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In Re the Marriage of Stanley P. and Mary L. Henzie-Berman. v. Mary L. Henzie-Berman

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada)


December 7, 2010

IN RE THE MARRIAGE OF STANLEY P. AND MARY L. HENZIE-BERMAN. STANLEY P. BERMAN, APPELLANT,
v.
MARY L. HENZIE-BERMAN, RESPONDENT.

The opinion of the court was delivered by: Blease , Acting P. J.

Marriage of Berman and Henzie-Berman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this marriage dissolution proceeding, petitioner Stanley P. Berman (Husband) appeals from an order of the trial court awarding the family residence to respondent Mary L. Henzie-Berman (Wife) as her separate property. Husband contends the order is not supported by substantial evidence and, in any event, he is entitled to reimbursement for his equity interest in the property. We conclude Husband has appealed from a non-appealable order and dismiss.

Facts and Proceedings

We recite the evidence in the light most favorable to the ruling from which this appeal is taken. (People v. Horning (2004) 34 Cal.4th 871, 901.)

Husband and Wife were married on June 27, 1997. It was the third marriage for each. The parties have two children.

At the time of the marriage, Husband owned a residence in an unincorporated area of Nevada County (the property). However, the name of Husband's prior wife (Catherine) was still on the deed to the property.

In order to refinance an existing loan on the property, the parties needed to get Catherine's name off the deed. Husband arranged for Catherine to execute a grant deed whereby she transferred her interest in the property to Husband and Wife. In addition, because Husband's credit was bad, Husband deeded his interest in the property to Wife so she could obtain the new loan in her name alone.

Thereafter, over the ensuing years, the parties refinanced the property twice. Husband never requested that Wife deed the property back to him. At one point during the marriage, Wife urged Husband to put money away for retirement. Husband responded that the property was her retirement.

The parties separated on January 31, 2008. Husband filed a petition for dissolution and, on June 17, 2008, the court entered an order awarding physical custody of the children to Wife and visitation to Husband, and requiring Husband to move from the property.

On November 12, 2008, the parties conducted a trial over the issue of ownership of the property. On November 18, the trial court issued an intended decision, finding that Husband had transferred the property to Wife as her sole and separate property. Husband thereafter requested modification of the decision and to present further testimony.

On June 30, 2009, the trial court entered judgment of dissolution, reserving jurisdiction over all other issues. On July 6, 2009, the court issued an order adopting its intended decision on the issue of ownership of the property and directing that judgment using the appropriate Judicial Council form be filed accordingly. On July 22, 2009, the court issued a judgment on reserved issues, finding the property to be the separate property of Wife.

Husband appeals from the July 22 judgment.

Discussion

We requested supplemental briefing on the issue of whether Husband has appealed from a non-appealable order. Husband submitted a letter brief asserting the July 22 judgment is appealable because it did not reserve any further issues for determination. Wife argues in opposition that other issues remain to be decided by the trial court and, therefore, Husband has appealed from an interlocutory decision that is not appealable.

"'The right to appeal in California is wholly governed by statute and appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature. [Citation.]' [Citation.] The primary statute governing appeals in civil cases is Code of Civil Procedure section 904.1. Subdivision (a) thereof provides for an appeal '[f]rom a judgment except (1) an interlocutory judgment . . . .' . . . [¶] The intent of Code of Civil Procedure section 904.1 '. . . is to codify the final judgment rule, or rule of one final judgment, a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly and that a review of intermediate rulings should await the final disposition of the case. [Citations.]' [Citation.]" (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 687.)

In support of his argument that the decision awarding the property to Wife is appealable, Husband cites County of Kern v. Dillier (1999) 69 Cal.App.4th 1412. According to Husband, the Court of Appeal in Dillier "found that a judgment of paternity was an appealable order despite Respondent's argument that jurisdiction over the issue of child support was reserved . . . ."

Husband fails to explain what a judgment of paternity has to do with a ruling designating certain marital property to be the separate property of one of the litigants. At any rate, Husband's description of the finding in Dillier is from the unpublished portion of that opinion. It is improper to cite to an unpublished opinion or to the unpublished portion of a published opinion. (Cal. Rules of Court, rule 8.1115(a); San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1340.)

Husband points out that, in the ruling from which this appeal is taken, the trial court did not expressly reserve jurisdiction over all other issues. If, by this, Husband seeks to infer the ruling is, in effect, a final judgment, this is not supported by the record. The court entered the judgment from which this appeal is taken on July 21, 2009. What happened thereafter is not altogether clear, because we do not have a complete record of the proceedings. On August 25, 2009, counsel for Wife appeared before the court and was directed to contact Dr. Roeder, an expert in the field of family psychology, and have Dr. Roeder's report sent to the court. On August 27, the court entered a minute order setting all remaining issues for hearing. On September 10 and again on September 24, 2009, the parties appeared in court regarding child support contempt issues. Thereafter, the parties continued to litigate visitation issues. On December 11, 2009, the court entered an order to show cause regarding visitation.

"In 'determining whether a particular decree is essentially interlocutory and non-appealable, or whether it is final and appealable . . . [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.'" (Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101-1102.)

Despite the fact the July 22 ruling does not contain a checkmark in the box indicating that jurisdiction is reserved on all other issues, it cannot be said on the record before us that the court did not in fact reserve jurisdiction over other issues. On the contrary, the parties continued to litigate other matters before the court. Therefore, the July 22 judgment does not appear to be a final judgment.

One exception to the final judgment rule is the so-called collateral order doctrine. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.) "Where the trial court's ruling on a collateral issue 'is substantially the same as a final judgment in an independent proceeding' [citation], in that it leaves the court no further action to take on 'a matter which . . . is severable from the general subject of the litigation' [citation], an appeal will lie from that collateral order even though other matters in the case remain to be determined." (Ibid.) "In determining whether an order is collateral, 'the test is whether an order is "important and essential to the correct determination of the main issue." If the order is "a necessary step to that end," it is not collateral. [Citations.]' [Citation.]" (Ibid.) However, "[i]t is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him." (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119; see also In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)

Husband does not contend the July 22, 2009, ruling concerns a collateral matter. But even if he did, the determination awarding the property to wife does not direct the payment of money by Husband or require the performance of an act by or against him. (See Sjoberg v. Hastorf, supra, 33 Cal.2d at p. 119.)

Code of Civil Procedure section 904.1, subdivision (a)(10), permits an appeal from any order made appealable by the Family Code. Family Code section 2025 reads: "Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. . . ." Issues appropriate for such certification include the determination of whether certain property is separate or community. (In re Marriage of Griffin, supra, 15 Cal.App.4th at p. 688.)

Assuming the trial court ordered the issue of ownership of the property bifurcated and tried separately, Husband thereafter failed to avail himself of the certification procedure provided under the Family Code. Compliance with that procedure is necessary to invoke appellate jurisdiction over an interlocutory order of the Family Court. (See In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1434.)

The judgment from which this appeal is taken is not a final judgment and is not an appealable interlocutory judgment. Although Husband could presumably have sought certification of the judgment under Family Code section 2025, he failed to do so. Therefore, we are without jurisdiction to consider this matter, and Husband's purported appeal must be dismissed.

In her supplemental brief, Wife indicates Husband has recorded a notice of pending action against the property, thereby preventing her from selling or refinancing the property. She requests that we order Husband to remove the notice. However, this is a matter for the trial court to resolve in the first instance.

Disposition

The appeal is dismissed. The issues raised herein can be resolved, if necessary, following entry of final judgment. Wife is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

HULL ,J.

We concur:

RAYE ,J.

20101207

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