In re Estate of Miramontes-Najera

• Decision Date: 13 May 2004
• Docket Number: No. D042212.,D042212.
• Citation: In re Estate of Miramontes-Najera, 13 Cal.Rptr.3d 240, 118 Cal.App.4th 750 (Cal. App. 2004)
• Court: California Court of Appeals
• Parties: ESTATE OF Raul MIRAMONTES-NAJERA, Deceased. Evangelina B. Miramontes, Petitioner and Appellant, v. Silvia Lizarraga Preciado, et al., Objectors and Respondents.

13 Cal.Rptr.3d 240

118 Cal.App.4th 750

ESTATE OF Raul MIRAMONTES-NAJERA, DeceasedEvangelina B. Miramontes, Petitioner and Appellant, v.Silvia Lizarraga Preciado, et al., Objectors and Respondents.

No. D042212.

Court of Appeal, Fourth District, Division 1.

May 13, 2004.

Luce, Forward, Hamilton & Scripps, Charles A. Bird, Mary F. Gillick and Jennifer M. McGibbons, San Diego, for Petitioner and Appellant.

Paluso & Sceper and Duane H. Sceper, San Diego, for Objectors and Respondents.

McCONNELL, P.J.

In Estate of Wilson(1986)183 Cal.App.3d 67, 68-69, 227 Cal.Rptr. 794, the court held that a surviving spouse who did not consent to transfers of community property into bank accounts for third persons may enforce his or her community property interest on an asset-by-asset basis, even though he or she is already receiving more than one-half of the total community property.In this case, we hold as a matter of first impression that in enacting Probate Code¹ section 5021, the Legislature intended to codify, rather than nullify, the Estate of Wilson rule.Accordingly, we reverse orders denying Evangelina B. Miramontes' (Evangelina)²petition under section 5021 to set aside the transfers of her community property interest in certain pay-on-death accounts, and remand the matter to the trial court with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Evangelina and Raul Miramontes-Najera(Raul) married in Mexico in 1956.According to Evangelina's petition, they"entered into an express community property marriage."They were married until Raul's death in October 2000 in San Diego, California.

Beginning in June 1998, without Evangelina's consent, Raul transferred a total of $802,996 in community property funds into nine bank accounts payable on death to persons other than Evangelina.He transferred $100,000 into each of two money market accounts payable to, respectively, the minor children of Silvia Lizarraga Preciado(Silvia), Silvia Miramontes Lizarraga(young Silvia) and Adolfo Miramontes Lizarraga(Adolfo), and transferred $3,000 into a deposit certificate payable to young Silvia.³In addition, Raul created six other accounts payable to third persons not involved in this appeal, consisting of $100,000 deposited in a money market account and $499,996 placed in five certificate of deposit accounts.

Raul had arranged to transfer all the community property by multiple nontestamentary means.Evangelina received community property having a total value of approximately $1.3 million, more than one-half of the value of the community property estate.

Evangelina petitioned the court under section 5021 for an order setting aside the transfer of one-half of the funds in each of the pay-on-death accounts.Citing Estate of Wilson, supra,183 Cal.App.3d 67, 227 Cal.Rptr. 794, she argued section 5021 requires the court to set aside her community interest separately as to each account, regardless of any other community property she received outside probate.The Lizarragas opposed the petition on the ground Evangelina had already received nonprobate transfers of community property exceeding her one-half interest in the community estate.They argued that in enacting section 5021, the Legislature intended to abrogate the holding in Estate of Wilson.

The court issued a letter ruling denying the petition "insofar as a blanket set aside of the ... non-consensual transfers is concerned."The court determined section 5021"empowers [it] to impose such terms, conditions and remedies as appear equitable under the circumstances of this case, and [it] will hear evidence and will exercise its equitable powers to make such an order that insures that each party — Petitioner and the decedent, have or have the right to dispose of one-half of their community property."The court also ruled that "[t]o the extent the evidence shows that Petitioner has received half or more of the community property she owned with decedent, none of the non-consensual transfers will be set aside."

After the interim order was issued, Evangelina conceded she received assets exceeding one-half of the community estate, including houses in California and Mexico, a condominium in Florida and "one of the California POD [pay-on-death] accounts."Accordingly, no evidentiary hearing was held.The court issued an order adopting and making final its previous findings and denying the petition as to all pay-on-death accounts.

DISCUSSION

I.Request for Dismissal

Preliminarily, we dispose of the Lizarragas' contention the orders under section 5021 are not appealable under the Probate Code, and because they did not file a timely petition for writ relief we should dismiss the appeal.

