Filed 9/9/15 In re Marriage of LaMoure CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of NATHAN and ROBIN LAMOURE.
NATHAN D. LAMOURE, E058817 Appellant, (Super.Ct.No. SBFSS71194) v. OPINION ROBIN LAMOURE,
Respondent;
MESA WEST, INC.,
SAN BERNARDINO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,
Respondent.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed.
1 Nathan D. La Moure, in pro. per., for Appellant.
Vogt, Resnick & Sherak and Jeany A. Duff for Respondent Mesa West, Inc.
No appearance for Respondent Robin LaMoure.
No appearance for Respondent San Bernardino County Department of Child
Support Services.
I
INTRODUCTION
This is Nathan La Moure’s third appeal in this marital dissolution action. Nathan
appeals the family court’s order entered on January 9, 2013, ordering the sale of Nathan’s
residence located at 30 Sea Island Drive, in Newport Beach (the Sea Island property), in
satisfaction of a civil judgment entered against Nathan.
Nathan contends the lower court did not have jurisdiction to order the sale of the
Sea Island property. The family court found the property was community property
owned by Nathan and his ex-wife, Robin La Moure. Nathan argues the order for sale of
the property by judgment creditor and respondent, Mesa West, Inc. (Mesa West), was
premature because there was no final judgment dividing the marital debts and assets. In
addition, the January 9, 2013 family court order was based on a judgment entered by a
separate court, the Orange County Superior Court, in a civil action.
Nathan also contends the lower court failed to follow California homestead
statutes, Code of Civil Procedure sections 704.710-704.850, and 704.910-704.990, when
ordering the sale of the Sea Island property, which is subject to a homestead exemption.
Nathan further argues Robin had no community property interest in the Sea Island
2 property, and the family court erred in finding that Robin is entitled to half of the
$175,000 homestead exemption. Nathan also argues the family court erred in ordering
the sale of the property without finding there was surplus property equity, in excess of
liens, to justify the sale order. Lastly, Nathan asserts the family court failed to weigh the
equities against a prejudgment sale of the Sea Island property, which Nathan had declared
his homestead residence.
We conclude the January 9, 2013 interlocutory order is not an appealable
judgment and there is insufficient justification for treating Nathan’s appeal as a petition
for an extraordinary writ. Furthermore, even considering Nathan’s contentions on the
merits, we reject Nathan’s challenges to the January 9, 2013 court order, and affirm the
order.
II
FACTUAL AND PROCEDURAL BACKGROUND
Nathan and Robin married in 1993. The couple had two sons, born in 1995 and
1998. In August 2002, Nathan’s law firm, Nathan D. La Moure, a Professional
Corporation, purchased the Sea Island property. Nathan and Robin separated in February
2003. A month later, in March 2003, Nathan filed for divorce.
Mesa West Litigation
Nathan provided Mesa West with legal services, beginning in 1976. Mesa West
dissolved in 2003 or 2004. In April 2005, Mesa West filed suit against Nathan and his
law firm in the Orange County Superior Court (Mesa West, Inc. v. Nathan D. La Moure,
et al., (Super. Ct. Orange County, 2006, No. 05CC05262) (Mesa West)). In the lawsuit,
3 Mesa West sought return of attorneys fees Nathan overbilled for legal services. In March
2007, Nathan’s law firm assigned to Nathan all of its beneficial interest in the Sea Island
property. In April 2007, the court awarded Mesa West a judgment against Nathan in the
amount of $909,214.36, for disgorgement of attorney fees. Nathan appealed the
judgment and in June 2007, filed an undertaking to stay enforcement of judgment
pending appeal. Nathan and his law firm, acting as sureties, pledged real property
including the Sea Island property.
In July 2007, Mesa West recorded an abstract of judgment with Orange County.
While Nathan’s Mesa West appeal was pending, in December 2008, ownership of the Sea
Island property was transferred from Nathan’s law firm to Nathan as an individual. After
Nathan lost his appeal in Mesa West and the Court of Appeal issued a remittitur in April
2009, Mesa West commenced judgment enforcement proceedings. In November 2009,
Nathan executed and recorded a declaration of homestead on the Sea Island property.
