitation. Second, the court should not have 

terminated its jurisdiction over spousal support because the marriage was of long duration

and there was no contrary written agreement or court order. Third, the court should have 

set aside the judgment rather than terminate its jurisdiction. And fourth, it should have 

awarded her attorney fees and costs.

We conclude the evidence was sufficient to support a finding of 

cohabitation for the purpose of invoking the rebuttable presumption under Family Code 

section 4323, subdivision (a)(1), that Caroline’s need for support had decreased. The 

MSA, however, treated cohabitation and remarriage identically. For that reason, we 

conclude that the characteristics of the cohabitation, as that term is used in the MSA, are 

the same as found in a relationship, akin to marriage, by which each partner by words or 

conduct has evidenced a commitment to care for the other, such that Caroline is no longer 

in need of support from Robert. The court made no finding that Caroline’s alleged 

cohabitation with Williams was of that quality. Accordingly, we reverse for a new trial

to determine whether Caroline’s cohabitation was such a relationship resulting in the loss 

of any need for Robert’s support. It follows that we must also reverse the court’s finding 

that its jurisdiction over this long term marriage was terminated.

 

1

For ease of reference and clarity, we will refer to the parties by their first 

names. No disrespect is intended.
3

FACTS AND PROCEDURAL BACKGROUND

The parties married in June 1991 and separated in May 2009. They entered

into a marital settlement agreement (MSA) in May 2012, that was incorporated into a 

judgment of dissolution filed in June 2012. At issue is the following provision: 

“[Section 2.5.3] The spousal support payments required by Section 2.5.2 shall cease to 

be due on the earliest of the death of [Robert], the death of [Caroline], the cohabitation of 

[Caroline] or the remarriage of [Caroline].” 

The Competing Requests for an Order (RFO)

In July 2013, Robert filed a RFO to terminate spousal support based on 

Caroline’s alleged cohabitation with someone. Caroline filed a responsive declaration 

denying she had “cohabitated with another person at any point in time after the Judgment 

was filed.” She attested she had not shared her residence with anyone other than her 

children, that although Williams had previously been her boyfriend, he never lived with 

her and they were no longer in a relationship. She believed he had an apartment in Aliso 

Viejo, as well as “a place [to] stay with his mother . . . .” In her supporting points and 

authorities, Caroline argued the word “cease” meant “suspend,” not “terminate,” and she 

had not waived her right to spousal support or agreed that it be terminated upon 

cohabitation. Caroline requested attorney fees and sanctions.

Robert’s reply declaration also requested sanctions because Caroline’s 

statements were false and controverted by other evidence. In August 2012, only three 

months after the MSA was signed, Robert hired an investigator who reported he saw 

Williams’ car “coming and going from [Caroline’s] residence” and spending the night on 

almost a daily basis. Surveillance showed this again in October and December 2012, as 

well as February, March, April, May, and June 2013. On multiple occasions, Williams 

was observed leaving Caroline’s residence “wearing different clothes” from the night 
4

before although he had “never been seen carrying a suit case.” Additionally, Robert

received three AAA insurance cards, available only to members of the same residence, 

and one of which had Williams’ name on it. Robert also received a holiday card from his 

former sister-in-law, which stated “From our family to yours” and included a photograph 

showing Williams standing next to Caroline. He opposed Caroline’s request for attorney 

fees. 

In October 2013, the parties stipulated, and the court ordered, the parties 

would testify in person at the hearing on Robert’s RFO, the testimony of third party 

witnesses would be submitted through their depositions in lieu of live testimony, rulings 

on legal issues would be made after presentation of evidence regarding cohabitation, and 

spousal support for October 2013 forward would be paid into a trust account, with 

$10,000 to be paid to Caroline’s counsel subject to the court’s ruling after the hearing. 

The hearing on Robert’s RFO was continued to March 13, 2014. 

In November 2013, Caroline filed her own RFO for attorney fees and for an 

upwards modification of spousal support. She conceded that if the court found she had 

cohabitated, she would not be entitled to spousal support during the period of 

cohabitation but believed her support would only be suspended, not terminated. 

Although she admitted she had been in a relationship with Williams for two years, she 

denied having been in one with him since August 2013 or ever cohabitating with him. 

