NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

INTRODUCTION

Sophia Cohen appeals from the order of the trial court denying her post-judgment order to show cause (OSC) seeking division of an asset that she alleges was not previously adjudicated in the dissolution of her marriage to Ronald Braverman. (Fam. Code, § 2556.)1 Cohen contends that Braverman fraudulently concealed the existence of a community asset, Health Devices Corporation, doing business as Doc Johnson (the corporation). We hold the corporation's character and value were extensively litigated during the dissolution and awarded in the judgment, and so we affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

1. The dissolution in 2002

Cohen and Braverman were married on November 27, 1989. Less than 10 years later, in 1998, they separated and Cohen petitioned for dissolution. In her petition, Cohen listed the corporation as a community property asset while Braverman listed it as his separate property, thus putting ownership of the asset in dispute.

During the dissolution, the parties litigated the extent of the community interest in the corporation, its value, and the date of valuation. In response to 119 requests for production, Braverman produced corporate documents, including tax returns, financial records, articles of incorporation, and stock certificates. In response to 369 special interrogatories, Braverman asserted that he formed the corporation in 1976, 13 years before the marriage, and he worked there before, during, and after the marriage. Braverman was and remains the sole shareholder. According to Cohen, the corporation is one of the world's largest pornography corporations. Braverman revealed during discovery that the corporation owns other companies and product lines, and he identified suppliers and customers. Cohen's forensic accountants valued asset as of three different dates.

After mediation, the parties entered into a comprehensive marital settlement agreement (MSA). The MSA states: "The property subject to division and/or confirmation herein is claimed by one or other to be the community or quasi-community property of the parties, or the separate property of a party hereto, which claims are, in some instances, in dispute." (Italics added.) "Concerning the nature, extent and value of community property (assets and liabilities), and the parties' interest therein," the MSA recites, "the parties state that each has his and her own knowledge and opinion concerning said matters, and each has relied upon his or her own knowledge and evaluations of such matters, and that each has sought and obtained separate counseling from other persons that each selected concerning said matters." (Italics added.) Finally, the MSA provides, the "parties also acknowledge that by entering into a negotiated settlement of all financial issues between them, each knowingly waives his or her right to a full evidentiary hearing on the merits with respect to those issues."

The MSA awarded Cohen all of the property on Schedule A and Braverman all of the property on Schedule B. Schedule B included the corporation and so that asset was awarded to Braverman.2

The trial court entered judgment on October 31, 2002, that incorporated the MSA. The judgment also provided, among other things, that Cohen would receive a nonmodifiable spousal support of $15,000 per month for five years from 2002 through August 2007; a lump sum payment of $274,000 as retroactive temporary spousal support; a lump sum of $390,000 as spousal support; an equalization payment of $400,000; and a half interest in a residence with $2.8 million in equity and a $321,000 mortgage. The judgment also relieved Cohen of the obligation to reimburse Braverman for tax and interest payments of approximately $1,145,300; to reimburse the community for money spent on separate property; and to pay attorney fees.

2. Cohen's OSC in 2008

Six years after entry of the judgment of dissolution, Cohen filed the instant OSC seeking, among other things, (1) a determination that the corporation and its assets are community property; and (2) an order awarding Cohen 100 percent interest in the corporation and its assets as her separate property. Not included in the OSC was a request to set aside the judgment of dissolution.

Cohen's OSC centered on her contention that Braverman intentionally misrepresented that he acquired the corporation before the marriage. She based this argument on Braverman's 1996 plea agreement in United States v. Ronald Braverman (N.D. Ohio, Eastern Div.) and the 1996 stipulated judgment in his civil action entitled Health Devices Corporation d/b/a Doc Johnson Enterprises and Ronald Braverman v. United States (C.D. Cal. CV 93-3421-RAP (Sx)). These documents, Cohen contended, demonstrate that the United States government seized the interest in the corporation held by a Reuben Sturman for nonpayment of $28 million in taxes, and that Braverman acquired Sturman's interest in the corporation from the United States. In the OSC, Cohen argued that only after the judgment of dissolution did she discover that Braverman had obtained Sturman's interest in the corporation during the marriage. She argued that section 2556 gave the trial court continuing jurisdiction to award community estate assets that were previously omitted or unadjudicated. She also argued that Braverman had breached his fiduciary duty to her by failing to disclose the community property asset.

In his opposition, Braverman argued that the corporation was not an omitted asset where it was named in the petition for dissolution, was the subject of extensive discovery and forensic analysis, and where the MSA assigned the property to Braverman.

Braverman also noted that although Cohen claimed to have learned about the federal litigation in May 2005, in fact she knew about his plea agreement and the stipulated judgment years before she filed the instant OSC. As evidence, he pointed to Cohen's November 2005 malpractice action against her former divorce attorneys, premised in part on her claim that counsel failed to discover that the corporation was allegedly acquired during the marriage. In that malpractice suit, Cohen declared that she told counsel at the beginning of the dissolution proceeding that Braverman had acquired the company during the marriage, and her attorney was aware of the federal litigation in which ownership of the corporation was an issue. Also, according to her responses to interrogatories in the malpractice suit, Cohen stated she was aware of the plea agreement and stipulated judgment in 1998. Cohen testified she knew that Braverman was indicted and went to jail in 1994 for tax evasion for trying to give Sturman money under false pretenses.