In January 2010, Mesa West recorded a certified judgment against the Sea Island
property. Mesa West obtained a writ of execution seeking to levy upon the Sea Island
property and sought to apply the property sales proceeds to satisfy the judgment against
Nathan and his law firm. In October 2010, the Orange County Superior Court in Mesa
West issued an order to show cause (OSC) re sale of the Sea Island property. Mesa West
asserted in its application for issuance of an order for sale of the Sea Island property that
the property did not qualify for a homestead exemption because the property was not the
primary residence of either Nathan or Robin when Mesa West’s lien was recorded in July
2007; Nathan stated in his declaration in the Mesa West action that his residence was on
4 Karenken Pines Drive, in Lake Arrowhead; title to the property did not transfer to Nathan
from his law firm until December 2008; and Nathan did not sign a homestead declaration
for the Sea Island property until November 2009.
The Orange County Superior Court continued the OSC hearing regarding the Sea
Island property, in deference to the family court’s determination of the characterization
and assignment of the Mesa West judgment debt, and allocation of the Sea Island
property sales proceeds.
Family Court Marital Dissolution Proceedings
On November 2, 2010, Mesa West filed a motion and declaration of joinder in the
instant family court action. Mesa West’s supporting declaration stated that it sought to be
joined as a claimant in the family court action on the grounds Mesa West held a judgment
lien in the amount of $909,214.36; the Mesa West judgment was recorded in July 2007;
in March 2010, the family court declared the Sea Island property community property;
and in September 2010, notice of levy against the Sea Island property was recorded.
Mesa West further stated it intended to request an order for sale of the property. In
September 2004, Robin recorded a lis pendens on the property, which clouded title and
therefore needed to be expunged so that Mesa West could proceed with its levy.
In May 2011, the family court conducted a one-day trial of the issues of
characterization and assignment of the marital debt and allocation of the Sea Island
property. On September 13, 2011, the court issued a proposed statement of decision.
The valuation date for the marital assets was deemed to be the date of separation,
February 18, 2003. Nathan and Robin were each awarded one-half of the community
5 property. The court concluded the value of the Sea Island property on the date of
separation was $475,000. The court noted the property had previously been determined
by the court to be community property. As to the value of the Sea Island property, the
court noted that Nathan had stated in various documents filed in the case that the value of
the property was around $400,000. Nathan had also produced a document showing the
property was listed at $475,000. The court ordered Nathan to pay Robin’s attorney fees
and ordered him to pay $50,000 in sanctions under Family Code section 271 based on
“(a) his uncooperative conduct; (b) his failure to abide by court orders designed to
address the uncooperative conduct; (c) his intentional secretion of community assets; (d)
his refusal to be truthful about the parties’ community assets; (e) and his overall
‘intransigence.’”
Mesa West filed an objection to the September 13, 2011 proposed statement of
decision, as did Nathan and Robin. Mesa West objected on the ground the proposed
statement of decision did not address trial issues regarding Mesa West’s and the
Department of Child Support Services’s (DCSS) interests in the Sea Island property.
Although the decision determined that the Sea Island property’s value was $475,000 and
Robin was entitled to her 50 percent interest in the property, the court did not make
findings on Mesa West and DCSS’s interests and allocation of their interests in the
property. During the trial, Mesa West presented evidence demonstrating the Mesa West
debt was community debt incurred during the marriage; the debt was reduced to a
judgment on April 13, 2007; and Mesa West recorded an abstract of judgment on July 18,
2007, creating a lien against the Sea Island property. Mesa West requested the family
6 court to modify its proposed statement of decision to address whether the Mesa West debt
was community property debt and how the debt should be satisfied from the Sea Island
property.
On March 27, 2012, the court issued a modified statement of decision (statement
of decision) incorporating the proposed statement of decision and adding the following
findings and rulings regarding Mesa West: “Mesa West was added as a party by way of a
Joinder Motion pertaining to Judgment obtained against [Nathan and his law firm] in
Orange County Superior case number 05CC0562. The money sought in the judgment, by
Mesa West, is a debt of the community. The issue is how to distribute and who has
priority of the proceeds of 30 Sea Island between DCSS, Mesa West and the parties. All
parties agree that DCSS has a priority lien. If, after the calculations are made, DCSS’
lien is extinguished then next in priority will be Mesa West. The court will order the sale
of 30 Sea Island to pay satisfy the community debt. The court further finds that it has and
retains jurisdiction as to the sale of any and all properties as well as the proceeds
thereof.”
