Marriage of Fink, In re

• Decision Date: 14 January 1976
• Citation: 54 Cal.App.3d 357,126 Cal.Rptr. 626
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Max C. FINK. Max C. FINK, Petitioner and Respondent, v. Sybil FINK, Respondent and Appellant. Civ. 44716.

Page 626

126 Cal.Rptr. 626

54 Cal.App.3d 357

In re the MARRIAGE OF Max C. FINK.

Max C. FINK, Petitioner and Respondent, v. Sybil FINK, Respondent and Appellant.

Civ. 44716.

Court of Appeal, Second District, Division 4, California.

Jan. 14, 1976.

R. Stephen Duke, John J. Waller, Rosendahl & Levitt, and Edwin M. Rosendahl, Beverly Hills, for petitioner and respondent.

Greenberg & Glusker, Michael K. Collins and Harvey R. Friedman, Los Angeles, for respondent and appellant.

FILES, Presiding Justice.

The husband commenced this proceeding on January 10, 1972, with a petition for dissolution of his thirty-one year marriage. Husband moved for a separate and early trial of the dissolution issue, stating that reconciliation was not possible, that the dissolution hearing would be brief, and that the other issues (ascertainment and division of community property, spousal support and attorney fees) would require a long trial preceded by extensive discovery. On March 12, 1974, the trial court granted husband's motion to bifurcate, and, after a hearing on March 21, 1974, granted an interlocutory judgment of dissolution, in which the court expressly reserved jurisdiction as to all other issues. That interlocutory judgment was entered on April 9, 1974, no trial having yet been held on the other issues. Wife has appealed the order of the trial court allowing bifurcation, and the interlocutory judgment entered April 9, 1974.

Wife does not now challenge the finding of the trial court that the marriage had broken down by reason of irreconcilable differences between the parties. The purpose of her appeal is to test the validity and effect of the interlocutory judgment.

The critical issues are (1) whether this interlocutory judgment is in law a judgment which is appealable despite the trial court's expressed intention to reserve jurisdiction to decide other issues at a later time; and (2) if it is a judgment, whether the trial court erred in not having first tried and determined the other issues in the case.

We have concluded that under the Family Law Act, Civil Code sections 4000 et seq., operative January 1, 1970, the procedure followed was proper and that the interlocutory judgment of dissolution is effective and appealable.

Code of Civil Procedure, section 904.1, provides, in pertinent part, that 'An appeal may be taken from a superior court in the following cases:

'(a) From a judgment, except (1) an interlocutory judgment, other than as provided in subdivisions (h), (i) and (j) . . .

'. . .om

'(j) From an interlocutory judgment of dissolution of marriage.'

Intermediate orders, such as that of the trial court on March 12, 1974, bifurcating the issues and setting the dissolution contest for a separate trial, are not appealable. Insofar as this appeal has been taken therefrom, the appeal must be dismissed. The propriety of the court's ruling, however, may be considered here upon review of whatever appealable judgment ensues.

Wife contends that the judgment entered April 9, 1974, violates the one-judgment rule. "There can be but one final judgment in an action, and that is one which in effect, ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy." (Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701--702, 128 P.2d 357, 360.)

This rule is interrelated with the right of appeal, because 'no order or judgment may be appealed from unless it finally disposes of the case in the trial court . . . (A) disposition which determines completely all issues between two opposing parties is final within the meaning of the basic rule (citation); but a disposition which leaves undetermined essential issues is not final, even though it purports to dispose of some issues (citation).' (Turner v. Los Angeles Realty Board (1965) 233 Cal.App.2d 755, 758, 43 Cal.Rptr. 919, 921.)

The rule that there be but one final appealable judgment in a lawsuit has been characterized as a 'fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await final disposition of the case.' (6 Witkin Cal.Procedure (2d ed. 1971) Appeal § 36, p. 4050.)

In divorce actions under the statutory law existing prior to 1970, the interlocutory decree of divorce was recognized as the final judgment which determined rights and duties as between the parties to the marriage, and hence the interlocutory decree was made appealable under Code of Civil Procedure section 904.1, subdivision (j). The same section would permit an appeal from the interlocutory decree of dissolution under the Family Law Act if it is the equivalent 'final' determination of the issues in the case.