At the hearing on Cohen's OSC, the trial court explained it would assume Cohen's following contentions were true: (1) Braverman said nothing about the federal criminal and civil actions; (2) Cohen was aware of the federal litigation but not about Sturman's involvement and interests in the corporation; and (3) Braverman knew there was a community interest in the corporation and that he purchased a community interest in 1996 with community funds, as part of his settlement with the IRS. Even assuming all of this as Cohen's best factual case, the court ruled that the corporation was not unadjudicated (§ 2556). The court explained that the corporation was specifically and clearly adjudicated; its community or separate nature was disputed during the dissolution; the corporation was mentioned in the petition for dissolution, the response, and the stipulated judgment; and in that judgment, Cohen awarded Braverman the entire asset including whatever he acquired from Mr. Sturman. Even if there were extrinsic fraud where Braverman lied about the asset, the court noted that Cohen did not raise fraud in her OSC or request to set aside the judgment under section 2121. The court limited its ruling to the terms of Cohen's OSC and denied it. The court also denied Braverman's motion for $45,000 in attorney fees. Cohen's timely appeal and Braverman's cross-appeal followed.

CONTENTIONS

Cohen contends that the corporation was an unadjudicated asset (§ 2556), and that discovery is necessary to determine whether it was unadjudicated.

Braverman contends the trial court erred in denying his motion for attorney fees.

DISCUSSION

1. Cohen's appeal

Section 2556 reads: "In a proceeding for dissolution of marriage . . . the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a post judgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability." (Italics added.)

Citing the rule that the mere mention of an asset is not an adjudication of property rights (Brunson v. Brunson (1985) 168 Cal.App.3d 786, 788 & Miller v. Miller (1981) 117 Cal.App.3d 366, 370), Cohen contends that the trial court erred in ruling that the corporation was adjudicated merely because the asset was mentioned in the stipulated judgment. She argues that the court's "finding that [the corporation] is adjudicated simply because it was mentioned in a judgment would result in rendering the words `or not adjudicated' in the [section 2556] mere surplusage."

Yet, the corporation was not merely mentioned, it was adjudicated and hence not omitted. Even viewing the record in a light most favorable to Cohen, i.e., contrary to the normal rules of appellate review of a factual finding (Estate of Bristol (1943) 23 Cal.2d 221, 223), it is manifest that the corporation was extensively litigated. It was named in the pleadings. Cohen contended the corporation was community property while Braverman asserted it was his separate property, and so the nature of the parties' interests in the asset was directly at issue. Beyond mere mention in the pleadings, the corporation was the subject of extensive discovery, investigation, and analysis, and was valued as of three different dates by Cohen's forensic accountant. As evidenced by Cohen's deposition testimony in her malpractice action, she told her attorney "at the beginning of the dissolution" that "Braverman had acquired [the company] during [the] marriage." (Italics added.) The stipulated judgment then specified that the parties disputed the nature of some assets but had sought the advice of counsel. Therefore, contrary to Cohen's claims, the corporation was not merely "mentioned" in the MSA, its separate/community property character and its value were litigated. Where the community property nature of the corporation was fully and extensively litigated, it was adjudicated and clearly not omitted.3

Furthermore, the judgment awarded the corporation in its entirety to Braverman, necessarily including whatever interest he might have acquired from Mr. Sturman in 1996 before Cohen filed the dissolution petition. This is so because Cohen testified she knew that the property was a community asset and knew about the federal litigation by 1998, when she commenced the dissolution. (See In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1517 [reviewing terms of stipulated judgment for dissolution to determine it did not fail to resolve any portion of the parties' interest in husband's pension benefit resulting in a partially omitted asset to be divided under § 2556].) Where the stipulated judgment awarded the corporation as Braverman's separate property, the asset was neither omitted nor unadjudicated. (See Huddleson v. Huddleson (1986) 187 Cal.App.3d 1564, 1569 [where court not called on to award asset and did not award it as community or separate it was missed or omitted asset].)4

Nor is this case like Henn v. Henn (1980) 26 Cal.3d 323, relied on by Cohen. There, the former husband's military pension was mentioned in "[n]either the pleadings nor the judgment . . . ." (Id. at p. 327, superceded by § 2556 as stated in In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 1121.) The husband admitted that, at the time of the interlocutory decree, his pension was part community property. (Ibid.) The Supreme Court in Henn held where "it is conceded that the issue of [husband's] military pension was not before the court which issued the final decree, the judgment of that court cannot be said to have extinguished [wife's] putative interest in that asset." (Id. at p. 330.) Henn further held that the doctrine of collateral estoppel did not bar the wife's post judgment OSC seeking to divide the pension as community property because the issue had not been litigated and determined in the dissolution, nor was it within the scope of the prior action, and the husband "failed to demonstrate that [the wife was] relying upon some specific factual or legal contention which would have been relevant to the adjudication of the parties' rights to the property distributed in the 1971 decree if it had been raised." (Id. at p. 331, fn. omitted.)

