Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Orange County No. 99D006499, Gale P. Hickman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.); and Francisco F. Firmat, Judge.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant Jayne Jones.
Law Offices of Steven G. Nordhoff, Steven G. Nordhoff and Kristin M. Wirgler for Appellant Steven Mathisen.
OPINION
MOORE, J.
In her appeal from a judgment on reserved issues in a marital dissolution proceeding, Jayne Mathisen (Jayne) claims the court erred with respect to its rulings on the date of separation and the characterization of a piece of real property acquired after separation. In addition, she makes a vague argument concerning the division of the marital residence. In his cross-appeal, Steven Mathisen (Steven) claims the court erred in failing to value the goodwill of a car rental agency.
We do not reach the substance of the appeals, which are hereby dismissed for lack of jurisdiction. The judgment on reserved issues from which the parties appeal says that certain issues are unresolved and are bifurcated for later resolution. Consequently, the parties were required to obtain a certificate of probable cause, pursuant to Family Code section 2025 and California Rules of Court, rule 5.180, in order to permit appellate review at this time. Since they failed to do so, we cannot hear the appeal. The parties have only themselves to blame if the judgment they prepared did not say what they meant. Moreover, although both parties beg this court to hear the appeal, one party always has to lose. The loser will argue that this court had no jurisdiction to hear the appeal, inasmuch as argument concerning the court’s jurisdiction is never waived. Most importantly, neither the parties nor this court can create jurisdiction where there is none. (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1432.)
I
FACTS
Jayne filed a petition for dissolution of marriage on July 7, 1999. In that petition, she alleged that the parties had separated on May 1, 1998.
On January 3, 2001, the court entered a judgment of dissolution as to status only. Marital status was terminated as of December 19, 2000. Jurisdiction was reserved over all other issues. In a May 18, 2001 minute order and a July 19, 2001 findings and order after hearing the court found that the date of separation was May 1, 1998.
At the time of trial, the matters remaining unresolved included those pertaining the valuation of a car rental agency and the division of real property. One property, acquired after separation, was located on Cypress Street in Newport Beach (the “Cypress” property). The other property, the marital residence, was located on Cinco de Mayo in Fountain Valley (the “Cinco de Mayo” property). In addition, Steven continued to argue the date of separation, despite prior orders on the subject.
The record reflects that the trial on reserved issues began on August 28, 2003, and as of the last date reflected in this record, i.e., January 9, 2007, had taken place over 18 dates, although matters remained unresolved even then. Over the course of trial, the parties entered into a number of stipulations. The January 9, 2007 judgment on reserved issues, provided, inter alia, that the Cypress property and the Cinco de Mayo property were community property. It also recited the property division as stipulated by the parties. In addition, the judgment stated that the date of separation was July 7, 1999. Finally, the judgment stated that Jayne had no goodwill in the car rental agency.
Jayne filed an appeal challenging the characterization of the Cypress property, the division of the Cinco de Mayo property, and the date of separation. Steven filed a cross-appeal challenging the ruling on the car rental agency.
By order of January 15, 2008, this court informed the parties that it was considering dismissing the appeals as taken from a nonappealable interlocutory judgment, and requested supplemental briefing on the appealability issue. Jayne and Steven each filed a supplemental letter brief. In addition, the parties further argued the appealability issue at oral argument.
II
DISCUSSION
A. January 9, 2007 Judgment
The court’s minute order of June 21, 2005, the last trial date before January 9, 2007, indicates the parties had informed the court that they had “reached a full stipulation” and that they would “work on and . . . submit the formal judgment.” However, more than a year and a half elapsed before the parties submitted the formal judgment.
On January 9, 2007, the parties, in court for trial on remaining issues, informed the court that they had agreed to a judgment, although they had not completely settled the case. Steven presented a proposed judgment that had been approved by Jayne. That same date, the court entered the judgment as proposed. It also continued the trial to March 13, 2007, to address additional issues.
The January 9, 2007 judgment recited the history of the litigation, including certain court rulings made along the way, and recapitulated partial stipulations made on August 28, 2003, June 16, 2005, and June 21, 2005. The nine-page judgment did not address these matters in chronological order, but rather, presented them in a jumbled format.
