Marriage of Galvan
Filed 3/13/07 Marriage of Galvan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of ROSA M. and HENRY H. GALVAN. | |
ROSA M. GALVAN, Respondent, v. HENRY H. GALVAN, Appellant. | D048284 (Super. Ct. No. D00712) |
APPEAL from an order of the Superior Court of Imperial County, Barrett J. Foerster and Donal B. Donnelly, Judges. Affirmed.
I.
INTRODUCTION
Henry Galvan (Henry) and Rosa Galvan (Rosa) were married in 1996. In 2001, the parties entered into a marital settlement agreement that was incorporated into a final judgment of marital dissolution on August 10 of that year. In December 2004, Henry filed a postjudgment motion (Fam. Code, 2556)[1]requesting division of the "family residence" as an omitted asset that was not adjudicated in the judgment of dissolution.
On November 7, 2005, the trial court issued an order finding the residence to be an omitted asset and setting a valuation date of August 10, 2001, the date of the dissolution judgment. On February 24, 2006, the court entered a final postjudgment order[2]determining that as of August 10, 2001, the value of the residence was $110,000 and that the equity in the residence was $26,391. The court ordered Rosa to pay Henry $13,140.50 to equalize division of the property.
Henry appeals from the postjudgment order granting his motion. He claims that the trial court erred in issuing its November 7, 2005 order adopting August 10, 2001 as the valuation date. We affirm the November 7, 2005 order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Henry and Rosa bought the residence in 1989. In 1996, they married. In 1999, Henry executed a quitclaim deed transferring the property to Rosa. Henry asserts in a declaration that he did so only to protect the residence from potential creditors. Rosa asserts in a declaration that Henry did so in connection with their then pending separation and her agreement to assume obligations on the residence and to refrain from seeking child support.
In October 2000, Rosa conveyed the property to her children. On March 8, 2001, Rosa filed a petition for dissolution of the marriage. Rosa's petition did not list the residence as either her separate property or as a community asset. On March 26, 2001, Rosa's children conveyed the residence to her.
On April 7, 2001, Rosa and Henry entered into a marital settlement agreement. The agreement did not refer to the residence. However, the agreement did state that Rosa was solely responsible for paying a "Golden One Mortgage account no. [9999999]" and a "Wells Fargo Mortgage loan no. [99999999]." Rosa stated in her declaration in the omitted asset proceeding that these accounts were loans secured by the residence. The court adopted the marital settlement agreement and entered a judgment of dissolution on August 10, 2001.
In December 2004, Henry filed a motion requesting division of the residence as an omitted asset. On September 22, 2005, the trial court held a hearing on Henry's motion. At the conclusion of the hearing, the trial court tentatively ruled that the residence was an omitted asset and set a valuation date for the residence of August 10, 2001. On November 7, 2005, the trial court confirmed its tentative ruling.
On February 8, 2006, the trial court held a hearing for the purpose of determining the value of the residence and the parties' equity as of August 10, 2001. The parties stipulated that the residence would be awarded to Rosa, and that she would be required to pay Henry one-half of the equity in the residence as of August 10, 2001. On February 24, 2006, the court entered a final postjudgment order requiring that Rosa pay Henry $13,140.50 to equalize division of the property.
Henry appeals, claiming that the court erred in setting August 10, 2001 as the valuation date.
III.
DISCUSSION
A. Appellate jurisdiction
Rosa claims that Henry failed to timely appeal from the trial court's November 7, 2005 order[3]granting Rosa's request to adopt a valuation date of August 10, 2001.
Civil Code of Procedure section 904.1 provides in relevant part:
"(a) . . . An appeal, other than in a limited civil case, may be taken from any of the following:
"(1) From a judgment. . . .
"(2) From an order made after a judgment made appealable by paragraph (1)."
[] . . . []
"(10) From an order made appealable by the provisions of . . . the Family Code."
In Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652 (Lakin), the Supreme Court stated that, notwithstanding the broad statutory language of Code of Civil Procedure section 904.1, subdivision (a)(2) (formerly subdivision (b)), not every postjudgment order that follows a final judgment is appealable. As an example, the Lakin court stated that postjudgment orders that are "preliminary to later proceedings," are not appealable. (Lakin, supra, 6 Cal.4that p. 656.)
The trial court's November 7, 2005 order contemplated further proceedings to determine the actual value of the property as of August 10, 2001. Accordingly, the November 7, 2005 order was not an appealable order pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). (Lakin, supra, 6 Cal.4th at p. 656.)
We also reject Rosa's argument that Henry was required to attempt to appeal from the November 7, 2005 order pursuant to the discretionary bifurcated appeal procedure provided in section 2025. (See 2025 ["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"].)
We conclude that the November 7, 2005 order was a nonappealable interlocutory order. The trial court rendered a final order determining the value of the property on February 24, 2006. Henry timely appealed from the February 24, 2006 order. Accordingly, this court has jurisdiction to review the interim November 7, 2005 order in Henry's appeal from the trial court's February 24 final postjudment order.
B. The trial court did not err in adopting the August 10, 2001 valuation date for
the omitted asset pursuant to section 2556
Henry claims the trial court erred in adopting the August 10, 2001 valuation date for the omitted asset. He maintains that the trial court should have valued the residence as of February 8, 2006, the date of the omitted asset hearing.