The facts and principles of Henn are inapposite. Unlike Henn where "[n]either the pleadings nor the judgment made mention of the fully matured federal military retirement pension that [husband] was receiving at the time of the interlocutory decree" (Henn v. Henn, supra, 26 Cal.3d at p. 327), the pleadings here put the corporation at issue; its nature was fully litigated, and it was awarded to Braverman in the judgment.

Cohen quotes from Henn v. Henn, supra, 26 Cal.3d 323, that "Under California law, a spouse's entitlement to a share of the community property arises at the time that the property is acquired. [Citations.] That interest is not altered except by judicial decree or an agreement between the parties. Hence `under settled principles of California community property law, "property which is not mentioned in the pleadings as community property is left unadjudicated by decree of divorce, and is subject to future litigation, the parties being tenants in common meanwhile."' [Citations.]" (Id. at p. 330, italics added.) Cohen's argument appears to be that property is not adjudicated unless it is mentioned in the pleadings as community property. Her implication appears to be that where the MSA listed the corporation as Braverman's separate property, it could not have been adjudicated. This argument is both illogical and unavailing. Cohen listed the corporation as community property in her petition. Hence, Cohen's understanding of the rule does not apply here. Otherwise, it is clear from the record that both the corporation's status as community or separate property and its value were disputed and fully litigated in the dissolution.

Finally, Cohen contends that the MSA was entered into in reliance on Braverman's information now known to her to be fraudulent because he concealed a community asset. She argues that pursuant to section 2122, the judgment must be set aside. She also argues that in the interests of justice and equity the judgment must be re-opened to correct a fraud on the court. However, even if Braverman misrepresented the nature of the corporation during dissolution, such fact would not render the corporation an omitted asset where the parties, represented by counsel, engaged in extensive litigation over the nature and value of the corporation and the trial court awarded it to Braverman. More important, the record shows that Cohen did not raise these grounds or theories to the trial court on her OSC. To the contrary, in support of her OSC, Cohen specified that "Family Code §§ 2121 and 2122 do not apply to this matter because Petitioner is not seeking to set aside the judgment." (Italics added.) Cohen also stated at oral argument on her OSC that, "if you talk about this in terms of reopening a judgment, that's not what we're doing here." For that reason, the trial court specifically limited the OSC to its terms when issuing its ruling. It is well settled that "`"[a] party is not permitted to change his position and adopt a new and different theory on appeal. . . ."' [Citation.]" (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 414.) "`To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' [Citations.]" (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) "`[T]he opposing party should not be required to defend for the first time on appeal against a new theory that "contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial."' [Citation.]" (Id. at p. 502.)

Finally, Cohen's contention that discovery was necessary to determine whether the corporation was indeed unadjudicated is unavailing. "[T]he right to discovery in civil proceedings is not absolute. `[Former Cal. Civ. Proc. Code] section 2019, subdivision (b), provides generally that any discovery method, including depositions, may be restricted in the frequency or extent of its use if the trial court determines either that "(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive" or "(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation."' [Citation.]" (In re Marriage of Hixson, supra, 111 Cal.App.4th at p. 1122; see Code Civ. Proc., § 2019.030, subd. (a)(1)-(2).) In ruling on Cohen's OSC, the trial court assumed that Braverman concealed the existence of a community property interest in the corporation. Even with that assumption, the court properly ruled that the corporation was fully adjudicated and finally determined on the merits. The record before the trial court and on appeal contains exhaustive evidence of the dissolution discovery. In any event, to the degree that the division of assets occurred in mediation, we could not consider what occurred during mediation. (Evid. Code, § 1119; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 580.) Therefore, discovery would be completely unnecessary. (In re Marriage of Hixson, supra, at pp. 1123-1124.)

2. Braverman's cross appeal

Braverman contends he is entitled to $45,000 in attorney fees in defending the OSC. The MSA provides in paragraph XII.U, "If either party is required to employ counsel and/or institute court action to enforce his/her rights under this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorneys' fees and costs." (Italics added.) The trial court denied Braverman's request stating, "This is not the defense of the judgment, or an action to enforce the terms of the judgment. It's a separate issue." We agree.

The premise of Cohen's OSC is pursuant to section 2556 that the corporation was omitted from the stipulated judgment. Thus, she was not "enforc[ing] his/her rights under this Agreement" so much as rights that never made it into the agreement. For this reason, Civil Code section 1717, Code of Civil Procedure sections 1033.5, subdivision (a)(10)(A), and 685.040 are irrelevant as they are premised on a contract or judgment provision that allows for attorney fees.

DISPOSITION

The order is affirmed. Parties are to bear their own costs on appeal.

We concur:

CROSKEY, ACTING P. J.

KITCHING, J.