She requested that, if the court determined she had cohabitated with him, to find that was 

no longer the case, order her spousal support be suspended for the period of cohabitation, 

and to make a new support order. 

At the initial hearing on Caroline’s RFO, the parties stipulated to the 

amounts Robert had the ability to pay for spousal support and towards Caroline’s 

attorney fees and costs, and that the fee was “financially reasonable . . . should the [c]ourt 

make” such an award. The court so ordered and made no other findings at that time. 
5

Both parties requested a statement of decision on the issues of spousal support, 

cohabitation and attorney fees. 

The Court’s Ruling

At the March 2014 trial on the RFOs, the court heard testimony and 

admitted into evidence numerous deposition transcripts, investigative reports, and 

miscellaneous exhibits, and took judicial notice of various declarations, stipulations of 

the parties. After trial, the court took the matter under submission and thereafter issued a 

detailed ruling.

The court granted Robert’s request to terminate spousal support and denied 

Caroline’s request to modify spousal support. In doing so, the court interpreted the 

meaning of “cohabitation” and “cease to be due” as used in the MSA. But because 

neither term or phrase was defined in the MSA, the court looked to relevant statutes and 

case law. 

For the meaning of “cohabitation,” the court examined three cases 

discussing Family Code section 4323,

2

which provides in relevant part: “(a)(1) Except as 

otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting 

the burden of proof, of decreased need for spousal support if the supported party is 

cohabiting with a nonmarital partner. Upon a determination that circumstances have 

changed, the court may modify or terminate the spousal support . . . . [¶] (2) Holding 

oneself out to be the spouse of the person with whom one is cohabiting is not necessary 

to constitute cohabitation as the term is used in this subdivision.” In the court’s words, In 

re Marriage of Thweatt (1979) 96 Cal.App.3d 530 (Thweatt) “held it was not 

cohabitation when a woman had what is similar to a boardinghouse arrangement with a 

man. In [In re Marriage of Geraci (2006) 144 Cal.App.4th 1278] and [In re Marriage of 

 

2

All further statutory references are to the Family Code.
6

Bower (2002) 96 Cal.App.4th 893], however, the appellate courts emphasized that 

cohabitation involves a sexual or romantic component and includes significant financial 

entanglements.”

Applying these cases to the facts, the court found it “clear [Caroline] and 

Williams had a sexual, if not a romantic, relationship for more than three years. They 

slept together in the same bedroom overnight; indeed, [Caroline] said they slept together 

unless they were fighting and then Williams slept on the couch. They indicated on social 

media websites they were in a relationship with the other person. The court does not 

accept Williams’ assertion that the statement on his social media website about their 

relationship was put there by someone else; it is inconsistent with the other evidence in 

the record. They went on many vacations together. They celebrated holidays and 

birthdays together. When Williams left the house one day [Caroline] walked out in a 

blanket looking like she had just awakened. 

“It is clear they lived together. Williams referred to the residence as ‘his 

house.’ He helped [Caroline] find a house [the one they cohabited] and he would have 

been on the lease if his credit had been good. He helped take care of [Caroline’s] son 

when she was away. He admitted at one point that he spent ten to twenty days a month at 

her house. His later assertion he spent four days a week with his mother in Riverside is 

not credible and is inconsistent with the testimony of the neighbors. His clothes were at 

[Caroline’s] house, and he was seen by a private investigator coming out of the house on 

different days in different clothes and driving away. They both assert Williams did not 

have a key to the house or a garage door opener but that is not dispositive because he was 

there whenever [Caroline] was there and would have had little need under the 

circumstances for a key. [Caroline] was upset Williams did not do more chores around 

the house and that he sat around on the couch watching football.
7

“It is uncertain whether they had any financial entanglements. Williams 

told others that he paid rent, but there was no documentary or other evidence to support 

the assertion which Williams later appeared to disavow. [Caroline] stated they did not 

share bank accounts or credit cards. And she indicated that, at least for the New York 

trip to the U.S. Open, that they shared the vacation expenses. But this arrangement is 

very similar to many married couples today: each partner keeps their own money 

separate and they share the expenses.”