Nathan filed an objection to the statement of decision. On July 31, 2012, the
family court amended the statement of decision (amended statement of decision). The
court corrected the address of the Sea Island property in the section of the statement of
decision referring to the assignment of properties. The court ordered the Sea Island
property assigned to Robin and the unpaid taxes on the property assigned to Nathan, with
the family court retaining jurisdiction over the orders. The amended statement of
decision further ordered the Orange County Sheriff to perform the sale of the Sea Island
7 property “forthwith.” In addition, the court ordered that “[t]he Department of Child
Support Services lien to remain on said property and to be discharged at the time of sale
if no monies are owed.” Nathan filed an objection and supplemental objection to the
amended statement of decision.
On January 9, 2013, the family court entered an order entitled, “Order for Sale of
Real Property – 30 Sea Island, Newport Beach, CA 92660,” in which the court found the
Sea Island property was community property; the value of the property at the time of
Nathan and Robin’s separation in February 2003, was $475,000; the Mesa West judgment
entered in April 2007 and recorded in January 2010 against the Sea Island property, was
community debt; and the property should be sold. In addition to ordering the property
sold, the court ordered that the property sales proceeds were to be applied in the
following order of priority: (1) payment of $175,000 in equal shares to Nathan and
Robin under Code of Civil Procedure section 704.730 (homestead exemption); (2)
reimbursement of costs to the levying officer; (3) payment of any remaining child support
to DCSS, and (4) payment of the remaining judgment balance to Mesa West, as judgment
creditor.
On January 24, 2013, the family court ruled that all prior statements of decisions
and amended statements of decisions were incorporated and would stand as a final order.
Mesa West filed a notice of entry of the January 9, 2013 order, which Nathan appeals.
III
REQUEST FOR JUDICIAL NOTICE
Nathan requests judicial notice of 13 documents filed in Mesa West (the
8 documents). The documents relate to Mesa West’s efforts in Mesa West to enforce its
judgment against Nathan, as judgment debtor. The documents were not submitted for
consideration by the family court in the instant case. Nathan requests judicial notice of
the documents under Evidence Code sections 459 and 452, subdivision (d). Evidence
Code Section 459, subdivision (a), provides in relevant part that “[t]he reviewing court
may take judicial notice of any matter specified in Section 452. [Emphasis added.]”
Under section 452, subdivision (d), the family court in its discretion may take judicial
notice of state and federal court records.
Nathan argues the documents are relevant to the instant appeal because they relate
to Mesa West proceedings mentioned in the instant appeal. Nathan asserts that the family
court in the instant action acted on information regarding Mesa West provided by
counsel. Nathan maintains, “Judicial notice is required to fully analyze and review the
court’s ruling on the details overlooked by the trial court.” The documents Nathan
requests this court to judicially notice are records and documents filed with the Orange
County trial court in Mesa West.
Mesa West objects to judicial notice of the documents on the grounds Nathan
failed to timely designate the documents on appeal and the documents are not relevant to
the instant appeal. We agree. Although the Mesa West proceedings were pending in the
Orange County Superior Court, not the San Bernardino Superior Court where the instant
family court matter was heard, the Orange County Superior Court delayed enforcing its
judgment in the Mesa West civil action until the family court ruled on the character and
9 division of the Sea Island property, in deference to the family court’s special jurisdiction
to characterize and divide community property.
“After a family law court acquires jurisdiction to divide community property in a
dissolution action, no other department of a superior court may make an order adversely
affecting that division. (In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1483–
1484 [civil law and motion department had no authority to order the sale of the family
home based on husband’s accrued support arrearages when the family law court still had
jurisdiction to divide the community interest in that home]; Hogoboom & King, Cal.
