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In Re the Marriage of Paula Caracristi and Thomas J. Radtke. v. Thomas J. Radtke

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


January 4, 2011

IN RE THE MARRIAGE OF PAULA CARACRISTI AND THOMAS J. RADTKE.
PAULA CARACRISTI, RESPONDENT,
v.
THOMAS J. RADTKE, APPELLANT.

(Super. Ct. No. 04FL07007)

The opinion of the court was delivered by: Robie ,j.

Marriage of Caracristi and Radtke CA

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On appeal in this marital dissolution action, Thomas J. Radtke (husband) seeks to challenge 14 different orders made in the action between July 2007 and July 2009. In some circumstances, intermediate orders can be reviewed on appeal from a final judgment.*fn1 Here, however, husband did not appeal from the final judgment (which, in any event, was a stipulated judgment and therefore not appealable). Instead, he appealed directly from the intermediate orders, long before the final judgment was entered.*fn2

Because most of the intermediate orders husband seeks to challenge predate his notice of appeal by more than a year, his appeal comes too late as to those orders (even assuming they were appealable in the first place). To the extent husband's notice of appeal was timely as to a few of the intermediate orders he seeks to challenge, we conclude most of those orders are not appealable. Thus, the bulk of husband's appeal is not properly before us, and we will therefore dismiss it -- with a single exception: his appeal from an order denying a motion for temporary spousal support and pendente lite attorney fees. That order is appealable, and husband's appeal of that order was timely. As we will explain, however, husband has failed to carry his burden of showing that the trial court's ruling was an abuse of discretion. Accordingly, to the extent husband's appeal is not dismissed, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From the trial court case number, we discern that Paula Caracristi (wife) commenced this dissolution action some time in 2004. One of the issues in the case involved rental properties, because in early 2005, the court entered an order authorizing husband to operate the properties, periodically accounting to wife.

In May 2007, wife granted her attorney a family law attorney's real property lien (see Fam. Code, Ãé§ 2033) on an apartment building on S Street in Sacramento (the S Street property).*fn3 Husband filed a motion objecting to the recording of that lien on the ground that the S Street property was not community property, but instead was his separate property. The trial court denied husband's motion and allowed the recording of the lien, but ordered that the issue of the characterization of the property be set for a long-cause (evidentiary) hearing. The court provided that the lien could be vacated depending on the result of that hearing. (This is the first of the intermediate orders husband seeks to challenge on appeal.)

In August 2007, the trial court granted wife's ex parte request to continue the settlement conference and trial and bifurcated the issue of the characterization of the S Street property. (This is the second of the intermediate orders husband seeks to challenge on appeal.)

In October 2007, wife filed a motion for ex parte relief related to husband making an unauthorized recording of his deposition. The trial court ordered husband not to make his own recording of the deposition and deferred until trial wife's request for $1,710 in sanctions against husband under Family Code section 271. (This is the third of the intermediate orders husband seeks to challenge on appeal.)

Earlier that month, wife had filed a motion to compel further responses to discovery. At the hearing in November 2007, no one appeared on husband's behalf. The trial court granted the motion and ordered husband to pay $1,360 in attorney fees. (This is the fourth of the intermediate orders husband seeks to challenge on appeal.)

On December 6, 2007, husband filed an ex parte motion to continue the long-cause hearing, then scheduled for December 14, because he had retained new counsel in November. The trial court denied that motion. (This is the fifth of the intermediate orders husband seeks to challenge on appeal.)

The long-cause hearing apparently went forward as scheduled, and the trial court apparently determined that the S Street property was community property upon granting wife's motion for judgment under Code of Civil Procedure section 631.8.

In March 2008, wife filed a motion for discovery sanctions based on husband's failure to respond to the discovery that was the subject of the order compelling further responses in November 2007. Husband did not appear at the hearing in April 2008, and the court granted the requested sanctions, including $610 in attorney fees. (This is the sixth of the intermediate orders husband seeks to challenge on appeal.)

Also in April 2008, husband apparently filed a second new trial motion relating to the December 2007, long-cause hearing. At a hearing in May 2008, the trial court ruled that husband's motion was premature because a new trial motion on a bifurcated issue can be brought only "after all the issues are tried." (Cal. Rules of Court, rule 3.1591(c).) (This is the seventh of the intermediate orders husband seeks to challenge on appeal.)

