In re Marriage of LaMoure CA4/2 (2015) · DecisionDepot
In re Marriage of LaMoure CA4/2
California Court of Appeal Sep 9, 2015 No. E058817Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.,
Respondent;
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
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.
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(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
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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
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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.
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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
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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
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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
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the January 9, 2013 order for the sale of real property was a nonappealable interlocutory order because there was no final judgment of dissolution, no bifurcation order, and no certificate of probable cause. Consequently, the court dismissed the appeal and declined to treat it as a petition for an extraordinary writ.
Issues
Whether the January 9, 2013 order for the sale of real property is an appealable judgment.
Whether the appellate court should treat the nonappealable appeal as a petition for an extraordinary writ.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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.”
“An appellate court lacks jurisdiction to entertain an appeal from a nonappealable judgment or order.”
“[A]ppellate jurisdiction is wholly statutory, and husband has not complied with the rules necessary to invoke appellate jurisdiction over an interlocutory order.”