Marriage of Fields

Filed 5/24/07 Marriage of Fields CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

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Melody L. Fields appeals pro se from the January 4, 2006 postjudgment order rejecting her claim that certain proceeds from the sale of a business she once owned jointly with her former husband, James E. Fields, constituted an omitted community asset subject to postjudgment division.^[1] (Fam. Code,  2556.)

We shall affirm the postjudgment order.

FACTUAL BACKGROUND

Melody and James married in 1985. They have two daughters. James filed a petition for dissolution in 1999; after some reconciliation attempts, the parties ultimately separated in 2002.

From the limited record on appeal, we discern that from 2002 to 2004, pending disposition of the dissolution action, the parties entered into various agreements regarding parenting and child support, the payment of mortgages on two residences, and the terms for the sale of a store to a third party. Periodically, they returned to court seeking enforcement and/or modification of those agreements.

In November 2004, James requested the court to enter Melodys default on the ground she never filed a response to the petition or amended petition for dissolution, and moved for entry of default judgment resolving the parties respective property rights and support obligations. His request was granted and judgment was entered on November 4, 2004. Among other things, the judgment awarded to Melody [o]ne-half of the remaining proceeds from the sale of the parties store in Pilot Hill, being paid by way of a compromised pay-off amount of $85,000, after the deductions from her half of this amount the child support arrears owed to [James] and other set-offs.

Melody moved the following month to set aside the November 2004 default judgment and to set the issues related to property division, award of assets, child custody and support for trial (Code Civ. Proc.,  473).^[2] In support of her motion, Melody averred, I believe that my Response which was filed when I was with [my prior attorney] was purposefully removed from the court file and stated, [t]he court knows that I have actively participated in this case, including settlements and other court hearings. I am a willing participant and with a[n] issue of a default judgment that was entered against [me] that his [sic] wholly unfair and one-sided flies in the face of equity and fair play. The matter was set for hearing on January 13, 2005, but was dropped from the courts calendar when the parties made no appearance.

A week later Melody renewed her motion to set aside the default judgment, and it was thereafter denied without prejudice because she failed to file with her motion a proposed response to the dissolution petition ( 473, subd. (b)).

Melody apparently filed a third motion to set aside the November 2004 judgment;^[3]it was ultimately heard on June 21, 2005. She was sworn and testified, as did both counsel. Thereafter, the court denied her motion, finding no credible evidence to support Melodys contention that a former attorney had in fact filed a responsive pleading on her behalf; and finding her explanation that she believed her former attorney(s) had filed the pleading failed to constitute reasonable mistake, inadvertence, surprise or excusable neglect.^[4] The court also found Melody had unreasonably delayed in challenging the November 2004 default judgment.^[5]

Thereafter, Melody filed a motion seeking to modify the judgment so as to divide certain proceeds from the sale of the store formerly owned by the parties, which she claimed constituted an omitted community asset subject to postjudgment division.^[6] (Fam. Code,  2556.) Melody represented herself at the hearing on her motion, held on October 11, 2005. She chiefly asserted James used monies from the sale of the store to reduce the mortgage on the house he received in the judgment and to pay other noncommunity expenses, and argued those sums constituted an omitted asset. Melody, James and the purchaser of the store once owned by the parties each testified, and documents were produced at the hearing from the escrow into which sale proceeds were deposited.

In its January 4, 2006 postjudgment order on the issue of omitted assets, the court found Melody failed to establish that any assets or debts from the marriage were not addressed by the November 2004 judgment, and specifically found that any payments, debts or receipts connected with the former family residence . . . or the store in Pilot Hill sold by the parties have already been resolved under the Judgment.

DISCUSSION

I

The notice of appeal Melody filed states she is appealing from the order entered October 11, 2005, i.e., the postjudgment order denying her effort to establish that omitted assets of the community estate remained to be divided. She did not appeal from the judgment or from the courts order denying her motion to set aside the judgment.