On April 21, 2008, wife's attorney recorded another family law attorney's real property lien on the S Street property. Husband apparently filed a motion objecting to the lien, and wife's attorney agreed to withdraw the lien because of a "procedural error." Wife's attorney recorded a withdrawal/release of the lien, but husband did not drop his motion. At the hearing in June 2008, the court found the motion unnecessary and sanctioned husband $350. (This is the eighth of the intermediate orders husband seeks to challenge on appeal.)

Meanwhile, in May 2008, husband filed a motion seeking relief from the monetary sanctions the court had ordered in November 2007, claiming wife's attorney had told him the hearing on the motion to compel would be dropped. At the hearing on husband's motion in June 2008, the court ordered husband's former attorney to provide a declaration to husband explaining why the attorney did not appear at the hearing on the motion to compel. The court then continued the matter to August. (This is the ninth of the intermediate orders husband seeks to challenge on appeal.)

At the continued hearing in August 2008, the trial court found that husband's motion for relief was made too late and also denied the motion on its merits. The court sanctioned husband $900. (This is the 10th of the intermediate orders husband seeks to challenge on appeal.)

Meanwhile, in July 2008, wife apparently filed a motion for an accounting and to sell the S Street property (among other things). At the hearing on September 3, 2008, husband's attorney provided documentation to wife's attorney "purporting to be an accounting." The trial court denied the request to sell the property, reserved on attorney fees and the appointment of a property manager, and continued the matter to September 29.

Following the September 3 hearing, wife's attorney requested further supporting documentation from husband's attorney. As of the continued hearing, which ultimately was held on October 22, husband had not provided that documentation so the court ordered him to do so. The court also sanctioned husband $1,000. (This is the 11th of the intermediate orders husband seeks to challenge on appeal.)

In December 2008, wife obtained a writ of execution for the principal amount of $3,870, which apparently represented some of the sanctions husband had been ordered to pay.

On December 23, 2008, a judgment of dissolution (status only) was entered.

In January 2009, husband signed a stipulation agreeing that the court had found the S Street property was community property.

In February 2009, husband filed an ex parte motion seeking to set aside all of the previous sanction orders, orders obtained ex parte, and the January 2009 stipulation, and to remove the levies placed on various of his bank accounts pursuant to the writ of execution. The trial court ordered the matter set for a regularly noticed hearing. That hearing was held on April 15, 2009, at which time the court denied all aspects of the set aside motion and denied husband's claim of exemption "to the extent the amount garnished is $4,000.00." (This is the 12th of the intermediate orders husband seeks to challenge on appeal.)

Around this same time, husband filed a motion for spousal support and attorney fees under Family Code section 2030, among other things. Husband failed to file an income and expense declaration with the motion. At the hearing on May 13, 2009, the trial court denied husband's request for support and fees because of that failure. The court also denied the remaining aspects of husband's motion, some of which the court noted had been "raised and ruled upon previously," and sanctioned husband $750. (This is the 13th of the intermediate orders husband seeks to challenge on appeal.)

The day before the May 13 hearing, husband apparently filed a motion to release another family law attorney's real property lien wife's attorney had recorded based on his assertion that he was not properly served with the lien. At the hearing on husband's motion on May 27, the trial court ordered the parties to provide additional documentation regarding the alleged service (or lack thereof) and continued the matter to July 1.

On June 15, 2009, husband filed the notice of appeal that commenced the proceeding presently before us. In that notice, he indicated he was appealing from the order entered April 15, 2009, and he also referred to an "attached list of dates." In the attached document, entitled "LIST OF HEARINGS/DECISIONS TO BE APPEALED," he listed no less than 20 different hearing dates between May 9, 2007 and May 27, 2009. The implication was that he was appealing from the April 15, 2009, order and the orders from all of the hearings listed in the attachment.

At the hearing on July 1, 2009, the court ordered that the issue regarding service of the lien would be addressed at trial of the remaining issues in the case. (This is the 14th of the intermediate orders husband seeks to challenge on appeal.)

In January 2010, wife relieved her attorney, and two days later she entered into an agreement with husband "to bring complete, total and final closure to th[e] case." As part of that agreement, wife agreed that the S Street property "is, and always has been, husbands [sic] sole and separate property." Following a further stipulation they entered into in February 2010, a judgment on reserved issues based on the parties' agreements was entered on March 1, 2010.

DISCUSSION

I

Appealability

As we have noted, husband's notice of appeal appears to indicate he is appealing not only from the April 15, 2009, order specifically identified therein, but also from all of the orders from the 20 different hearings listed in the attachment to his notice of appeal. In his opening brief, however, husband identifies only 14 orders that he seeks to challenge on appeal. The question, therefore, is whether these orders are reviewable on appeal.

