IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 21, 2010
IN RE THE MARRIAGE OF ELENA NOSKOVA AND ALEXANDER PEVTSOV.
ELENA NOSKOVA, APPELLANT,
ALEXANDER PEVTSOV, RESPONDENT.
(Santa Clara County Super. Ct. No. FL-103692)
The opinion of the court was delivered by: Rushing, P.J.
Marriage of Noskova and Pevtsov
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Elena Noskova appeals from a revised statement of decision entered by the trial court resolving certain property issues arising out of the parties' four year marriage. Specifically, Elena contends that the trial court erred in requiring her to establish that respondent, Alexander Pevtsov, obtained an unfair advantage over her prior to the court's application of the presumption of undue influence to him. (Fam. Code, § 721.) Finding that the appeal has been taken from a non-appealable order, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and respondent, both Russian by birth, were introduced and married in Russia in 1997. At the time, Elena had applied for and received permission to leave Russia and had been granted asylum in the United States. She left Russia days after their marriage. Alexander continued to live in Russia for some time winding down his convenience shop business. Although business had been going downhill since the time of Perestroyka, respondent had amassed savings in the amount of $361,000 which he progressively transferred to the United States before moving here in 1999. Alexander never directly told Elena about the extent of his savings, but he believed she knew about his money from the woman who had introduced them.
In 1998, after Elena moved to the United States, the couple had a child, but Elena continued to live with her parents until Alexander moved here permanently in 1999. Upon arrival, Alexander purchased a home in Los Gatos for $351,000, using $103,000 of his savings as a down payment. Even though the couple was married, Alexander took title in his name alone, was the sole borrower and Elena executed a quitclaim deed in his favor. The parties dispute how well Elena understood the English language, but the transaction was completed by a Russian speaking real estate agent and a Russian mortgage broker who both testified that Elena understood that nature of transaction and voluntarily signed the transfer deed. Alexander testified that they both understood that by signing the quitclaim deed, the house purchased with his money would be in his name alone. Although he denied telling her that she "needed to sign [the] paper," he testified that he told her, "[O]f course, my house will be on my name. I told her my house will be on buying [sic] my money and will be on my name only." He claimed that she agreed, "Okay. Of course. Because it's your money." On the other hand, Elena testified that the separate nature of the house was "never discussed." She claimed that she was told she needed to be present at the signing, "because it's required because I was his wife." However, she had no understanding of what she was signing, but was given papers and told that "this is the paper that I have to sign." Elena testified that she had so little understanding of the process, she didn't even know what a mortgage was at the time. She denied ever having the opportunity to separately speak with the realtor, broker, loan or escrow agents.
During the marriage, Elena was the only spouse to work. Alexander was never employed in the United States during that time. The couple maintained separate bank accounts but Elena gave Alexander money monthly toward the mortgage payments. The couple continued to live in the home until Elena filed for dissolution of the marriage and the couple separated in 2001. Shortly after the separation, Elena signed a document which stated, "all money earned by A.K. Pevtsov in Russia is not the subject to division (or apportionment)!!! [¶] . . . [¶] A. Pevtsov has earned money for the house prior to the marriage."
The trial court bifurcated the issues of custody and property division. The trial court heard the bifurcated trial on the property issues in October of 2007 and March of 2008. Three issues were before the court: 1) The nature of the $103,000 down payment for the house, and whether those funds were traceable as Alexander's separate property; 2) the characterization of the remaining cash at the date of separation and 3) the validity of the quitclaim deed executed by Elena in 1999.
After a three day trial, the trial court issued its proposed statement of decision. The court found in favor of Alexander on the first two issues, holding that Alexander had sufficiently established that both sets of funds were his separate property. The court then went on to hold that Alexander had not rebutted the "presumption of undue influence with respect to the Inter-spousal Transfer Deed executed by [Elena] at the time of the purchase of the family residence." The court found, based on the evidence at trial, that Elena had not understood the legal effect or implications of the inter-spousal transfer deed.
Alexander timely objected to this last finding, arguing that because the court had found that the $103,000 down payment was Alexander's separate property, the presumption of undue influence under Family Code section 721was never triggered because there was no evidence of unfair advantage. After a further hearing, the trial court reversed itself and issued a revised statement of decision. The court held, "In its initial Statement of Decision this Court erroneously found that respondent Alexander Pevtsov 'has not met his burden of rebutting the presumption of undue influence with respect to the inter-spousal Transfer Deed . . . at the time of the purchase of the family residence.' The court concludes that this finding is erroneous, because no presumption of undue influence exists in this case. The court, in In re Marriage of Burkle (2006) 139 Cal.App.4th 712 [(Burkle)] held that 'a presumption of undue influence under [Family Code], §721, does not arise in an inter-spousal transaction unless one's spouse obtains an unfair advantage or obtains property for which no or clearly inadequate consideration has been given.' In the instant case, in light of this Court's conclusion that the entire down payment was Respondent's sole and separate property, Petition has no interest in the property in question at the time of purchase. Accordingly, Respondent did not obtain an advantage, unfair or otherwise over petitioner in connection with this transaction . . . . [T]he court concludes that Respondent did not obtain an unfair advantage over Petitioner and, therefore, the inter-spousal transfer deed was valid. Therefore, the Court finds and holds that the residence located at . . . is to be the sole and separate property of the respondent without prejudice to a Moore/Marsden[*fn1 ] claim by the Petitioner according to proof." After the trial court overruled Elena's objections to the revised statement of decision, she filed this notice of appeal.
The Appeal is Taken from a Non-appealable Order*fn2
The notice of appeal, by its own terms is taken from a decision announced verbally in court. Elena admits on the face of her notice of appeal that "no judgment has been prepared or filed yet," nor has judgment has been filed since the inception of this appeal. In briefing, appellant raises issues decided in the revised statement of decision filed in this matter, which the trial court signed and filed as an order.
The right to appeal is wholly statutory. Code of Civil Procedure section 904.1 sets forth the types of judgments and orders which are appealable. A statement of decision is not mentioned in the code section and is generally not an appealable order. (Kinney v. Vaccari (1980) 27 Cal.3d 348, 357; In re Marriage of Biddle (1997) 52 Cal.App.4th 396, 398, fn. 1; Industrial Indemnity Co. v. City and County of San Francisco (1990) 218 Cal.App.3d 999, 1003, fn. 3.) Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits. (Estate of Lock (1981) 122 Cal.App.3d 892, 896; cf. Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 896, fn. 1.)
Although the statement of decision here resolved the three major property questions at issue; it also reserved the Moore/Marsden issue raised by Elena at trial for further proof at some unknown time in the future. Therefore, by its own terms, the statement of decision is not a final appealable order, and the appeal therefrom must be dismissed.*fn3
The appeal is dismissed as taken from a non-appealable order.
WE CONCUR: PREMO, J. ELIA, J.