Practice Guide: Family Law, supra, ¶ 8:237.2 [‘Pending the ultimate valuation and
division, no other department of the superior court may issue orders that would adversely
affect the family law court’s ability to exercise its reserved jurisdiction.’].) Obviously,
the actual division of community property is affected by the characterization of specific
assets, so the issue of characterization also reposes in the family law court. (See
[Hogoboom & King, supra,] ¶ 8:199.1 [Family Law Act ‘subject matter jurisdiction has
always included authority to resolve all characterization disputes . . . .’].)” (Askew v.
Askew (1994) 22 Cal.App.4th 942, 961-962 (Askew).)
Because the court in Mesa West deferred to the family court in the instant case
determination of the character and division of the marital assets, the court in Mesa West
did not determine the issues which are subject to Nathan’s appeal here. The Mesa West
documents are therefore not relevant or helpful in the instant marital dissolution matter.
The documents are not necessary for this court to decide the issues raised in the instant
appeal. Furthermore, it is inappropriate for this court to consider documents which were
10 not before the family court when it decided the matter on appeal. (In re Zeth S. (2003) 31
Cal.4th 396, 405, 413-414; In re Robert A. (2007) 147 Cal.App.4th 982, 990.) “This is so
in part because an appellate court reviews the correctness of a record that was before the
trial court at the time it made its ruling.” (Robert A., at p. 990, citing Zeth S., at p. 405.)
Because the documents Nathan requests judicially noticed were not before the family
court at the time of the proceedings leading to the January 9, 2013 order, it is
inappropriate to augment the record by judicially noticing them. (Robert A., at p. 990.)
Nathan’s request for judicial notice of the 13 Mesa West documents is denied.
IV
NONAPPEALABLE ORDER
Nathan is appealing the order entered on January 9, 2013, in which the family
court entered an order determining that the Sea Island property is community property;
the value of the property at the time of separation was $475,000; and the Mesa West
judgment was community debt. The family court also ordered the property sold and
determined the priority of liens and encumbrances against the property. Mesa West
argues Nathan’s appeal should be dismissed because the January 9, 2013 order is not
appealable. We agree.
A. Appealability
Nathan contends the order is appealable as a postjudgment order under Code of
Civil Procedure section 904.1, subdivision (a)(2), or, alternatively, as an interlocutory
judgment in an action for partition under Code of Civil Procedure section 904.1,
subdivision (a)(9). Code of Civil Procedure section 904.1 provides in relevant part:
11 “. . . An appeal, other than in a limited civil case, may be taken from any of the
following: [¶] . . . [¶]
“(2) From an order made after a judgment made appealable by paragraph (1).
[¶] . . . [¶]
“(9) From an interlocutory judgment in an action for partition determining the
rights and interests of the respective parties and directing partition to be made.”
An appellate court lacks jurisdiction to entertain an appeal from a nonappealable
judgment or order. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424,
1432.) “Consequently, it is the duty of the court to dismiss an appeal from an order that
is not appealable.” (Ibid.) Under Code of Civil Procedure section 904.1, subdivision
(a)(1), an appeal may be taken from a judgment other than an interlocutory judgment. An
interlocutory judgment occurs when further judicial action is essential to a final
determination of rights of parties. (Bessinger v. Grotz (1942) 52 Cal.App.2d 379, 381.)
Under the “final judgment rule,” an appeal lies only from a final judgment, one
that effectively terminates the litigation. (Olson v. Cory (1983) 35 Cal.3d 390, 399;
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) This fundamental
principle of appellate practice is founded on the theory that piecemeal disposition and
multiple appeals in a single action are oppressive and costly. Therefore, a review of
intermediate rulings should await final disposition of the case. (Degnan v. Morrow
(1969) 2 Cal.App.3d 358, 362.) “The term ‘final judgment’ [however] is not limited to
those decrees or decisions which finally determine all the issues presented by the
pleadings. The term is equally applicable to a decree, order or decision which finally
12 determines a collateral matter distinct or severable from the general subject of the
litigation.” (Carradine v. Carradine (1946) 75 Cal.App.2d 775, 777.)
The one final judgment rule does not always apply in family law cases, because of
bifurcation of distinct issues for separate trials. “‘All issues incident to marital
termination need not be tried in a single family law proceeding. The court may, on
proper motion or at the request of the pretrial judge, order the trial bifurcated, allowing
early disposition of the dissolution issue and subsequent litigation of the property,
support and custody issues (or any other combination of issues and trials). [Citations.]’