In his statement of appealability in his opening brief, husband asserts there is a "judgment finally disposing all issues" and his "[n]notice of appeal was timely filed June 15th, 2009." What he fails to point out, however, is that the judgment on reserved issues that finally disposed of all issues in the case was entered on March 1, 2010 -- more than eight months after he filed his notice of appeal.

It is true a "notice of appeal must be liberally construed." (Cal. Rules of Court, rule 8.100(a)(2).) That rule of liberality is not so flexible, however, as to permit us to construe husband's June 2009 notice of appeal from various intermediate orders as an appeal from a final judgment entered over eight months later.

Under some circumstances, a premature notice of appeal may be deemed timely as to a later-entered judgment, but that is permissible only where the notice of appeal is filed "after judgment is rendered but before it is entered" or "after the superior court has announced its intended ruling, but before it has rendered judgment." (Cal. Rules of Court, rule 8.104(e)(1) & (2).) That is not the case here. The judgment on reserved issues did not result from any of the intermediate rulings husband seeks to challenge on appeal. Indeed, the judgment on reserved issues did not result from a court ruling at all; it resulted from a stipulation between the parties, pursuant to which the parties made a "final, binding, unchangeable agreement . . . to bring complete, total and final closure to this case." Thus, even if we could otherwise reasonably construe husband's notice of appeal as prematurely seeking to appeal from the judgment on reserved issues (which we cannot), it would make no difference because "judgments entered pursuant to stipulations are generally not appealable." (John Siebel Associates v. Keele (1986) 188 Cal.App.3d 560, 564, fn. 3; see also Atchison, T. & S. F. Ry. Co. v. Hildebrand (1965) 238 Cal.App.2d 859, 863 ["no appeal will lie from a consent judgment"].)

"[U]nder the 'one final judgment' rule, appeal lies only from final judgments in actions or proceedings, or from orders after judgment that affect the judgment or its enforcement; it does not lie from interlocutory judgments or orders unless specifically made appealable by statute." (Lester v. Lennane (2000) 84 Cal.App.4th 536, 560.) Because we cannot construe husband's notice of appeal as having been taken from the much-later judgment on reserved issues -- and because such an appeal would be fruitless in any event because it was a stipulated judgment -- husband's appeal is properly before us only if: (1) one or more of the 14 intermediate orders he seeks to challenge on appeal is specifically made appealable by statute; (2) husband's notice of appeal refers, or can reasonably be deemed to refer, to one or more of those orders; and (3) husband's notice of appeal was timely filed as to one or more of those orders.

We begin with the latter point first, because -- as will be seen -- the timeliness issue disposes of most of the orders husband seeks to challenge on appeal. Generally, the outside date for appealing from an order is 180 days after its entry. (See Cal. Rules of Court, rule 8.104(a)(3).) The first 11 orders husband seeks to challenge on appeal are dated between July 16, 2007 and October 22, 2008. All of these orders fall well outside of the 180-day period preceding the filing of his notice of appeal on June 15, 2009. Accordingly, even assuming any of these orders was specifically made appealable by statute, husband's attempt to appeal from them came too late.

That leaves us with the remaining three intermediate orders husband seeks to challenge on appeal. We will discuss each of those orders in turn.

April 15, 2009, Minute Order

The first is the minute order dated April 15, 2009, which husband specifically identified in his notice of appeal. In that order, the court "denie[d husband's] motion to set aside the previous sanction orders" and "[t]he motion to set aside the stipulation reached at Jan. 13, 2009 settlement conference." The court also denied a "motion to . . . vacate previous ex parte orders," denied a "claim of exemption . . . to [the] extent the amount garnished is $4,000.00," denied husband's request for a statement of decision, and deferred wife's request for attorney fees to trial.

From reviewing the portion of husband's opening brief addressing this order, it appears husband seeks to challenge not only the April 15, 2009, minute order, but also the earlier order of February 23, 2009, in which the court refused to grant husband relief on an ex parte basis. Because husband's notice of appeal did not encompass the February 23, 2009 order, however, we cannot consider this aspect of husband's argument on appeal. As for the April 15, 2009, minute order, husband points to no statute that permits an appeal from an intermediate order of this sort nor are we aware of any such statute or other provision of law.

May 13, 2009, Minute Order

We turn to the second of the three remaining intermediate orders husband seeks to challenge on appeal. That order is the minute order dated May 13, 2009, in which the court denied husband's motion for spousal support, attorney fees, and for other relief. In ruling, the court noted that many of the issues husband raised had "been raised and ruled upon previously," and to the extent husband was seeking reconsideration of those previous rulings, his motion for reconsideration was denied. The court also denied a request for a property restraint but granted wife's request for $750 in sanctions under Family Code section 271.