Appellate courts have no discretion to review an appealable judgment or order from which a timely appeal was not taken. ( 906; In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219.) An order denying a section 473 motion is a separately appealable order. (E.g., Garcia v. City etc. of San Francisco (1967) 250 Cal.App.2d 767, 770.) An appealable judgment and/or postjudgment order must be expressly specified in either a single notice of appeal or multiple notices of appeal to be reviewable on appeal. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)

Even though she is representing herself on appeal, Melody is held to the same restrictive procedural rules as an attorney. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)

Accordingly, our review is limited to the postjudgment order denying Melodys attempt to establish the existence of omitted community assets. We may not, and thus do not, address any of the arguments contained in her brief that purport to seek relief directly from the judgment or from the courts denial of her motion to set aside the judgment.

II

Family Code section 2556 gives the court in a dissolution proceeding continuing jurisdiction to award community assets or community liabilities to the parties not previously adjudicated by a judgment in the proceeding. Section 2556 applies whether or not the court has reserved jurisdiction, and applies even if the item was mentioned in the pleadings or the judgment, so long as it was not divided or otherwise dealt with by the judgment. (2 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2006)  8:1520, 8:1521, pp. 8:365, 8:366, citing Brunson v. Brunson (1985) 168 Cal.App.3d 786, 787-788; Bowman v. Bowman (1985) 171 Cal.App.3d 148, 156-157; Miller v. Miller (1981) 117 Cal.App.3d 366, 369-371.) Section 2556 relief is available even though the moving party knew about the asset at the time of the dissolution proceeding. The prior judgment cannot extinguish the parties rights to assets that were not before the court. (2 Hogoboom, supra,  8:1522, p. 8:366.2, citing Huddleson v. Huddleson (1986) 187 Cal.App.3d 1564, 1569.)

Melody contends on appeal the court erred in not considering [her] motion for omitted assets and denied her in providing evidence. She further asserts she filed a motion with the court indicating that the judgment filed omitted certain assets, debts, etc., that had not [been] disposed [of] in the judgment. These include[] the proceeds from the income of the store, a disparity in the monies received from the [purchasers] in the sale of the store, the inventory money, and evidence that [James] negotiated [a] refund check from the State Board of Equalization.

On appeal, the appellant has the burden of demonstrating by an adequate record that there is prejudicial error in the trial courts ruling. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (lead opn. of Grodin, J.).) We never presume the existence of error; in fact, we are required by the rules of appellate review to presume that the trial courts ruling was correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88.)

We apply the same standards to this appeal as if Melody were not representing herself on appeal in propria persona: A party representing herself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)

Unfortunately, we cannot evaluate Melodys claim of error based on the record she has provided us: Melody has not included in the record on appeal the motion she believes contained information or evidence indicating that the judgment omitted certain community assets and debts. Nor has she explained how the trial courts conclusion that the disposition of sale proceeds and other monies received in connection with the parties sale of the store was contemplated by the division of assets in the subsequent judgment‑‑which expressly provided for the division of the remaining proceeds from the sale of the parties store in Pilot Hill, being paid by way of a compromised pay off amount and the award of the former family home, with its existing $220,000 mortgage debt, to James‑‑is legally erroneous. As a result, she has forfeited any claim of error on this point. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

We reject Melodys contention that the court committed misconduct by not allowing [her] a proper trial and also not allowing her sufficient time to review subpoenaed documents. She contends on appeal the court recessed only 15 minutes for her to examine documents subpoenaed from the title company in connection with the store sale, but she made no complaint at the hearing that the recess was too short or that she needed more time, and by failing to object in the trial court, Melody has forfeited that claim of error on appeal.

Finally, we reject her claim that the court fail[ed] to properly review the evidence and made improper comments, including her assertion that its statements‑‑those issues are all ready [sic] handled in the judgment, [and] we are not going to discuss those issues‑‑were improper. The record reflects that the court received and considered the evidence presented and its comments merely reflect the courts legal rulings that the store proceeds were not omitted and therefore did not remain subject to division.

DISPOSITION

The postjudgment order is affirmed.

BUTZ , J.

We concur:

SIMS , Acting P. J.

CANTIL-SAKAUYE , J.

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^[1]As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

^[2] Undesignated statutory references are to the Code of Civil Procedure.

^[3] Melody did not request a copy of this motion to be included among the documents in the record on appeal.

^[4] No attorney declaration accompanied the motion. ( 473, subd. (b).)

^[5] Jamess attorney was directed to prepare an order, but Melody did not request a copy of that order to be included among the documents in the record on appeal.

^[6] Melody did not request a copy of this motion to be included among the documents in the record on appeal.