[Citations.]” (In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 894.) Family Code
section 2337 provides, “(a) In a proceeding for dissolution of marriage, the court, upon
noticed motion, may sever and grant an early and separate trial on the issue of the
dissolution of the status of the marriage apart from other issues. [¶] . . . [¶] (f) A
judgment granting a dissolution of the status of the marriage shall expressly reserve
jurisdiction for later determination of all other pending issues.” (Fam. Code, § 2337,
subds. (a) and (f).) On noticed motion of a party, the stipulation of the parties, or its own
motion, the court may bifurcate one or more issues to be tried separately before other
issues are tried. (Cal. Rules of Court, rule 5.390(a).)1
In the instant case, the January 9, 2013 order is not appealable under Code of Civil
Procedure section 904.1, subdivision (a)(2), as a postjudgment order because there was
no judgment entered in the instant marital dissolution case before the family court entered
1 Undesignated rule references are to the California Rules of Court. 13 the January 9, 2013 order. Although there was a final judgment in the Mesa West civil
action, the instant appeal is not appealing the judgment or an order in Mesa West.
The January 9, 2013 order is also not appealable as an interlocutory order under
Code of Civil Procedure section 904.1, subdivision (a)(9). The January 9, 2013 order
was not an interlocutory judgment and the action is not an action for partition.
Furthermore, there was no bifurcation order severing the issues decided by the January 9,
2013 order from other issues or from dissolution of marital status, in accordance with
Family Code section 2337. “A judgment granting a dissolution of the status of the
marriage shall expressly reserve jurisdiction for later determination of all other pending
issues.” (Fam. Code, § 2337, subd. (f).) At the time of the trial on the issues that are the
subject of this appeal, there had not yet been an order granting dissolution of marital
status. There also was no court-ordered bifurcation of the issues adjudicated in the
January 9, 2013 order. (Cal. Rules of Court, rule 5.390(a); see rule 5.175(a), repealed eff.
Jan. 1, 2013.)
In In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1435 (Lafkas) the court
dismissed the former husband’s appeal for lack of jurisdiction. Following termination of
the parties’ marital status in Lafkas, the family court held a bifurcated trial involving the
division of disputed assets. The court found that the former husband’s interest in his
partnership was a community asset. The former husband appealed the order. The Lafkas
court held that it lacked jurisdiction to consider the former husband’s appeal in the
absence of a certificate of probable cause and order allowing the appeal of the bifurcated
issue. (Id. at pp. 1431-1432.) The Lafkas court further declined to exercise its discretion
14 to treat the former husband’s improper appeal as a petition for extraordinary writ of
mandate, and therefore dismissed the appeal. (Id. at pp. 1434-1435.)
The Lafkas court explained that, with the exception of orders terminating marital
status as a separate issue and other orders separately appealable, an order on a bifurcated
issue is not separately appealable unless the family court certifies (1) in an order that
there is probable cause for immediate appellate review of the issue or (2) in response to a
party’s motion made 10 days after mailing of the decision. (Rule 5.392, formerly rule
5.180, renumbered as rule 5.392, eff. Jan. 1, 2013; Fam. Code, § 2025; Lafkas, supra, 153
Cal.App.4th at p. 1433; see In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403-404
(Ellis).) “If the certificate is granted, a party may . . . file in the Court of Appeal a motion
to appeal the decision on the bifurcated issue.” (Rule 5.392(d).) “Failure to seek or
obtain appellate review of the decision on the bifurcated issue does not preclude review
of the decision upon appeal of the final judgment. (Rule 5.180(h) [now rule 5.392(h)].)”
(Lafkas, at p. 1433; see Ellis, at p. 404.)
Here, the Lafkas rationale for dismissing the instant appeal is even more
compelling because there was no previous order terminating marital status and no order
bifurcating issues in the instant case. As in Lafkas, a certificate of probable cause was
required to invoke this court’s jurisdiction. Even if there was a bifurcation order, Nathan
did not follow the procedure in Family Code section 2025 allowing an interlocutory
appeal on a bifurcated issue. No certificate of probable cause was obtained from the
family court and the family court has not made a finding that immediate appellate review
is desirable. This court therefore does not have jurisdiction to hear Nathan’s appeal.