Based on these facts, the court found Caroline “has cohabitated as that term 

is understood in the [MSA].”

As to the phrase “cease to be due,” the court quoted section 4334, 

subdivision (a)’s provision that “[i]f a court orders spousal support for a contingent 

period of time, the obligation of the supporting party terminates on the happening of the 

contingency.” According to the court, “[t]he inclusion of a cohabitation provision within 

the [MSA] is a contingency; that is, spousal support payments are due unless [Caroline] 

cohabits. Even [Caroline] accepts that a finding of cohabitation means at least for the 

period of cohabitation that spousal support payments are not due.”

The court stated that section 4334, subdivision (a), “provides that on the 

‘happening of the contingency’ the spousal support award ‘terminates.’ Nothing in the 

[MSA] suggests the general statutory remedy of termination has, or was intended to be 

superseded by, the use of the phrase ‘cease to be due.’ The standard dictionary definition 

of cease is to come to an end, to stop. The standard dictionary definition of terminate is 

the same. It is a reasonable interpretation of the phrase ‘cease to be due’ that it means 

spousal support is to terminate.”
8

“[Caroline] asserts this section was only meant to stop spousal support 

during the period of cohabitation. Nothing in the MSA supports that interpretation of 

what is clear. Even if such an interpretation were reasonable, the burden of proof would 

be on [Caroline] to show that was the intent. Given it is unlikely parole evidence would 

be admissible, this court is puzzled by what evidence [Caroline] could produce. The 

court finds [Caroline’s] interpretation inconsistent with the terms of the [MSA] 

and . . . section 4334.” The court thereafter ordered Caroline to “refund the spousal 

support payments paid during the period of cohabitation” based on section 4334, 

subdivision (b), which requires such refund if a supported party fails to notify the 

supporting party “of the happening of the contingency and continues to accept spousal 

support payment.”

Additional relevant facts will be set forth in the discussion of the issues.

DISCUSSION

The Meaning of “Cohabitation” as Used by the Parties’ in Their MSA

1. Standard of Review

Caroline asserts the standard of review is de novo. She is partially correct. 

“‘“Marital settlement agreements incorporated into a dissolution judgment are construed 

under the statutory rules governing the interpretations of contracts generally.”’

[Citation.] We conduct an independent review of the MSA that is the subject of the 

appeal. [Citations.] We construe the MSA under the rules governing the interpretation of 

contracts generally. [Citations.] [¶] As has often been restated: ‘“The fundamental goal 

of contractual interpretation is to give effect to the mutual intention of the parties. 

[Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the 

other hand, ‘[i]f the terms of a promise are in any respect ambiguous or uncertain, it must 

be interpreted in the sense in which the promisor believed, at the time of making it, that 
9

the promisee understood it.’ [Citations.] [Citation.] “The mutual intention to which the 

courts give effect is determined by objective manifestations of the parties’ intent, 

including the words used in the agreement, as well as extrinsic evidence of such objective 

matters as the surrounding circumstances under which the parties negotiated or entered 

into the contract; the object, nature and subject matter of the contract; and the subsequent 

conduct of the parties.”’” (In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 

1012-1013.)

“Questions of fact concern the establishment of historical or physical facts; 

their resolution is reviewed under the substantial-evidence test. Questions of law relate to 

the selection of a rule; their resolution is reviewed independently. Mixed questions of law 

and fact concern the application of the rule to the facts and the consequent determination 

whether the rule is satisfied. If the pertinent inquiry requires application of experience 

with human affairs, the question is predominantly factual and its determination is 

reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical 

consideration, in a factual context, of legal principles and their underlying values, the 

question is predominantly legal and its determination is reviewed independently.” 

(Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) 

Thus, we independently determine the meaning of the word “cohabitation” by critically 

considering the “legal principles and their underlying values,” in the context of an MSA 

providing for termination of spousal support upon cohabitation. (Ibid.) We then 

determine whether substantial evidence supports the meaning we have determined.

2. Relevant Legal Principles and Their Underlying Values in the Context 

of the Parties’ MSA

First, we consider “‘the object, nature and subject matter of the contract.’” 