The judgment encapsulated the prior court rulings on issues pertaining to the transmutation of the Cinco de Mayo and Cypress properties, the valuation of the car rental agency, and the date of separation. It also itemized issues as to which the parties had stipulated, including without limitation, the division of certain personal property and the division of the Cinco de Mayo and Cypress properties.
In addition, the judgment recited that the parties had stipulated to sell the Cinco de Mayo property. Each party agreed to pay one-half of the expenses needed to make the property saleable. The net proceeds of sale after taking various enumerated items into account, would be paid to Steven, charged as community property. He would also be entitled to a Family Code section 2640 reimbursement. The judgment further provided, as stipulated: “The Court reserves jurisdiction over all aspects of the house sale and any subsequent equalization payment made by either party to the other.”
Paragraph 19, appearing on the sixth page of the nine-page judgment, states: “This Judgment on Reserved Issues resolves all remaining issues between the parties (unless otherwise reserved) with the exception of attorney fees and other previously reserved issues (retirement, Qualified Domestic Relations Order, IRAs, the book collection, the [Cinco de Mayo] house sale, and equalization payment). All remaining issues are bifurcated and reserved.”
B. Appealability of Judgment:
(1) Question presented
In our January 15, 2008 order, this court quoted paragraph 19 of the judgment and stated: “The parties are requested to file supplemental letter briefs addressing whether the January 9, 2007 judgment on reserved issues is nonappealable and the appeal should be dismissed for failure to obtain a certificate of probable cause and comply with California Rules of Court, rule 5.180. (See In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429 [no appeal in violation of one final judgment rule and Cal. Rules of Court, rule 5.180]; Family Code § 2025.)”
(2) General rules
“‘“There is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control.”’ [Citations.] Appellate jurisdiction cannot be created by consent, waiver, or estoppel. [Citations.] ‘A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.’ [Citation.] In civil cases there normally can only be an appeal from a final judgment. [Citation.] If there are unresolved causes of action between the parties, the judgment is not final and an appeal therefrom must be dismissed. [Citations.] ‘Whenever there is doubt as to whether we have jurisdiction to hear an appeal, we must raise that issue on our own initiative.’ [Citation.]” (In re Marriage of Lafkas, supra, 153 Cal.App.4th at p. 1432.)
“We thus turn to the question of whether this family law appeal is within our jurisdiction. Disputes over the division of marital property may be litigated separately from the proceedings to dissolve the marriage. [Citation.] An interlocutory judgment dissolving a marriage, and collateral issues decided with finality that are embodied in the judgment of dissolution, are appealable. [Citation.] The appeal in this case was not taken from the judgment dissolving the marriage.” (In re Marriage of Lafkas, supra, 153 Cal.App.4th at p. 1433.)
Rather, the appeal was taken from a judgment on reserved issues, which stated in paragraph 19 thereof that certain remaining issues were bifurcated for later resolution. This provision triggered the application of Family Code section 2025.
Family Code section 2025, applicable in the event of a bifurcation, provides as follows: “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. Certification by the court shall be in accordance with rules promulgated by the Judicial Council.” The applicable rule is California Rules of Court, rule 5.180.
As explained in In re Marriage of Lafkas, supra, 153 Cal.App.4th 1429: “A family law court may bifurcate trial on one or more issues, including division of property or child custody, if resolution of the bifurcated issue is likely to simplify the determination of the other issues. (Cal. Rules of court, rules 5.175(a), 5.175(c).) Although an order on a bifurcated issue is not separately appealable, the family law court may certify in its order that there is probable cause for immediate appellate review of the issue, or it may do so in response to a party’s motion made 10 days after mailing of the decision. (Rule 5.180(b); see [Family Code] § 2025.) ‘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 5.180(d)(1).) 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).)” (In re Marriage of Lafkas, supra, 153 Cal.App.4th at p. 1433, footnotes omitted.) Thus, as in In re Marriage of Lafkas, supra, 153 Cal.App.4th 1429, “[a] certificate of probable cause was required . . . in this case to invoke the appellate jurisdiction of this court.” (Id. at p. 1433.)
