Opinion
D075177
05-15-2020
In re the Marriage of LISA B. and JEREMIAH J. SULLIVAN III. LISA B. SULLIVAN, Respondent, v. JEREMIAH J. SULLIVAN III, Appellant.
Annis & Vercollone, James R. Vercollone; Krueger LLP and Blair Krueger for Appellant. Higgs Fletcher & Mack, John Morris and Rachel E. Moffitt for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D560631) APPEAL from an order of the Superior Court of San Diego County, Enrique E. Camarena, Judge. Dismissed. Annis & Vercollone, James R. Vercollone; Krueger LLP and Blair Krueger for Appellant. Higgs Fletcher & Mack, John Morris and Rachel E. Moffitt for Respondent.
Jeremiah Sullivan III (Husband) appeals the family court's interlocutory order determining the court lacked jurisdiction under the Federal Uniformed Services Former Spouses' Protection Act ((FUSFSPA), 10 U.S.C. § 1408) to divide the vested military retirement benefits (pension) of Lisa Sullivan (Wife). Because the appeal is not taken from a final judgment or appealable collateral order, and because no unusual circumstances warrant treating the appeal as a petition for writ relief, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Husband and Wife met in 1994 while both were training in Rhode Island to serve as lawyers in the U.S. Navy. Wife remained on active duty, while Husband transitioned to the reserves in 1999 and established a solo law practice. Husband and Wife married in 2000, and moved to San Diego in 2002 when Wife became stationed there. The couple had children in 2004 and 2006.
The couple separated in 2015, and Wife filed a petition for dissolution in 2016. By then, Wife had accumulated sufficient service years in the Navy to vest in her pension, but she was not drawing on it because she had not yet retired.
Wife's petition did not expressly mention her pension, but the topic arose during informal settlement discussions, a mediation, and in Wife's subsequent request for an order (RFO) appointing various independent experts. The case did not settle, but the parties eventually stipulated to the appointment of experts.
An RFO is the family court equivalent of a noticed motion in civil litigation. (Cal. Rules of Court, rule 5.92(a)(1)(A).)
The issue of Wife's pension came to a head when Husband notified Wife he intended to exercise his rights under In re Marriage of Gillmore (1981) 29 Cal.3d 418 (Gillmore) to immediately receive his share of the community's interest in her pension. When Wife rejected Husband's Gillmore election, he filed an RFO seeking the immediate division of her pension.
Under Gillmore, "a nonemployee spouse may be entitled to begin receiving his or her community interest in an employee spouse's retirement benefits prior to the employee spouse's actual retirement." (In re Marriage of Oddino (1997) 16 Cal.4th 67, 82.)
Wife opposed Husband's RFO and filed one of her own seeking leave to amend her petition to expressly object to the family court's jurisdiction over her pension. Wife argued that under the FUSFSPA, a state court has jurisdiction over a servicemember's federal pension only if the court has jurisdiction over the servicemember by virtue of his or her "(a) residence other than by military assignment; (b) domicile; or (c) consent." (In re Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1167.) Wife supported her filings with declarations explaining she (1) resided in California only by military assignment, (2) was domiciled in her home state of New Jersey, and (3) did not consent to the family court's jurisdiction over her pension.
Husband countered that Wife had consented to jurisdiction over her pension by filing her petition in California, requesting the appointment of an expert to determine separate and community property interests in her retirement benefits, and by discussing those benefits during settlement negotiations. He maintained that Wife's "attempt[] to withdraw her consent to jurisdiction two years into costly litigation is frivolous and prejudicial to [him]."
On the date originally set to hear the competing RFO's, the court entered a judgment of dissolution and continued the hearing on the contested matters.
On September 12, 2018, the family court heard argument on the jurisdictional issue and other issues involving support, custody, and visitation. Following our court's holding in In re Marriage of Tucker (1991) 226 Cal.App.3d 1249 that "a member of the military . . . may both agree California has jurisdiction over nonpension issues and at the same time argue California has no power to divide his or her military pension" (id. at p. 1256), the family court construed the FUSFSPA as conferring state court jurisdiction over federal pensions only when a servicemember affirmatively gives "explicit consent" to such jurisdiction. Applying this standard, the family court found it lacked jurisdiction over Wife's pension.
Only the jurisdictional issue is relevant to this appeal.
Based on its jurisdictional finding, the family court denied Husband's RFO seeking to exercise his right under Gillmore. The court issued a statement of decision addressing the jurisdictional and custody/visitation issues.
On November 9, 2018, Husband filed a notice of appeal from the court's September 12, 2018 order. The family court had not yet entered a final judgment resolving support and property division issues.
DISCUSSION
Husband contends the family court erroneously determined it lacked jurisdiction under the FUSFSPA to divide Wife's pension. Wife countered in her respondent's brief that this appeal should be dismissed as having been taken from a nonappealable order. Husband did not address appealability in his reply brief, so we directed him to do so in a supplemental letter brief.