(In re Marriage of Hibbard, supra, 212 Cal.App.4th at p. 1013.) We note the context in 

which the word “cohabitation” is used in the MSA. “The spousal support payments 
10

required by Section 2.5.2 shall cease to be due on the earliest of the death of [Robert], the 

death of [Caroline], the cohabitation of [Caroline] or the remarriage of [Caroline].” 

Significantly, the word “cohabitation” is paired with other events, death and remarriage,

in which Caroline’s need for support is terminated as a matter of law. “[T]he obligation 

of a party under an order for the support of the other party terminates upon the death of 

either party or the remarriage of the other party.” (§ 4337.) Death of the supported 

spouse obviously ends both the supported spouse’s need for support, and the correlative 

obligation of the supporting spouse. And the remarriage of a supported spouse ends the 

need for support from the former spouse because another person has undertaken that 

responsibility as a matter of law.

Normally, the cohabitation of a supported spouse merely raises “a 

rebuttable presumption, affecting the burden of proof, of decreased need for spousal 

support . . . .” (§ 4323, subd. (a).) But here, the parties agreed in their MSA that 

cohabitation would have an effect beyond that of merely creating a rebuttable 

presumption. They decided “cohabitation” would have the same effect as death and 

remarriage. And because both the need for support and the obligation to support is 

eliminated upon death or remarriage, we conclude the parties also contemplated that 

“cohabitation,” as that word is used in the MSA, would result in a termination of Robert’s 

obligation to provide spousal support for the same reason — namely, the elimination of

Caroline’s need for support.

“At common law, the term ‘cohabitation’ means to live together as husband 

and wife.” (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 292.) “After 1902, the 

appellate courts settled on the definition [of cohabitation] as stated that year in Estate of 

Mills (1902) 137 Cal. 298, 301 [70 P. 91]: ‘The word “cohabiting,” . . . means the living 

together of a man and woman ostensibly as husband and wife.” (People v. Ballard

(1988) 203 Cal.App.3d 311, 317-318.) “The accepted California concept of cohabitation 

is the mutual assumption of those marital rights, duties and obligations which are usually 
11

manifested by married people, including but not necessarily dependent upon sexual 

relations.” (Boyd v. Boyd (1964) 228 Cal.App.2d 374, 381, italics added.) Marital rights, 

duties and obligations include the parties’ mutual right and obligation to support each 

other. (See §§ 4300 [“a person shall support the person’s spouse”], 4301 [“a person shall 

support the person’s spouse while they are living together out of the separate property of 

the person when there is no community property or quasi-community property”].) Thus, 

the word “cohabitation,” as used in the context of this MSA, included the requirement 

that Caroline’s cohabitant would have evidenced by words or conduct his commitment to 

provide for her support, and she likewise would have evidenced by words or conduct her 

commitment to provide for his support. Any other interpretation would essentially reflect 

a moral judgment — that living together with a person of the opposite sex in an 

uncommitted, nonmarital, but romantic and sexual manner, would by itself eliminate the 

need for support. Such an interpretation would upend California’s long established 

system of no-fault divorce.

As pointed out by Caroline, the most recent California cases discussing the 

issue of post-dissolution cohabitation have emphasized the potential that a supported 

spouse’s needs may be decreased upon cohabitation. In In re Marriage of Geraci (2006) 

144 Cal.App.4th 1278, the court explained the significance of cohabitation in the context 

of addressing whether the presumption of decreased need under section 4323 could be 

applied to an initial award of support. “‘Cohabitation may reduce the need for spousal 

support because “sharing a household gives rise to economies of scale. [Citation.] Also, 

more importantly, the cohabitant’s income may be available to the obligee spouse.” 

[Citation.]’ ‘[T]he Legislature created the presumption . . . based on thinking that 

cohabitation . . . creates a change of circumstance so tied in with the payment of spousal 

support as to be significant enough by itself to require a re-examination of whether such 

need for support continues in such a way that it still should be charged to the prior 

spouse.’” (Geraci, at p. 1298-1299, fn. omitted.) But the parties here went beyond the 
12

presumption of decreased need under section 4323. By their agreement, they equated 

“cohabitation” with death and remarriage, thereby equating cohabitation with a living 

arrangement by which Caroline had no further need for support. We conclude that the 

objective manifestation of the parties’ intent, their placement of “cohabitation” 

paralleling death and remarriage, establishes the meaning of “cohabitation” in the context 

of their MSA: In this context, “cohabitation” means a “mutual assumption of marital 

rights, duties and obligations which are usually manifested by married people” (Boyd v. 

