In re Marriage of Leuzinger, B207195 (Cal. App. 12/23/2009)

• Decision Date: 23 December 2009
• Docket Number: B207195
• Parties: In Re: Marriage of MARK and GAIL-STARK LEUZINGER. MARK A. LEUZINGER, Appellant, v. GAIL STARK-LEUZINGER, Respondent.
• Court: California Court of Appeals Court of Appeals

Page 1

In Re: Marriage of MARK and GAIL-STARK LEUZINGER MARK A. LEUZINGER, Appellant, v. GAIL STARK-LEUZINGER, Respondent.

B207195

Court of Appeals of California, Second Appellate District, Division Five

December 23, 2009

Appeal from a judgment of the Superior Court of Los Angeles County, No. KD056055, H. Don Christian, Commissioner. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Mark A. Leuzinger, in pro. per., for Appellant.

Heidi Romeo & Associates and Heidi H. Romeo for Respondent.

Not to be Published in the Official Reports

MOSK, J.

INTRODUCTION

Respondent and appellant Mark A. Leuzinger (Mark)¹ appeals a judgment on reserved issues entered by the trial court in marital dissolution proceedings between Mark and his former wife, Gail Stark-Leuzinger (Gail). On appeal, Mark argues that the trial court failed to divide the parties' community property furnishings and appliances, mischaracterized certain other assets and liabilities, and failed to divide the parties' community property estate equally, as required by Family Code section 2550.² We conclude that Mark's contention that the trial court failed to divide the furnishings and appliances has merit, but that Mark's remedy is a motion or order to show cause in the trial court pursuant to section 2556. Mark forfeited his other contentions by failing to follow the applicable rules of appellate procedure. Furthermore, even if we were to address those contentions, Mark has failed to demonstrate reversible error. We deny Gail's motion for sanctions.

BACKGROUND

Mark and Gail were married on August 25, 1996 and separated on August 16, 2002. There were no children of the marriage. Mark was a management, software and systems consultant who sometimes operated under the business name Mark Nine Systems, Inc. Gail was a schoolteacher. The marriage was dissolved by a judgment as to status only on March 19, 2004. Trial on the reserved issues was had on 19 days over a period of nearly two years, from December 2004 to October 2006. The trial court entered judgment on the reserved issues on January 24, 2008. Mark timely appealed.

DISCUSSION

A. General Principles and Standard of Review

Absent an agreement by the parties, section 2550 imposes on the trial court in martial dissolution proceedings a mandatory, nondelegable duty to value and divide equally the parties' community property estate.³ (See § 2550; In re Marriage of Cream (1993) 13 Cal.App.4th 81, 89; In re Marriage of Knickerbocker (1974) 43 Cal.App.3d 1039, 1044; see also In re Marriage of Walrath (1998) 17 Cal.4th 907, 924.) To do so, the trial court must first determine which property owned by the parties is part of the community property estate—that is, the trial court must "characterize" the property. "Characterization of property, for the purpose of community property law, refers to the process of classifying property as separate, community, or quasi-community. Characterization must take place in order to determine the rights and liabilities of the parties with respect to a particular asset or obligation and is an integral part of the division of property on marital dissolution." (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 291; see generally, Hogoboom, et al., California Practice Guide: Family Law (The Rutter Group 2009) ¶ 8:30, pp. 8-8 to 8-9 (rev. #1 2009) (Family Law).)

In general, a spouse maintains as his or her separate property all property acquired prior to marriage; property acquired during the marriage that can be traced to a separate property source; and property acquired during the marriage by gift, bequest, devise or descent. (§ 770, subd. (a); see In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 484.) Other property acquired by a married person during the marriage presumptively is community property. (§ 760; In re Marriage of Bonds (2000) 24 Cal.4th 1, 12; see generally Family Law, supra, ¶ 8:77, p. 8-19.) The party claiming that property acquired during the marriage is his or her separate property has the burden of overcoming this presumption by a preponderance of the evidence. (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1585, 1591.)

