In re Marriage of Lafkas

• Decision Date: 06 August 2007
• Docket Number: No. B189280.,B189280.
• Citation: 64 Cal.Rptr.3d 100,153 Cal.App.4th 1429
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF John and Jean LAFKAS. John Lafkas, Appellant, v. Jean Lafkas, Respondent.

64 Cal.Rptr.3d 100

153 Cal.App.4th 1429

In re MARRIAGE OF John and Jean LAFKAS John Lafkas, Appellant, v. Jean Lafkas, Respondent.

No. B189280.

Court of Appeal, Second District, Division 5.

August 6, 2007.

Law Office of Jeanne Collachia and Jeanne Collachia for Appellant.

Leslie Ellen Shear, Encino, for Respondent.

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 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 hot 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'n (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, 54 Cal. Rptr.3d 232; 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, 107 Cal.Rptr.2d 149, 23 P.3d 43.) In civil cases there normally can only be an appeal from a final judgment. (Vivid Video, supra, 147 Cal.App.4th at p. 441, 54 Cal.Rptr.3d 232.) 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, 107 Cal.Rptr.2d 149, 23 P.3d 43; Vivid Video, supra, 147 Cal.App.4th at p. 441, 54 Cal. Rptr.3d 232.) "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.)

We thus turn to the question of whether this family law appeal is within our jurisdiction. Disputes over the division of marital property may be litigated separately from the proceedings to dissolve the marriage. (In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735-737, 137 Cal.Rptr. 568.) An interlocutory judgment dissolving a marriage, and collateral issues decided with finality that are embodied in the judgment of dissolution, are appealable. (Ibid.) The appeal in this case was not taken from the judgment dissolving the marriage.

A family law court may bifurcate trial on one or more issues, including division of property or child custody, if resolution of the bifurcated issue is likely to simplify the determination of the other issues. (Cal. Rules of Court, rules 5.175(a), 5.175(c).)² Although an order on a bifurcated issue is not separately appealable,³ the family law court may certify in its order that there is probable cause for immediate appellate review of the issue, or it may do so in response to a party's motion made 10 days after mailing of the decision. (Rule 5.180(b); see Fam.Code, § 2025.)⁴ "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 5.180(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).)

A certificate of probable cause was required by husband in this case to invoke the appellate jurisdiction of this court. Although the order on the bifurcated trial resolved some of the issues concerning Smile Enterprises, it did not resolve all of them, and issues concerning other property were still pending.⁵ For example, issues regarding the retirement plans, deferred compensation, and a house on Callita remain unresolved. Moreover, the order on the bifurcated issue did not fix the value of the profits and rental income from Smile Enterprises that the trial court ordered divided, an issue husband indicates could be "especially contentious." Thus, the order appealed from is merely preliminary to a final order characterizing, valuing, and dividing all the marital assets. Husband 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 law court. Accordingly, we have no jurisdiction to hear the appeal.

Acknowledging his failure to obtain the required certificate of probable cause or file a motion before this court to allow an appeal, husband urges us to construe the family court's granting of wife's application for attorney fees to retain appellate counsel as a de facto certificate of probable cause. We reject the argument, because there is no provision in the Family Code or the rules for a de facto certificate of probable cause. Simply stated, the family law court has not made a finding that immediate appellate review is desirable. (See Rules 5.180(b), 180(c).) We also reject husband's argument that the parties in effect agreed to an immediate appeal, because appellate jurisdiction cannot be conferred by waiver, estoppel, or consent. Husband further argues an immediate...