Marriage of Vivian CA6

Filed 12/8/14 Marriage of Vivian CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re the Marriage of CHERYL and H040293 THOMAS VIVIAN. (San Benito County Super. Ct. No. FL1300018)

CHERYL E. VIVIAN,

Respondent,

v.

THOMAS J. VIVIAN,

Appellant.

I. INTRODUCTION Appellant Thomas J. Vivian and respondent Cheryl E. Vivian were married for more than 22 years.1 In 2013, Cheryl filed a petition for dissolution of marriage. At issue in the present appeal is the trial court’s order denying Thomas’s claim for reimbursement pursuant to Family Code section 2640. Thomas contends that the order should be reversed because the trial court erred in determining that he did not make contributions of separate property to the acquisition of the parties’ community property house.

1 For purposes of clarity and not of disrespect, we will refer to the parties by their first names. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

For the reasons stated below, we determine that the order is nonappealable. We will therefore dismiss the appeal without reaching the merits. II. FACTUAL AND PROCEDURAL BACKGROUND In January 2013, Cheryl filed a petition for dissolution of marriage. In May 2013, Thomas filed a request for an order determining that he was entitled to reimbursement for the more than $300,000 his parents had contributed to the acquisition of the community property house. Thomas claimed that the contribution was an advance on his inheritance from his parents and that it was therefore a contribution of his separate property. Thomas further contended that, because his separate property claim exceeded the equity in the house, he should be awarded the house. Cheryl filed a responsive declaration in which she “disagree[d] that the equity in the property [was] approximately equal to [Thomas’s] separate property contributions to acquire the property.” At a hearing on Thomas’s request, the trial court indicated that the reimbursement issue would be bifurcated from other issues and that the reimbursement issue would be set for trial. The parties subsequently filed briefs in which they disputed whether the amounts contributed by Thomas’s parents for the acquisition of the house constituted a separate property contribution by Thomas for which he was entitled to reimbursement. On August 30, 2013, an evidentiary hearing was held regarding Thomas’s claim. The minutes of the proceeding reflect that no court reporter was present. The minutes also reflect that Thomas, Cheryl, and Thomas’s parents testified; that several exhibits were admitted into evidence; that the court heard argument from counsel; and that the matter was taken under submission. The matter was continued to September 12, 2013. On September 12, 2013, the trial court orally announced its tentative decision to deny Thomas’s request. After hearing argument from counsel, the court indicated that its final decision was to deny Thomas’s request. The court further indicated that Cheryl was to prepare an order after hearing.