The trial court has broad discretion to determine the manner in which community property is divided, although absent an agreement, it must be divided equally. (§ 2550; In re Marriage of Brown (1976) 15 Cal.3d 838, 848, fn. 10.) Accordingly, we review the trial court's judgment dividing marital property for an abuse of discretion. (In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201 (Dellaria); In re Marriage of Quay (1993) 18 Cal.App.4th 961, 966.) We review the trial court's factual findings regarding the character and value of the parties' property under the substantial evidence standard. (Dellaria, supra, 172 Cal.App.4th at p. 201; In re Marriage of Ettefagh, supra, 150 Cal.App.4th at p. 1584.) The interpretation of a statute presents a question of law that we review de novo. (Dellaria, supra, 172 Cal.App.4th at p. 201; In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230.)

B. Furnishings and Appliances

Mark argues that the trial court failed to divide the parties' furnishings and appliances, in violation of section 2550.⁴ Although we agree that the trial court should have divided those assets, the error does not require reversal of the judgment now on appeal because Mark's remedy is provided by section 2556.

The division of the parties' community property furnishings and appliances was an issue before the trial court. It appears that, at some point prior to trial, the trial court instructed the parties not to present evidence regarding that issue. During trial, on January 25, 2005, the trial court told the parties that, if the parties were unable to reach agreement on dividing the furnishings and appliances, the trial court would refer that issue to a private dispute resolution center where the parties could "sit down with an attorney" and "go through that process." On September 29, 2005, the trial court entered a minute order referring the parties to Claremont Resolution Center to mediate the issue. The trial court orally reiterated that order on October 10, 2006. There is no indication in the record that a mediation occurred, or if it occurred, that it resolved the issues relating to the furnishings and appliances.⁵ Neither the trial court's statement of decision nor the judgment purports to characterize, value or divide the furnishings and appliances. Mark objected to the trial court's failure to divide the furnishings and appliances prior to entry of judgment in his memorandum of points and authorities in opposition to entry of judgment.

Because the furnishings and appliances were apparently assets of the community estate before the trial court, the trial court was obligated to characterize, value and divide them when it divided the remainder of the community estate. "[T]he trial court, in its judgment of dissolution or at a later time if it expressly reserves jurisdiction to do so, must value and divide the community estate of the parties equally. [Citation.] This task constitutes a nondelegable judicial function [citation] which must be based upon substantial evidence [citation]." (In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 880.) "Without a stipulation of the parties, the trial court cannot abdicate its statutory responsibility to value and divide the community estate." (In re Marriage of Cream, supra, 13 Cal.App.4th at p. 89.) "Thus, no matter the scope of the impasse between the parties or the complexity of the dispute, mediators, arbitrators, or other nonjudicial alternative dispute resolution methods (except pursuant to Family C. 2554 . . .) may not be used to value and divide the community estate unless both parties expressly agree to it." (11 Witkin, Summary of Cal. Law (10th ed. 2005) Commuity Property, § 213, p. 807; see also In re Marriage of Cream, supra, 13 Cal.App.4th at pp. 90-91.)

Gail argues that Mark failed to raise the issue in a timely fashion in the trial court. On October 10, 2006, the trial court told counsel to notify it by October 30, 2006 if they needed assistance resolving the issue. There is no indication in the record that either party so notified the trial court. Although the parties' failure to obey the trial court's order might have exposed them to some monetary or evidentiary sanction, it did not relieve the trial court of its mandatory, nondelegable duty to divide the community property estate. Mark objected to the proposed judgment on this ground prior to entry of judgment, and the trial court should have corrected its omission then.

That omission, however, does not require reversal of the judgment now on appeal. The judgment before us does not improperly characterize, value or divide the furnishings or appliances—rather, it omits them entirely. A party's remedy in such cases is to make a motion or bring an order to show cause in the trial court pursuant to section 2556. Section 2556 authorizes a party in a marital dissolution action to "file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment." Pursuant to section 2556, "even where there is an ostensible, final and complete judgment the parties may nonetheless litigate issues of property rights that are not expressly adjudicated by that judgment." (In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372, 1379, fn. 6.) Section 2556 permits relief "whether or not the court reserved jurisdiction, and even if the [omitted] item was mentioned in the pleadings or the judgment, so long as it was not dealt with as part of the adjudication of the parties' marital property rights therein." (Family Law, supra, ¶ 8:1520, pp. 8-365 to 8-366; see also Huddleson v. Huddleson (1986) 187 Cal.App.3d 1564, 1569; Brunson v. Brunson (1985) 168 Cal.App.3d 786, 788 [mention of...