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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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