Lafkas v. Lafkas

Opinion

KRIEGLER, J. The family law court bifurcated issues involving division of disputed assets between husband and wife. Following the bifurcated trial, the trial court entered its ruling, generally resolving issues in favor of the wife. Husband filed a notice of appeal from the order on the bifurcated issue, without obtaining a certificate of probable cause from the trial court and without moving in this court to appeal on a bifurcated issue. We lack jurisdiction to consider this appeal in the absence of a certificate of probable cause and an order from this court allowing the appeal on the bifurcated issue. Accordingly, the appeal is dismissed.

Husband John Lafkas and wife Jean Lafkas separated in 1996 after six years of marriage. Marital status was terminated in 2001, although the [1432]division of assets remained to be resolved. In 2003, the family law court bifurcated trial on one of the extant property issues—whether husband’s interest in Smile Enterprises, a partnership established in 1971 by husband and two partners, was husband’s separate property. In a 2005 order entitled “Further Judgment On Bifurcated Issue Of Characterization Of The Parties’ Interest In Smile Enterprises,” the family law court ruled that a new partnership agreement in Smile Enterprises, effective June 12, 1995, resulted in the creation of a community asset. As a result, one-third of any acquisitions and appreciation after June 12, 1995, were to be equally divided between husband and wife. Husband and wife were each entitled to one-half of one-third of the total profits of the Harvill properties (which were sold during the pendency of proceedings), and any other property purchased on and after June 12, 1995, including any sale proceeds and rental income.

Husband filed a notice of appeal from the 2005 order. He contends the trial court erred in ruling his interest in Smile Enterprises became community property on June 12, 1995.

The appeal must be dismissed for lack of jurisdiction. Appellate jurisdiction does not lie in this case, because the order on the bifurcated issue is not an appealable judgment or order, and no certificate of probable cause was obtained from the trial court pursuant to Family Code section 2025.1

“ ‘There is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control.’ ” (Anchor Marine Repair Co. v. Magnan (2001) 93 Cal.App.4th 525, 528 [113 Cal.Rptr.2d 284]; see also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [107 Cal.Rptr.2d 149, 23 P.3d 43] (Griset) [“A trial court’s order is appealable when it is made so by statute”]; Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 440 [54 Cal.Rptr.3d 232] (Vivid Video).) Appellate jurisdiction cannot be created by consent, waiver, or estoppel. (Vivid Video, at pp. 440-441; Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79, 81, fn. 1 [70 Cal.Rptr.2d 82].) “A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset, supra, 25 Cal.4th at p. 696.) In civil cases there normally can only be an appeal from a final judgment. (Vivid Video, supra, 147 Cal.App.4th at p. 441.) If there are unresolved causes of action between the parties, the judgment is not final and an appeal therefrom must be dismissed. (Griset, supra, 25 Cal.4th at p. 697; Vivid Video, supra, 147 Cal.App.4th at p. 441.) “Whenever there is doubt as to whether we have jurisdiction to hear an appeal, we must raise that issue on our own initiative.” (In re Perris City News (2002) 96 Cal.App.4th 1194, 1197 [118 Cal.Rptr.2d 38].)