As to this order, we note that husband listed the May 13, 2009, hearing in the attachment to his notice of appeal, although he described the hearing as relating only to a "[m]otion to set aside Stipulation." We will nonetheless construe the notice of appeal liberally as appealing from all aspects of the order entered at that hearing. That leaves the question of whether this particular intermediate order is specifically made appealable by statute or other provision of law. Again, husband points to no law that makes this an appealable order. With respect to the sanctions aspect of the order, only orders for sanctions over $5,000 are immediately appealable. (Code Civ. Proc., Ãé§ 904.1, subd. (a)(12).) And to the extent the court denied reconsideration of previous rulings, the order was also not appealable. (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229.)

From our examination of the argument on this order in husband's brief, it appears the only aspect of the order he seeks to challenge on appeal is the denial of his motion for attorney fees based on his failure to file an income and expense declaration with the motion. To that extent, the order is appealable as a final order on a collateral matter. (In re Marriage of Skelley (1976) 18 Cal.3d 365.) Thus, we will address the merits of husband's appeal from this aspect of the May 13, 2009, minute order below. As to the remainder of the order, however, no appeal lies.

July 1, 2009, Minute Order

That leaves us with that third of the three remaining intermediate orders husband seeks to challenge on appeal. That order is the minute order dated July 1, 2009. This minute order actually postdates husband's notice of appeal, filed two weeks earlier. Because husband has offered no basis on which we could construe his June 15, 2009, notice of appeal as encompassing the minute order entered July 1, this order is not properly before us on appeal.*fn4

That means the only order husband seeks to challenge on appeal that is properly before us is the trial court's denial of his motion for attorney fees in the minute order dated May 13, 2009. In all other respects, husband's appeal is dismissed as untimely or as taken from non-appealable orders.

II

Attorney Fees

"'A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal.'" (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) "Discretion is abused only when, in its exercise, the court 'exceeds the bounds of reason, all of the circumstances being considered.'" (River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154, 181.) "'The burden is on the party complaining to establish an abuse of discretion . . . .'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) "[A]n appellant '"must affirmatively show error by an adequate record . . . ."'" (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.)

Here, husband has not carried his burden on appeal of demonstrating that the trial court abused its discretion in denying his motion for attorney fees in May 2009. First, husband has not pointed us to anywhere in the record where the actual motion the court denied appears. In the absence of the motion itself, we cannot find an abuse of discretion in the trial court's denial of it. Second, it appears from the order and from the transcript from the hearing that the trial court denied husband's request for attorney fees because he failed to file an income and expense declaration. Such a declaration is mandatory in these circumstances (see Cal. Rules of Court, rule 5.128(a)), so the trial court's ruling cannot be deemed to have exceeded the bounds of reason.

Husband contends the court should have allowed him to file his income and expense declaration belatedly before ruling on his motion. In support of this assertion, however, he cites only a rule of federal civil procedure, which obviously has no application in this state court proceeding, and Code of Civil Procedure section 473, subdivision (a)(1).*fn5 Husband did not seek relief in the trial court under this latter provision, however, and we cannot conclude that the trial court abused its discretionary power to grant relief under that statute when husband never sought that relief from the court.

At the hearing on his motion, husband did refer to "a provision in the Code of Civil Procedure" that gave him "the right to amend a pleading if it's defective." To the extent husband intended this as a reference to Code of Civil Procedure section 473, his reference was not accurate, since subdivision (a)(1) of that statute confers no such "right" on any litigant, but instead confers only the discretionary power on the court to grant relief from mistakes under certain circumstances. In any event, husband did not offer any reason to the court why he did not file the required income and expense declaration, and in the absence of such an explanation, we cannot conclude the trial court abused whatever power it had under Code of Civil Procedure section 473 to relieve husband from the consequences of his omission.*fn6

Finally, we note that to the extent the purpose of husband's appeal in this case is not to seek review of court orders but rather to seek review of the actions of wife's attorney in procuring those orders, that sort of review is beyond our power. Our role is to determine whether the appealable orders or judgments from which a party has properly and timely appealed are supported by substantial evidence and/or free of legal error or abuse of discretion. We have carried out that role here, and we can do no more.

DISPOSITION

The minute order dated May 13, 2009, is affirmed. In all other respects, husband's appeal is dismissed.

We concur:

NICHOLSON , Acting P.J.

BUTZ ,J.


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