Husband now acknowledges the order is not an appealable final judgment or order, but maintains it falls within the exception for appealable collateral orders. Alternatively, he asks that we exercise our discretion to treat the premature appeal as a petition for an extraordinary writ. As we will explain, we conclude the jurisdictional order is not an appealable collateral order, and no unusual circumstances warrant our treating the premature appeal as a petition for writ relief. Accordingly, we dismiss the appeal.
An appellate court has jurisdiction over a direct appeal only when there is an appealable order or judgment. (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 765-766; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) " ' "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); see Griset, at p. 696.)
" 'California is governed by the "one final judgment" rule which provides "interlocutory or interim orders are not appealable, but are only 'reviewable on appeal' from the final judgment." [Citation.] The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process.' [Citation.] An 'exception to the "one final judgment" rule . . . is the so-called collateral order doctrine.' " (In re Marriage of Grimes and Mou (2020) 45 Cal.App.5th 406, 418 (Grimes).)
" 'Where the trial court's ruling on a collateral issue "is substantially the same as a final judgment in an independent proceeding" [citation], in that it leaves the court no further action to take on "a matter which . . . is severable from the general subject of the litigation" [citation], an appeal will lie from that collateral order even though other matters in the case remain to be determined.' " (Grimes, supra, 45 Cal.App.5th at p. 418.) In addition, "[o]ver 50 years ago, our Supreme Court stated [that] the minimum conditions for the appealability of a collateral order" include that the order " 'must direct the payment of money by [the] appellant or the performance of an act by or against him.' " (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561, quoting Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 (Sjoberg).)
We acknowledge a minority view that does not require the payment of money or performance of an act before a party can appeal an order under the collateral order doctrine. (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 2:79, pp. 2-55 to 2-57.) However, our Supreme Court stated clearly in Sjoberg: "It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him." (Sjoberg, supra, 33 Cal.2d at p. 119.) --------
Applying these principles, we conclude the family court's jurisdictional order does not fall within the collateral order doctrine. First, the ruling does not pertain to a truly collateral issue. To the contrary, whether the family court had jurisdiction over Wife's pension—likely a sizeable community asset—is central to the court's ultimate division of community assets. And although the court's conclusion that it lacked jurisdiction temporarily removed that particular issue from contention, it did not remove the issue's centrality to the overall property-division proceeding.
Second, the court's jurisdictional order is not an appealable collateral order because it does not "direct the payment of money . . . or the performance of an act." (Sjoberg, supra, 33 Cal.2d at p. 119; see Pacific Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 306 [order denying attorney fees not an appealable collateral order because it "did not direct the payment of money or the performance of an act"].)
Anticipating that we might find the order nonappealable, Husband relies heavily on Grimes, supra, 45 Cal.App.5th 406 to support the proposition that, "as an exercise of our discretion, we may treat a premature appeal as a petition for an extraordinary writ." (Grimes, at p. 419.) Grimes does not aid Husband.
First, Grimes is procedurally inapposite because the appellate court actually declined to treat a premature appeal as a petition for an extraordinary writ. (Grimes, supra, 45 Cal.App.5th at p. 419.) The court ultimately reached the merits of the appeal only because the trial court had subsequently entered a final judgment and the appellate court deemed the appeal as having been prematurely taken from that final judgment. (Id. at p. 420, citing Cal. Rules of Court, rule 8.104(d)(2) ["The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment."].) Husband acknowledges in his supplemental brief that the litigation is ongoing and the family court has not entered a final judgment.
Second, "[a]lthough an appellate court has discretion to treat an imperfect appeal as a petition for writ of mandate, the power should be exercised only in unusual circumstances." (Lafkas, supra, 153 Cal.App.4th at p. 1434; see MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 265 [discretion should be exercised "only under limited, extraordinary, circumstances"].) Husband has cited no unusual or extraordinary circumstances warranting our exercise of discretion. To the contrary, his invocation of the policy favoring disposition of appeals on their merits and his desire that he "not have to wait until final judgment" are quintessentially ordinary and usual circumstances.
Finally, writ relief is appropriate only when there is no adequate remedy at law. (Lafkas, supra, 153 Cal.App.4th at p. 1434.) "There is a special procedure in family law cases allowing an interlocutory appeal on a bifurcated issue" if the family court certifies the issue for interlocutory appeal. (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403, citing Fam. Code, § 2025.) Despite Wife addressing the potential availability of this procedure in her respondent's brief, Husband did not address in his supplemental letter brief why he did not avail himself of this remedy at law in the family court.
In sum, the family court's jurisdictional order is not an appealable collateral order, and no unusual circumstances warrant our treatment of Husband's premature appeal as a petition for writ relief.
DISPOSITION
The appeal is dismissed. Wife is entitled to her costs on appeal.
HALLER, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.