15 (Lafkas, supra, 153 Cal.App.4th at pp. 1433-1434.) “[A]ppellate jurisdiction is wholly
statutory, and husband has not complied with the rules necessary to invoke appellate
jurisdiction over an interlocutory order.” (Lafkas, at p. 1434.)
B. Extraordinary Writ
Nathan urges this court to treat his appeal as an extraordinary writ in the event this
court concludes the January 9, 2013 order is nonappealable and therefore the court lacks
jurisdiction to entertain Nathan’s appeal. In Lafkas, the court rejected the former
husband’s similar request to treat his appeal as an extraordinary writ. The Lafkas court
concluded that the former husband had not shown exigent reasons for not waiting until
final judgment to review the interlocutory order characterizing the husband’s interest in
his partnership enterprise as community property. (Lafkas, supra, 153 Cal.App.4th at pp.
1434-1345.) The Lafkas court noted that the partnership asset was not the only asset that
needed to be characterized, valued, and divided, and also left undecided valuation and
division of the partnership asset. (Id. at p. 1345.)
Here, the family court provided a detailed, comprehensive statement of decision
addressing the division and distribution of the marital assets, as well as ruling on other
issues, including child custody, the date of separation, sanctions, and attorney fees.
However, some issues remained undecided and marital status was not terminated.
Nathan argues the January 9, 2013 order to sell the Sea Island property was premature
because the order was not a final judgment of dissolution or final judgment dividing the
marital assets and debts. If this is the case, then it would also be premature for this court
to review the January 9, 2013 order at this stage of the family court proceedings.
16 In Ellis, supra, 101 Cal.App.4th 400, the court in postdissolution of marriage
proceedings, exercised its discretion in treating the former husband’s appeal as an
extraordinary writ for the purpose of reviewing the family court’s order finding that the
former husband’s health insurance subsidy benefits were divisible community property.
The Ellis court held the order was not appealable because it was interlocutory. (Id. at p.
403.) Nevertheless, the Ellis court treated the appeal as a petition for an extraordinary
writ because both parties agreed in the trial court it was prudent and economical to
bifurcate the property characterization issue from the issue of valuation; if the medical
subsidy was not divisible, an expensive trial to determine its value would be unnecessary;
the merits had been fully briefed; the former wife raised no objection to the appeal in her
respondent’s brief and thus impliedly agreed to the appellate court ruling on the merits;
and, in response to the Ellis court requesting supplemental briefing on the appealability of
the order, both parties requested the appeal be treated as a writ. (Id. at p. 404.)
The instant case is distinguishable from Ellis. The January 9, 2013 order does not
involve postdissolution of marriage proceedings, and the parties did not agree in the
family court or on appeal to bifurcate the issues concerning the Sea Island property and
treat the appeal as an extraordinary writ. Robin objects to this court reviewing the matter.
Nathan also has not established that such bifurcation and treatment of the appeal as an
extraordinary writ would avoid an expensive trial or have bearing on any future
proceedings in the action. The record demonstrates there is little, if any, possibility of
Nathan avoiding the sale of the Sea Island property. Rather, the sale and division of the
proceeds is inevitable. The court in Mesa West has already entered judgment against
17 Nathan and ordered the sale of the Sea Island property in satisfaction of the Mesa West
judgment. In deference to the family court proceedings, the Mesa West court postponed
the sale until the family court made its findings and entered orders on the
characterization, valuation, and division of the Sea Island property. Now that that has
been done and the family court has ordered the property sold, there is no reason to delay
further sale of the property.
We see no reason to treat Nathan’s appeal as an extraordinary writ, other than
because the issues have been fully briefed and are before this court. This is not
persuasive justification for treating this matter as an extraordinary writ. Nevertheless we
will consider the merits of Nathan’s appeal so as to preclude Nathan from raising the
same objections in a future appeal of the final judgment in this case.