In In re Marriage of Lafkas, supra, 153 Cal.App.4th 1429, marital status was terminated in 2001, but the division of assets was unresolved at that time. (Id. at pp. 1431-1432.) In 2003, one property issue, concerning the characterization of the husband’s interest in a business, was bifurcated for trial. In 2005, an order labeled a “judgment” held that the asset was a community asset. (Id. at p. 1432.) The husband filed an appeal from the 2005 order. The court dismissed the appeal for lack of jurisdiction, “because the order on the bifurcated issue [was] not an appealable judgment or order, and no certificate of probable cause [had been] obtained from the trial court pursuant to Family Code section 2025.” (Ibid., fn. omitted.)
As the Lafkas court further explained, “[a]lthough the order on the bifurcated trial resolved some of the issues concerning [the business enterprise], it did not resolve all of them, and issues concerning other property were still pending. For example, issues regarding the retirement plans, deferred compensation, and a house . . . remain[ed] unresolved. Moreover, the order on the bifurcated issue did not fix the value of the profits and rental income from [the business enterprise] that the trial court ordered divided . . . . Thus, the order appealed from [was] merely preliminary to a final order characterizing, valuing, and dividing all the marital assets. Husband did not follow the procedure in section 2025 allowing an interlocutory appeal on a bifurcated issue. No certificate of probable cause was obtained from the family law court. Accordingly, [the court had] no jurisdiction to hear the appeal.” (In re Marriage of Lafkas, supra, 153 Cal.App.4th at pp. 1433-1434, fn. omitted.)
(4) Application
In the case before us, the judgment on its face states that there are remaining matters that are unresolved and are bifurcated. Consequently, the case of In re Marriage of Lafkas, supra, 153 Cal.App.4th 1429 compels the conclusion that the appeal must be dismissed for lack of jurisdiction. Interestingly, neither party chose to address Lafkas in his or her supplemental letter brief, but each party insists that this court does indeed have jurisdiction to hear the appeal.
Jayne claims that, even though the judgment states that certain matters are bifurcated for later resolution, it is not really true. She contends that while paragraph 19 of the judgment says that certain “remaining issues are bifurcated and reserved,” that “language may be misleading.” She emphasizes that the judgment contained a variety of adjudications and stipulations made over a period of time and that paragraph 19 needs to be confined to the date of June 21, 2005. She insists that reading the judgment in its totality shows that issues pertaining to retirement, a qualified domestic relations order, IRA’s, a book collection, and the Cinco de Mayo property sale are not actually outstanding, but have been resolved. At the same time, she acknowledges that the matter of the equalization payment arising out of the sale of the Cinco de Mayo property has not been resolved, but she contends it “is something that cannot be determined until” certain separation date and transmutation issues are resolved on appeal.
Steven, on the other hand, indicates that the equalization payment is not the only unresolved item. He asserts that “remaining issues relate to a few retirement plans, a book collection and an equalization payment.”
Jayne cites In re Marriage of Schultz (1980) 105 Cal.App.3d 846, in an effort to show that this court has jurisdiction because the judgment at issue before us does not contain a true bifurcation provision, but really only contains a provision reserving jurisdiction to address certain postjudgment issues that may later arise. In Schultz, the interlocutory judgment of dissolution directed the sale of the family home and the placement of the proceeds of the sale into a trust. (Id. at p. 849.) When the home was later sold, the wife sought a contempt order against the husband, alleging that he was impeding disbursement of the funds. (Ibid.) The court entered a postjudgment order substantially adopting the wife’s accounting and declaring certain obligations to be community obligations, while retaining jurisdiction to allow the husband to challenge the validity of the wife’s accounting later on. (Id. at p. 851.) The appellate court held that the postjudgment order was appealable, notwithstanding the reservation of jurisdiction, because it “affect[ed], with finality, the distribution of the remaining community assets.” (Id. at p. 852, fn. omitted.)
However, In re Marriage of Schultz, supra, 105 Cal.App.3d 846 did not involve a judgment stating that certain issues were bifurcated for later resolution, and did not address Family Code section 2025. Rather, it only addressed a postjudgment order reserving jurisdiction for accounting purposes. Given this, Schultz might be persuasive with respect to the question of whether a reservation of jurisdiction concerning the Cinco de Mayo property equalization payment would bar appellate review, if that were the only issue in the case before us. However, Schultz does not resolve the particular question before us, i.e., the significance of the judgment provision bifurcating for later resolution issues pertaining to a variety of assets.