Section 2552 specifies the law that a trial court is to apply in initially valuing a community estate upon dissolution of the parties:
"(a) For the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties, except as provided in subdivision (b), the court shall value the assets and liabilities as near as practicable to the time of trial.
"(b) Upon 30 days' notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate of the parties in an equitable manner."
Section 2556 specifies a separate statutory procedure by which a trial court may "reopen marital proceedings to award community assets or liabilities that have not been previously adjudicated." (In re Marriage of Braendle (1996) 46 Cal.App.4th 1037, 1043.) Section 2556 provides:
"In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, 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 postjudgment 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."
Henry claims that the trial court's order specifying an alternate date of valuation did not comply with the "good cause" and "30 day[] notice" requirements contained in section 2552, subdivision (b). In addition, Henry claims that the order was not based on a motion supported by declaration, as required by California Rules of Court, rule 5.126. (See rule 5.126 [specifying contents of notice and supporting declaration required by section 2552, subdivision (b)].)
Assuming for the sake of argument that Henry has not invited any such error by expressly acquiescing in the court's resolution of the alternate valuation date issue at the September 22 hearing, his claim is without merit. Henry's motion was an omitted asset motion brought pursuant to section 2556. Henry has cited no authority, and our independent research has revealed none, that stands for the proposition that the requirements specified in a section 2552 proceeding apply to a section 2556 proceeding. If the Legislature had intended for such a process, it could have so provided in the statutes. It has not, and we may not read the provisions of section 2552 into section 2556. (See People v. Massicot (2002) 97 Cal.App.4th 920, 925 ["courts 'may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used'"].)
Henry also asserts that the trial court lacked authority to specify an alternate valuation date because it failed to articulate how such a specification would accomplish an equal division of the community estate. (See 2552, subd. (b).) This argument also fails because the limitations of section 2552, subdivision (b) do not apply to a section 2556 proceeding. The text of section 2556 is silent with respect to the date a trial court should use to value an omitted asset.
In any event, to the extent Henry's argument can be construed as a raising a claim that the trial court violated section 2556 in specifying an alternate valuation date, and assuming further that a trial court must presumptively apply the section 2556 hearing date as the date of valuation in a section 2556 proceeding, the trial court expressly stated its reasons for choosing an alternate valuation date. The trial court stated that Henry had engaged in "laches and unjust delay" and that it would "clearly be unjust" to use the section 2556 hearing date as the valuation date. The trial court also indicated that it was unlikely that Henry had truly forgotten "about the most valuable asset in their marriage," and referred to the "shenanigans that [were] going on between the parties around the time of the divorce."
Henry fails to address any of the reasons the trial court provided for specifying an alternate valuation date, all of which are supported by substantial evidence in the record. (Cf. In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1550 [trial court's specification of an alternate valuation date pursuant to section 2552 will be affirmed where the court exercised its discretion along legal lines, [and] there is substantial evidence to support it].)
Henry transferred the residence to Rosa in 1999 and signed a marital settlement agreement in 2001 that contained no reference to the residence. Notwithstanding these actions, Henry stated in a declaration filed in the omitted asset proceeding that he has "always believed" that he was entitled to a share of the residence. Henry further stated, "A little over a year after our divorce I told [Rosa] I was going to get an attorney to get my half of the house." Nevertheless, Henry did not file this motion until December 2004 ─ more than three years after the divorce. Henry asserted in his July 2005 declaration that, at that time, the house was valued between $195,000 and $200,000.
Further, the record clearly supports a finding that Henry was aware of the existence of the residence at the time of the judgment of dissolution. Moreover, between the time of the dissolution and the hearing on Henry's omitted asset motion, Rosa has shouldered the responsibilities of owning the residence, including paying loans secured by the residence.[4] There is thus substantial evidence that Henry knowingly delayed attempting to seek title to his portion of the residence, and that Rosa was prejudiced by this delay. The trial court did not abuse its discretion in concluding that Henry should receive only that portion of the equity of the residence that he would have received if he had asserted his claim to the residence in a timely manner.
We conclude the trial court did not err in adopting August 10, 2001 as the valuation date for the omitted asset, pursuant to section 2556.
III.
DISPOSITION
The trial court's November 7, 2005 order is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
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[1] Unless otherwise specified, all subsequent statutory references are to the Family Code.
[2] Although the court's February 24, 2006 ruling is denominated a "judgment" in the clerk's transcript, it is a postjudgment order. (See In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 1121 [describing the postjudgment omitted asset procedure provided in section 2556].) Accordingly, throughout this opinion we refer to the February 24, 2006 ruling as an "order" rather than a "judgment."
[3] The trial court held a hearing on September 22, 2005, and issued a "tentative" ruling setting a valuation date of August 10, 2001. On November 7, 2005, the court issued an order that provides, "The court grants [Rosa's] request to value the property as of August 10, 2001." Accordingly, while the parties refer to September 22, 2005 as the date on which the court adopted the alternate date of valuation, the record indicates that the order was actually issued on November 7, 2005.
[4] We acknowledge that Rosa has apparently enjoyed the sole use of the residence during this time period.