V
ORDER TO SELL THE PROPERTY
Nathan argues that the family court did not have jurisdiction to enforce the Mesa
West judgment and order the Sea Island property sold. Nathan asserts the family court
acted in excess of its jurisdiction when ordering a levy on the Sea Island property, which
the court found to be community property. He further contends the Sea Island property
was his separate property, and the family court could not order it sold, particularly before
entry of a final judgment.
Under Family Code section 2010, “[i]n a proceeding for dissolution of marriage
. . ., the court has jurisdiction to inquire into and render any judgment and make orders
that are appropriate concerning the following: [¶] . . . [¶] (e) The settlement of the
18 property rights of the parties.” The actual division of community property is affected by
the characterization of specific assets, so the issue of characterization reposes in the
family court. (Askew, supra, 22 Cal.App.4th at p. 962.) The family court’s subject
matter jurisdiction includes the authority to divide, characterize, and place a value on
property. (§§ 2550-2552; Askew, at p. 962.) The family court therefore has the power
and authority to order a sale of the community property when, in the exercise of sound
judicial discretion, the court concludes it should do so in order to accomplish an equal
division of the community property. (In re Marriage of Davis (1977) 68 Cal.App.3d 294,
306, 308-309.)
In the instant case the family court appropriately found that the Sea Island
property was community property and that the $909,214.36 Mesa West judgment was
community debt. The family court also had the authority and appropriately exercised its
discretion in dividing equally between Nathan and Robin the $175,000 homestead on the
Sea Island property. Doing so was a reasonable exercise of the family court’s discretion.
The family had jurisdiction to make its findings regarding the Sea Island property, and
there was substantial evidence supporting the court’s findings. There was evidence the
Mesa West debt was incurred during the marriage and the Sea Island property was
acquired and paid for with community property assets, including earnings from Nathan’s
law practice. Nathan has not demonstrated that the family court abused its discretion in
ordering the sale of the Sea Island property to satisfy the Mesa West judgment debt or in
ordering the $175,000 homestead exemption divided equally between Nathan and Robin.
19 Nathan argues the family court erred in not complying with the requirements of
Code of Civil Procedure section 704.740 when ordering the Sea Island property sold.
Code of Civil Procedure section 704.740 provides in relevant part that “the interest of a
natural person in a dwelling may not be sold under this division to enforce a money
judgment except pursuant to a court order for sale obtained under this article and the
dwelling exemption shall be determined under this article.” Specifically, Nathan argues
the family court failed to comply with Code of Civil Procedure section 704.800,
subdivision (a), which requires a homestead cannot be sold pursuant to court order unless
the sale amount exceeds the amount of the homestead exemption, plus amounts necessary
to satisfy all liens and encumbrances on the property.
The family court order to sell the Sea Island property in furtherance of dividing
and distributing the marital assets is not subject to judgment enforcement provisions,
such as Code of Civil Procedure sections 704.740 and 704.800. Nathan has not cited any
authority supporting the proposition that the family court is subject to these judgment
enforcement provisions when ordering the division and distribution of marital assets.
Furthermore, there is substantial evidence demonstrating that the value of the Sea Island
property exceeded the amount of the homestead exemption plus amounts necessary to
satisfy all liens and encumbrances on the property. The family court found the Sea Island
property value was $475,000 and there were no encumbrances. Nathan has not cited
substantial evidence refuting these findings, and the reporter’s transcript and evidence
presented during the trial of these issues is not part of the record on appeal.
20 The record shows the family court determined the homestead exemption was
$175,000, and the only potential remaining lien on the Sea Island property was the DCSS
lien. Counsel for the DCSS informed the court at a hearing on May 25, 2012, on the
parties’ objections to the family court’s statement of decision, that DCSS had updated its
accounting on its lien, DCSS had determined that the DCSS lien had been satisfied, and
Nathan had overpaid DCSS in an amount of $15,574. Robin also informed the family
court during a hearing on December 7, 2012, that there was no outstanding DCSS lien
and she requested DCSS to terminate services and the court to vacate all DCSS orders for
child support. The family court confirmed with the parties and counsel for DCSS that
there was no remaining DCSS lien balance against the Sea Island property. There is
substantial evidence establishing that there were no liens or encumbrances on the Sea
Island property, other than the Mesa West judgment lien. Therefore, the order to sell the
Sea Island property was in compliance with the Enforcement of Judgments Act because
the value of the Sea Island property exceeded the amount of the homestead exemption
plus any liens and encumbrances on the property, other than the Mesa West judgment
lien.
