Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Kern County, No. FL596938, John L. Fielder, Judge.
Law Office of Edward J. Quirk, Jr. and Edward J. Quirk, Jr., for Plaintiff and Respondent.
Ira L. Stoker, for Defendant and Appellant.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
The family court bifurcated the validity of a disputed transfer of real property between Manuel and Dorra Gonsalez from the remaining issues in the dissolution of their marriage proceedings. Following a decision in the bifurcated trial favoring Dorra, Manuel filed a notice of appeal from the order without obtaining a certificate of probable cause from the issuing court. Lacking jurisdiction to review the matter, we must grant Dorra’s motion to dismiss the appeal.
BACKGROUND
Dorra and Manuel were married in June 1982. During the marriage, the couple accumulated several pieces of real property. In September 2005, Manuel signed over the properties to Dorra by quitclaim deeds shortly before the couple separated. In February 2006, Dorra filed for dissolution of marriage and in May 2006, the trial court entered a default judgment against Manuel.
In October 2006, Manuel filed a petition requesting relief from default on the grounds that Dorra had misled him and that he was unaware of the proceedings due to his limited education and English skills. Following a hearing in December 2006, the court set aside the default judgment as to property and support only, declaring “there is no set aside as to status, custody, or visitation, those issues are to remain in force.”
In November 2007, Manuel moved to set aside the September 2005 transfer deeds and to hold the properties as tenants in common pending resolution of the dissolution proceedings and final division of the community assets. After several hearings, the trial court denied the motion in a July 1, 2008, minute order, after finding Manuel fully informed and aware of the nature of the transfer and that he did so in exchange for Dorra’s agreement not to seek spousal and child support. On October 7, 2008, after a mandatory settlement conference, the trial court’s formal findings and order not to set aside the transfer deeds was filed.
On December 2, 2008, Manuel filed a notice of appeal specifically referring to California Rules of Court, rule 5.180(b)(1)-(2). On March 6, 2009, Dorra filed the present motion to dismiss the appeal as improperly taken from an order on a bifurcated issue without a certificate of probable cause. The dissolution action has not been set for trial, pending resolution of the current appeal.
Further rule references are to the California Rules of Court.
DISCUSSION
“‘“There is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control.”’” (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1432, (Lafkas).) “In civil cases there normally can only be an appeal from a final judgment.” (Ibid.) “If there are unresolved causes of action between the parties, the judgment is not final and an appeal therefrom must be dismissed.” (Ibid.)
“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 simply the determination of other issues.” (Lafkas, supra, 153 Cal.App.4th at p. 1433, citing rule 5.175.) In a marital dissolution proceeding, an appeal is premature if property division or other issues remain to be decided. (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.) Related to dissolution of marriage proceedings, Family Code section 2025 provides that the court that decided a bifurcated issue must issue a certificate of probable cause before this court may review an interim decision:
“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.” (Italics added.)
The Judicial Council has promulgated rules in accordance with Family Code section 2025, which Manual listed as grounds for filing his notice of appeal. Rule 5.180(b)(1)-(2) establishes that to appeal a bifurcated family court matter, the issuing trial court may either certify that probable cause exists for immediate appellate review in the order itself or upon a request by a party within 10 days of court’s mailing of the order. No certificate of probable cause is required in “appeals from the court’s termination of marital status as a separate issue, or to appeals from other orders that are separately appealable.” (Rule 5.180(a).)
Rule 5.180 provides in relevant part:
Relying on In re Marriage of Fink (1976) 54 Cal.App.3d 357 (Fink), Manuel contends that notwithstanding the generally applicable rule that a judgment is final and appealable when it effectively terminates the litigation between the parties, “bifurcated judgments are also separately and immediately appealable.” Manuel apparently reaches this conclusion because Fink held that “a separate interlocutory judgment of dissolution before other issues have been litigated” is directly appealable. (Id at p. 366.) Fink, however, exemplifies the exception to obtaining a certificate of probable cause noted in rule 5.180(a). Here, the trial court did not issue an interlocutory decision as to the dissolution itself, but instead issued a collateral finding related to a financial aspect of the dissolution. Fink specifically left unanswered the question whether other bifurcated issues are be immediately appealable, noting “We need not and do not decide here whether a trial court might properly, under the Family Law Act and the rules, enter more than one other ‘final’ and appealable judgment disposing of the other issues piecemeal.” (Fink, supra, at p. 366.)
Manuel also cites rule 5.180(h) as grounds to immediately review the trial court’s decision. Rule 5.180(h) establishes that the failure to obtain a certificate of probable cause will not preclude “review of the decision on the bifurcated issue upon appeal of the final judgment.” This rule, however, contemplates first a “final judgment,” and only provides that the interim bifurcated ruling is not precluded from review at the time of appeal. In other words, obtaining a certificate of probable cause is not a prerequisite to later raising the issue on appeal.
Rule 5.180(h) provides: “None of the following precludes review of the decision on the bifurcated issue upon appeal of the final judgment: [¶] (1) A party’s failure to move for certification under (b) for immediate appeal; [¶] (2) The trial court's denial of a certification motion under (b) for immediate appeal; [¶] (3) A party’s failure to move to appeal under (d); and [¶] (4) The Court of Appeals denial of a motion to appeal under (d).”
Even if this court has authority to review the appeal as an extraordinary writ, Manuel has not provided any basis to find that review of the interlocutory order is necessary before a final conclusion in the dissolution proceedings. Moreover, as the issues of child custody and visitation remain in dispute, financial aspects of the dissolution may be affected. Manuel has an adequate appellate remedy by an appeal from the final judgment, and we can find no compelling reason to grant immediate appellate review.
DISPOSITION
Dorra Gonsalez’s March 6, 2009, motion to dismiss the appeal is granted. The issues raised herein can be resolved, if necessary, following the entry of final judgment.
“(b) Certificate of probable cause for appeal
“(1) The order deciding the bifurcated issue may include an order certifying that there is probable cause for immediate appellate review of the issue.
“(2) If it was not in the order, within 10 days after the clerk mails the order deciding the bifurcated issue, a party may notice a motion asking the court to certify that there is probable cause for immediate appellate review of the order. The motion must be heard within 30 days after the order deciding the bifurcated issue is mailed.”