Boyd, supra, 228 Cal.App.2d at p. 381), including a commitment by both Caroline’s 

cohabitant and Caroline to provide for each other.

3

To be clear, we do not hold that the meaning of “cohabitation” we have 

attributed to that word, as used in the parties’ MSA, has universal application. A more 

attenuated relationship may well constitute cohabitation for other purposes, such as 

creating a rebuttable presumption of decreased need under section 4323. And nothing in 

this opinion prohibits the application of section 4323 to modify, or even eliminate, 

spousal support under that statute. We hold only that when the word “cohabitation” was 

used by the parties in their MSA as an event equivalent to death or remarriage, the word 

implies a relationship with the cohabitant akin to a marriage with the attendant rights and 

responsibilities of a married couple. 

 

3

Robert’s brief on appeal suggests that Caroline understood at the time of 

contracting that her living arrangement with Williams met the meaning of cohabitation as 

used in the MSA. E.g., Caroline testified, inconsistently, that she believed “it meant that 

somebody was living with me full time and that they had another — their own residence” 

or that it meant “that they don’t have a residence. . . . [T]hat their residence is my 

residence . . . .” Robert had no understanding, saying only, “I’m going to have to let the 

court decide.” None of this matters. “‘California recognizes the objective theory of 

contracts [citation], under which “[i]t is the objective intent, as evidenced by the words of 

the contract, rather than the subjective intent of one of the parties, that controls 

interpretation” [citation]. The parties’ undisclosed intent or understanding is irrelevant to 

contract interpretation.’” (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 

1518.) 
13

3. The Court Did Not Address Caroline’s Reduced Needs if Any

The court’s ruling, in an extensive 15-page, single spaced minute order, 

meticulously analyzed the evidence presented by the parties, which included the 

testimony of Robert and Caroline, the testimony of Williams, expert testimony 

concerning cell phone records, the testimony of three private investigators, the testimony 

of seven other percipient witnesses, and concluded that Caroline had “cohabited as that 

term is understood in the marital settlement agreement.” The court based its decision on 

evidence of the personal relationship between Caroline and Williams and their living 

arrangements, saying: “It is clear, [Caroline] and Williams had a sexual, if not romantic, 

relationship for more than three years. They slept together in the same bedroom 

overnight; indeed, [Caroline] said they slept together unless they were fighting and then 

Williams slept on the couch. . . . . [¶] It is clear they lived together. Williams referred to 

the residence as ‘his house.’ He helped [Caroline] find a house and he would have been 

on the lease if his credit had been good.” These findings are amply supported by 

substantial evidence.

But the court made no finding regarding Caroline’s decreased need for 

support, if any, resulting from this arrangement, instead ruling that “[i]t is uncertain 

whether they had any financial entanglements. Williams told others that he paid rent, but 

there was no documentary or other evidence to support the assertion which Williams later 

appeared to disavow. [Caroline] states they did not share bank accounts or credit cards. 

And she indicated that, at least for the New York trip to the U.S. Open, that they shared 

the vacation expenses. But this arrangement is very similar to many married couples 

today: each partner keeps their money separate and they share the expenses.” 

We have concluded that the parties’ agreement, reflected in their MSA, to 

elevate the effect of “cohabitation” from a rebuttable presumption to an event equivalent 

to death or remarriage, requires an evaluation of Caroline’s decreased need, if any, and 

whether Caroline and Williams were in a committed relationship akin to a marriage. 
14

Accordingly, the postjudgment order must be reversed for a retrial on that issue, and, if 

such a relationship did not exist, whether Robert’s spousal support obligation should be 

modified under section 4323.

Termination of Jurisdiction over Spousal Support

Caroline argues the court erred in terminating jurisdiction over the spousal 

support issue and should have applied section 4336 so as to retain jurisdiction over 

spousal support in this long term marriage indefinitely. We agree.