Wife points out that in the instant case the procedure followed by the trial court will ultimately result in three judgments and, conceivably, multiple appeals: the interlocutory decree already entered; a final decree dissolving the marriage; ¹ and a judgment resolving the economic issues which will have been litigated in the superior court while this appeal has been pending.

It has long been established that controversies over spousal support, division of marital property and custody of minor children can be litigated in an action separate from the action which decrees a termination of the marriage. (See Estin v. Estin (1948) 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Lopez v. Lopez (1965) 63 Cal.2d 735, 737, 48 Cal.Rptr. 136, 408 P.2d 744; Hull v. Superior Court (1960) 54 Cal.2d 139, 147--148, 5 Cal.Rptr. 1, 352 P.2d 161.) This concept, sometimes called 'divisible divorce,' is not inconsistent with the basic principle that a single action should result in only one final appealable judgment. Although the parties may litigate their controversies in several actions, each action should, under conventional theory, result in a single judgment disposing of the issues raised in that action.

California law also recognizes a form of divisible appeal, in that a party may appeal either from the whole of a judgment or from a particular part of one. (See Rule 1(a), Cal. Rules of Court.) The general rule is that where portions of a judgment are truly severable, an appeal from one portion will bring up for review only that portion, leaving all other parts of the judgment in full force and effect. (See G. Ganahl Lumber Co. v. Weinsveig (1914) 168 Cal. 664, 667, 143 P. 1025.) This principle, although conducive to partial adjudication, has long coexisted with the one judgment rule. (See, E.g., Haldeman v. Superior Court (1962) 206 Cal.App.2d 307, 23 Cal.Rptr. 895.)

In re Marriage of Stuart (1972) 27 Cal.App.3d 834, 104 Cal.Rptr. 395, involved a special application of the partial appeal rule under the Family Law Act. In Stuart the husband appealed from the interlocutory judgment of dissolution. The husband's brief on appeal was devoted principally to the issue of child custody and made no attack upon the portion of the decree ordering dissolution of the marriage. The wife moved to dismiss the appeal insofar as it purported to be from that portion of the decree which ordered dissolution. Her objective was to perfect her right to a final decree of dissolution under Civil Code section 4514 without waiting for appellate review of the contested issues. The difficulty facing the appellate court was that, prior to the 1970 Family Law Act, Civil Code section 132 had forbidden the entry of a final decree while 'any appeal' from the interlocutory was pending, and the cases had construed this to be applicable whether the appeal was from a portion of the judgment or from the whole judgment. (See Harrold v. Harrold (1954) 43 Cal.2d 77, 271 P.2d 489.) New section 4514 also says no final judgment shall be entered if 'any appeal is taken from the interlocutory judgment.'

The Stuart court examined the purpose of the Family Law Act in the light of its antecedents and the apparent legislative purpose, and concluded that the Legislature did not intend that the entry of the final decree should be held up pending disposition of a limited appeal not involving the dissolution issue. Accordingly, the Stuart appeal was ordered dismissed insofar as it purported to be from that portion of the interlocutory judgment relating to dissolution; and the court of appeal further ordered that a remittitur issue directing the trial court to enter a final decree of dissolution upon the expiration of the six months' provision of section 4514. ²

Although the Stuart decision did not involve an appeal from a partial judgment, and although the decision arrived at is not inconsistent with the one judgment rule, its reasoning is pertinent here. The Stuart opinion is significant in that it persuasively and authoritatively marshals the reasons to believe that the new Family Law Act embodied a legislative intent that the dissolution of marriage should not be postponed merely because issues relating to property, support, attorney fees or child custody were unready for decision.

A primary purpose of the Family Law Act was to remove from domestic relations litigation the issue of marital fault as a determining factor. (Attorney's Guide to Family Law Act Practice (Cont.Ed.Bar, 2d ed. 1972 p. 111); In re Marriage of Stuart, supra, 27 Cal.App.3d 834, 104 Cal.Rptr. 395.) The framers of the Act hoped that the new law would provide 'practicable procedures' for dissolving marriages where irreconcilable differences existed between the parties, procedures which reflected a realistic approach to the problems involved. (California Legislature, Assembly Committee on Judiciary, Report of 1969 Divorce Reform Legislation, 4 Assem.J. (1969 Reg.Sess.) pp. 8054, Et seq.)

In establishing 'irreconcilable differences' as the sole ground of dissolution except in cases of incurable insanity, the Legislature made ...