"`[A]ppeals [that] may be taken from orders in probate proceedings are set forth in ... the Probate Code, and its provisions are exclusive.'(Citation.)`There is no right to appeal from any orders in probate except those specified in the Probate Code.'(Citation.)`Appeals in general probate ... matters are limited.'(Citation.)`[I]f there [were] a free appeal in every probate matter, estates could be unreasonably delayed.'"(Estate of Stoddart(2004)115 Cal.App.4th 1118, 1125-1126, 9 Cal.Rptr.3d 770.)

The Probate Code does not specifically list as appealable orders denying petitions to set aside nonconsensual nonprobate transfers of community property.However, it is well established that a probate order's appealability is determined not from its form, but from its legal effect.(Estate of West(1912)162 Cal. 352, 354, 122 P. 953;Estate of Estrem(1940)16 Cal.2d 563, 566, 107 P.2d 36;Estate of Warner(1958)162 Cal.App.2d 799, 803, 329 P.2d 79;Estate of Hart(1953)119 Cal.App.2d 310, 312, 259 P.2d 703;Estate of Friedman(1979)100 Cal.App.3d 810, 813-814, fn. 2, 161 Cal.Rptr. 311;Estate of Effron(1981)117 Cal.App.3d 915, 921, fn. 3, 173 Cal.Rptr. 93;Estate of Richter(1993)12 Cal.App.4th 1361, 1366, 16 Cal.Rptr.2d 108;Estate of Martin(1999)72 Cal.App.4th 1438, 1442, 86 Cal.Rptr.2d 37.)An order is appealable, even if not mentioned in the Probate Code as appealable, if it has the same effect as an order the Probate Code expressly makes appealable.(Estate of Martin,at p. 1443, 86 Cal.Rptr.2d 37.)Section 1303, subdivision (f) makes appealable the grant of or refusal to grant an order "[d]etermining heirship, succession entitlement, or the persons to whom distribution should be made."The orders here determine the distribution of the pay-on-death accounts, and thus fall within the statutorily defined class of appealable orders.(Estate of Richter,at pp. 1365-1366, 16 Cal.Rptr.2d 108.)

The Lizarragas rely on Estate of Stoddart, supra,115 Cal.App.4th 1118, 9 Cal.Rptr.3d 770, in which this court held that orders denying motions for reconsideration of probate orders under sections 17000(to determine entitlement to distribution of estate) and 17200 (to ascertain trust beneficiaries) are not appealable orders.We stated that "[i]n the absence of specific statutory authority authorizing such appeals, ... the court's orders denying Wilson's motions for reconsideration are not appealable."(Stoddartat p. 1126, 9 Cal.Rptr.3d 770.)However, there the parties did not raise, and we did not address, the significant body of law, including this court's opinion in Estate of Effron, supra,117 Cal.App.3d at page 921, footnote 3, 173 Cal.Rptr. 93, holding that an order's legal effect, rather than its form, determines its appealability."`It is axiomatic that cases are not authority for propositions not considered.'"(In re Marriage of Cornejo(1996)13 Cal.4th 381, 388, 53 Cal.Rptr.2d 81, 916 P.2d 476.)

The Lizarragas correctly point out that under the "one final judgment" rule an appeal is available only from a final judgment (Code Civ. Proc., § 904.1, subd. (a)), and no final judgment was entered.However, we may consider orders a final judgment for purposes of appeal when as here, they have all the earmarks of a final judgment.Nothing remains for judicial consideration concerning the accounts, the orders are the only judicial rulings regarding the accounts, and there is no other avenue for appellate review.Under these circumstances, the orders are appealable as a final judgment.(Bank of California v. Thornton-Blue Pacific, Inc.(1997)53 Cal.App.4th 841, 845-846, 62 Cal.Rptr.2d 90;see alsoSjoberg v. Hastorf(1948)33 Cal.2d 116, 119, 199 P.2d 668["An appeal is allowed if the order is a final judgment against a party in a collateral proceeding growing out of the action."].)

The Lizarragas also contend we should dismiss the appeal because service of Evangelina's opening brief was defective.They assert the brief "was not served upon all parties, and in particular upon specifically interested and affected parties," and reversal of the order would materially affect the rights of parties who did not receive notice.The Lizarragas note that five of the beneficiaries of accounts that are subject to the final order, representing nearly $600,000 in interests, have not been served.However, nothing in the clerk's transcript indicates that anyone except Evangelina and the Lizarragas ever appeared below.Briefs must be served only on adverse parties who appeared separately.(SeeCal. Rules of Court, rule 105(e).)

We also reject the Lizarragas' contention we should dismiss the appeal because the record does not establish a material element of Evangelina's marital status and property rights.According to the Lizarragas, as evidence of her marital status Evangelina relied on lodged documents not a part of the record on appeal.However, the record is sufficient to permit us to evaluate the arguments presented and we therefore decline to dismiss the appeal on this ground.

II.Estate of Wilson and Section 5021

A

"Upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent."(§ 100, subd. (a).)Each spouse has...