The trial court viewed cohabitation as a contingency, the happening of 

which would terminate spousal support under section 4334. Section 4334, subdivision 

(a) states: “If a court orders spousal support for a contingent period of time, the 

obligation of the supporting party terminates on the happening of the contingency.” But 

there has been no finding that the contingency of cohabitation, as we have concluded that 

term was intended by the parties in their MSA, has occurred. Accordingly, section 4334 

has no application. 

Section 4336 provides in relevant part: “(a) Except on written agreement of 

the parties to the contrary or a court order terminating spousal support, the court retains 

jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation 

of the parties where the marriage is of long duration. [¶] (b) For the purpose of retaining 

jurisdiction, there is a presumption affecting the burden of producing evidence that a 

marriage of 10 years or more, from the date of marriage to the date of separation, is a 

marriage of long duration. . . . [¶] (c) Nothing in this section limits the court’s discretion 

to terminate spousal support in later proceedings on a showing of changed 

circumstances.” 

“[S]ection 4336, subdivision (a) is clear and unambiguous in providing two 

mechanisms for divesting the court of its jurisdiction over spousal support issues in cases 

of long-term marriages. The parties may agree to such termination, or the court may 
15

order it. In either case, only specific language of termination will divest the court of its 

fundamental jurisdiction.” (In re Marriage of Ostrander (1997) 53 Cal.App.4th 63, 65-

66.)

Analogizing this case to In re Marriage of Ostrander, supra, 53 

Cal.App.4th 63, Caroline points out the parties’ marriage of nearly 18 years was of long 

duration. As such, she asserts the court should have applied section 4336, subdivision (a) 

to retain jurisdiction over spousal support indefinitely because “neither a court order 

(prior to the trial court’s order from which [this] appeal is taken) nor a written agreement 

purporting to divest the court of continuing jurisdiction over spousal support exists in this 

case. We agree. 

Although it is possible under the MSA, as we have interpreted it, that 

cohabitation in a sufficiently committed relationship would divest the court of 

jurisdiction. But, as we have explained, the court, not having the benefit of our 

interpretation of the MSA, did not make a finding in that regard. Accordingly, the court’s 

order terminating its jurisdiction over spousal support is reversed.

“Cease to be Due” 

Our analysis of the word “cohabitation,” as used in the MSA, also compels 

the conclusion that the phrase “cease to be due” upon a finding of cohabitation, as we 

have defined it, means spousal support would terminate. The parallel use of the words 

“death,” “remarriage,” and “cohabitation,” as having the same consequence compels that 

conclusion. Death and remarriage would terminate spousal support. So must 

cohabitation as we have defined it.
16

Request to Set Aside the Judgment

Caroline contends, for the first time on appeal, that if the court found she 

“was cohabitating when she entered the stipulated judgment” and “did not understand 

material terms of that stipulated judgment,” it “could have set that portion of the 

judgment addressing spousal support aside.” Her failure to raise this argument in the trial 

court forfeits it on appeal. (In re Marriage of Holtemann (2008) 166 Cal.App.4th 1166, 

1174.) Whether Caroline was cohabiting, as that term was used in the MSA under our 

interpretation, is an issue yet to be decided.

Attorney Fees

Caroline’s final argument is that the trial court should have awarded her 

attorney fees and costs under sections 2030 and 2032. She acknowledges there is no 

order regarding fees and suggests “the trial court must have simply overlooked the issue.”

But without an order, there is nothing to review. (Hege v. Worthington, Park & 

Worthington (1962) 209 Cal.App.2d 670, 683-684 [where minute order showed motion to 

dismiss was argued and submitted but “[n]othing further appears in the record concerning 

it, and it is clear that the trial court did not pass upon it . . . there is nothing before the 

court on the subject, upon which we can pass”]; Ikuta v. Ikuta (1950) 97 Cal.App.2d 793, 

795 [“Since no adjudication was made as to these matters [including attorney fees] there 

is nothing before us for review”].) 
17

DISPOSITION

The postjudgment order is reversed and remanded for a new trial. Caroline

shall recover her costs on appeal.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.