Marriage of Uzumcu

Filed 1/16/08 Marriage of Uzumcu CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE COURT*:

It is ordered that the opinion filed herein on December 17, 2007, and not certified for publication, be modified as follows:

1. Insert the following on page 2 immediately before the heading FACTUAL AND PROCEDURAL SYNOPSIS

On October 31, 2005 husband filed a separate notice of appeal from the trial courts July 21, 2005 post-judgment order valuing the items of property awarded to wife and from the courts subsequent denial of his motion for reconsideration of that order.

2. On page 22, immediately before the heading DISPOSITION, insert the following:

Husbands separate appeal lacks merit

Procedural facts.

Following the trial courts entry of judgment awarding items to husband and wife, wife filed an application for an order to show cause seeking, in part, an evidentiary hearing to determine the value of the items of jewelry and other personal property awarded to her that husband had not transferred to her, which included the multiple-strand natural pearl necklace identified earlier in this opinion as item 15 in the list of jewelry awarded to wife (identified before the trial court as item number 25 on husbands exhibit 1018). Based on the testimony of wifes expert, at the July 11, 2005 hearing the court valued the necklace at $206,000 and all the jewelry at $2,513,000, and ruled that amount was to be deducted from husbands share of the proceeds of the sale of the parties residence. Husband did not present any expert valuation testimony at the hearing. (Husband did submit a declaration describing his unsuccessful attempts to obtain appraisals of the jewelry at issue.) Husband thereafter filed a motion for reconsideration, presenting what he described as new evidence concerning the valuation of the pearl necklace. The trial court denied that motion. Husband filed a separate appeal from these post-judgment orders, which was consolidated with wifes appeal from the original judgment.

Husbands contentions.

In its original judgment awarding the pearl necklace to wife, the trial court noted the parties dispute regarding its physical characteristics: Husband contends it is a five-strand necklace and wife contends it is a lengthy necklace, that she considered a two strand necklace, that can be worn as five strands. The judgment indicates that the trial court awarded the necklace to wife in the event that this necklace can be worn as a two strand pearl necklace. However, in the event that this necklace can only be worn as a five-strand pearl necklace, it shall be awarded and confirmed to [husband].

In addition to valuing the natural pearl necklace, wifes expert opined at the post-judgment valuation hearing that necklaces of that type could be worn in a number of configurations, not only as a five-strand necklace. The court appeared to accept husbands offer of proof that he would testify the item was a five-strand pearl necklace, but rejected his request to continue the hearing to allow him to obtain and present to the court a photograph of the necklace, finding husband had the power to bring the item itself or a photograph to court on the date set for the hearing. Accordingly, the court accepted wifes experts analysis, awarded the necklace to wife and valued it at $206,000 in accordance with her experts opinion.

In his motion for reconsideration, husband argued he was not given proper notice that the issue whether the pearl necklace had five-strands or two-strands would be adjudicated at the valuation hearing. His motion also attached an expert declaration supporting his position as to the physical characteristics of the piece. The court denied the motion, concluding it did not present the type of new or different facts required by section 1008.

Substantial evidence supports the trial courts valuation; the court did not abuse its discretion in denying reconsideration.

On appeal husband again asserts wife failed to provide proper notice she intended to present to the court the issue whether the pearl necklace had two strands, and therefore had been properly awarded to her in the judgment, or five strands, in which case she would not be entitled to either the necklace or to an offset for its value against the proceeds from the sale of the residence. This argument lacks merit. Wifes application for an order to show cause, which requested an evidentiary hearing for the court to determine the value of the jewelry awarded to her in the April 15, 2005 judgment expressly referred to 19 items of jewelry, which necessarily included the multiple-strand natural pearl necklace. Moreover, the declaration of her expert witness, submitted the week prior to the hearing, specifically identified the necklace, including the courts provisional award of it to wife, before giving a valuation opinion. Husband had sufficient notice the issue of wifes entitlement to an offset for the value of this jewelry was before the court.

The only valuation evidence before the court at the hearing itself was wifes expert, who opined the necklace had a current value of $206,000. The court was fully justified in accepting this opinion, and husband does not argue to the contrary (apart from the procedural objections he raises).

Finally, the court did not abuse its discretion in denying the motion for reconsideration. Section 1008, subdivision (a), requires a party moving for reconsideration to present new or different facts, circumstances of law. Although husband described the difficulties he apparently had in obtaining expert valuation evidence because the jewelry was located in Turkey, the court was not obligated to accept his conclusion the evidence filed with the motion for reconsideration could not reasonably have been brought before the court at the hearing on July 11, 2005. (See Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028 [moving partys burden to provide trial court with satisfactory explanation as to why he or she failed to produce evidence at an earlier time].)

3. On page 22 in the DISPOSITION, substitute for the first sentence, The judgment and post-judgment orders are affirmed.

The petitions for rehearing are denied. The foregoing does effect a change in the judgment.

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*PERLUSS, P.J. WOODS, J. ZELON, J.

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