VI
CONSIDERATION OF THE EQUITIES
Nathan contends the family court abused its discretion in ordering the sale of the
Sea Island property by not taking into consideration the equities against a prejudgment
sale of the property. The July 31, 2012 amended statement of decision states that Nathan
and Robin’s two sons were living with Nathan and the children were free to visit Robin
21 as they wished. Nathan and his teenage sons were living at the Sea Island property. The
court ordered joint legal and physical custody. Nathan argues that the family court was
required to consider the equities of ordering the Sea Island property sold, including the
impact the sale of the Sea Island property would have on Nathan’s two minor children.
We note that one of Nathan’s sons is now 19 years old and therefore no longer a minor,
and the other son will no longer be a minor in January.
Under Family Code sections 3801 and 3802, family courts are authorized to issue
an order deferring sale of the family home if the court determines it is necessary in order
to minimize the adverse impact of marital dissolution or legal separation on the child and
it is economically feasible to maintain the physical condition of the home and required
house payments during the deferral period. (Fam. Code, §§ 3801, 3802; In re Marriage
of Braud (1996) 45 Cal.App.4th 797, 807-808.)
Nathan argues the family court abused its discretion by not considering or making
any findings weighing the equities against selling the Sea Island property while he and
his sons were living there. Nathan asserts the family court should have considered the
mandatory factors required when determining whether to enter a “Duke Order” deferring
the sale of the Sea Island property. In In re Marriage of Duke (1980) 101 Cal.App.3d
152, 158-159, the court held that the family court abused its discretion by not weighing
the equities when it rejected the custodial parent’s request to defer the sale of the family
residence until the children were no longer minors. In reaching its holding, the Duke
court stated, “we feel the subjective noneconomic impact on the family unit from being
deprived of a home environment to which the children have become accustomed is
22 sufficiently significant to allow the court to enter a conditional order such as requested so
long as undue hardship is not imposed on the noncustodial parent.” (Id. at p. 157.) The
Duke court further stated that, “Where there are minor children whose custody is to be
awarded to a party, the custodial party is not financially able to acquire the family home
as his or her property share, and that person desires a conditional order be made allowing
him or her exclusive use of the home, the unique relationship of that asset to the family
requires an analysis of all relevant factors . . . .” (Id. at p. 158.)
In In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 748, the court
indicated that under Duke the family court was required to order that the sale of a family
residence be deferred and that such an order be made “where adverse economic,
emotional and social impacts on the minor result from an immediate loss of a long-
established family home and are not outweighed by the economic detriment to the out-
spouse by the delay in receiving his or her share of the proceeds in the equity of the
family home.” Stallworth added that “the trial judge should weigh these factors, as well
as others, and be vested with broad discretion in making a disposition of the family home.
[¶] . . . As a practical matter, it should be noted that the emotional attachment of a child
to a home may be minimal if the child is very young and of questionable significance if
the child is an older teenager.” (Ibid.; emphasis added.)
Nathan has not established the family court erred in not imposing a Duke order
delaying the sale of the Sea Island property. In the instant case, Nathan asserts the Sea
Island property was not the family home because it was his separate property and both
parties did not reside there before separation. In addition, the sale of the Sea Island
23 property was necessary to satisfy substantial outstanding marital debts and liens against
the home, such as the $909,214.36 Mesa West judgment. Furthermore, it appears from
the record that Nathan did not request the family court to enter a Duke order to defer the
sale of the Sea Island property until his sons reached the age of majority.
The record also reflects that the family court spent an inordinate amount of time
and effort reviewing the facts, evidence, issues, and equities before it. The family court
provided the parties with a detailed proposed statement of decision, considered the parties
objections, conducted additional hearings on the issues addressed in the proposed
statement of decisions, and amended the statement of decision several times in response
to the parties’ objections. Nathan has not provided any evidence that the family court
failed to weigh the equities or abused its discretion in ordering the Sea Island property
sold.
VII
DISPOSITION
The January 9, 2013 order is affirmed. Robin is awarded her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.