True enough, some of the judgment paragraphs Jayne cites could be interpreted as containing reservations of jurisdiction just in case the parties were unable to implement agreed upon property divisions. For example, the parties, in paragraph 9, agreed that certain enumerated IRA’s were community property and would be divided equally. At the same time, the paragraph stated: “The Court reserves jurisdiction to make whatever orders are necessary to carry out these divisions.” Under In re Marriage of Schultz, supra, 105 Cal.App.3d 846, this reservation of jurisdiction would not preclude appellate review of the judgment.
However, paragraph 7 of the judgment presents different issues. That paragraph provides: “The Court reserves jurisdiction to divide [Steven’s] Teamsters Pension Plan via Q.D.R.O. and [Jayne’s] Hertz retirement plans via Q.D.R.O. in order to divide the community interest in any and all plans. The Court reserves jurisdiction to make whatever orders are necessary to carry out this division.” Here, unlike the language found in paragraph 9, there is no agreement as to the property characterization of the plans in question. It may be implied that there may be some community interest in the plans, but there is absolutely no indication that the parties have agreed upon the extent of any such community interest. There is no indication, for example, whether the parties have agreed that each plan was entirely community property as of the date of separation, or whether the parties have agreed that, as of the date of separation, they had certain premarital separate property interests in the respective plans, in specified percentages.
When paragraph 7, which is derived from the August 28, 2003 stipulation, is read in conjunction with paragraph 19, which is derived from a later, June 21, 2005 stipulation, it would appear that the retirement plan division was one of the items that was bifurcated for later resolution. Paragraph 19 specifies that the judgment “resolves all remaining issues between the parties . . . with the exception of . . . previously reserved issues (retirement, Qualified Domestic Relations Order . . .). All remaining issues are bifurcated and reserved.” Thus, retirement is specifically identified as an issue that was previously unresolved and that remains unresolved.
Maybe stating that “remaining issues [were] bifurcated” was a drafting error and indeed the parties did not mean it. Maybe they had agreed on the extent of any community or separate property interests in the retirement plans and just did not articulate their agreement. However, in order for this court to conclude that all we have here is a matter of continuing jurisdiction to resolve accounting issues, a la Schultz, and not a bifurcation of issues to which Family Code section 2025 applies, this court would have to declare the bifurcation language contained in the judgment to be mere surplusage and to rewrite the judgment to contain a stipulation it does not otherwise contain. This we cannot do.
We must point out that the burden is upon the parties preparing a formal judgment to present one that is clear and intelligible. In this case, the judgment presented is anything but. Here, internal inconsistencies and ambiguities contained in the formal judgment compel the dismissal of this appeal. To the extent the formal judgment was intended to say something other than what it did, the parties have only themselves to blame.
Jayne implores this court to review the trial court determinations of the date of separation and the characterization of the Cypress property before requiring the trial court to adjudicate the amount of the equalization payment with respect to the Cinco de Mayo property. However, she had a method available for obtaining our early review of those determinations; she just chose not to pursue it.
California Rules of Court, rule 5.175(c) specifically identifies the date of separation, and the characterization of assets as community or separate property, as issues that might be appropriate for bifurcation. Once bifurcated, Jayne could have sought a certificate of probable cause in order to pursue an appeal in this court. (Cal. Rules of Court, rule 5.180; In re Marriage of Lafkas, supra, 153 Cal.App.4th 1429.) She chose not to follow the procedures available to her.
At oral argument, the parties implied that in family law court matters are handled this way all the time and appeals of this nature are routinely taken without certificates of probable cause. However, the principles enunciated in In re Marriage of Lafkas, supra, 153 Cal.App.4th 1429 are not new. (See In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.) Counsel are urged to prepare formal orders and judgments in a clear and cogent fashion and, mindful of Family Code section 2025, seek certificates of probable cause when appropriate and desired for early review.
III
DISPOSITION
The appeals are dismissed for lack of jurisdiction, without prejudice to the parties filing new notices of appeal once an appealable judgment is obtained. (Cal. Rules of Court, rule 5.180(h).) If the parties choose to file new notices of appeal, they may designate their existing briefs, and the existing record, on file in this appeal, as the briefs and the record to be used in such subsequent appeal pertaining to the same issues, supplemented by additional briefing or records as necessary to demonstrate the existence of a final, appealable judgment. Each party shall bear his or her own costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.