Marriage of Sullivan, In re

• Decision Date: 02 August 1982
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 127 Cal.App.3d 656 127 Cal.App.3d 656, 134 Cal.App.3d 634 In re the MARRIAGE OF Mark Jaye and Janet Linnea SULLIVAN. Mark Jaye SULLIVAN, Appellant, v. Janet Linnea SULLIVAN, Appellant. Civ. 23634.

Page 796

184 Cal.Rptr. 796

Previously published at 127 Cal.App.3d 656

127 Cal.App.3d 656, 134 Cal.App.3d 634

In re the MARRIAGE OF Mark Jaye and Janet Linnea SULLIVAN.

Mark Jaye SULLIVAN, Appellant, v. Janet Linnea SULLIVAN, Appellant.

Civ. 23634.

Court of Appeal, Fourth District, Division 2, California.

Aug. 2, 1982.

For Opinion on Hearing, see 209 Cal.Rptr. 354, 691 P.2d. 1020.

Patricia Herzog, Corona Del Mar, for appellant Janet Linnea Sullivan.

Gassner & Gassner and Beverly Jean Gassner, Ontario, Chair of the Amicus and Legislation Committee, Inland Counties Women at Law, as amicus curiae for appellant Janet Linnea Sullivan.

Jean D. Marcucci and Judi Oser, San Francisco, Attys. for Queen's Bench, as amicus curiae, for appellant Janet Linnea Sullivan.

Covington & Crowe and Donald G. Haslam, Ontario, as amicus curiae, for appellant Janet Linnea Sullivan.

Sorenson & Meek, Morris J. Sorenson, Santa Ana, and Max A. Goodman, Los Angeles, for appellant Mark Jaye Sullivan.

OPINION ON REHEARING

McDANIEL, Associate Justice.

The action in the trial court, on husband's petition, was for dissolution, with all issues customary in such cases before the court. The "bifurcated judgment on remaining issues" of May 1, 1980, included a joint custody order, awarded wife $250 per month child support for one daughter, reserved jurisdiction over spousal support for five years without fixing any current amount, and allowed wife's application for $1,250 attorney's fees and $1,000 costs.

Both parties appealed. Wife assigned as error the court's granting of husband's motion in limine, which order operated to foreclose introduction of evidence on the value of husband's medical education, pursued and completed entirely during the course of the marriage. Wife also excepted to a partial summary judgment which adjudicated that husband's medical degree was not community property. Husband's cross-appeal challenged the award to wife of attorney's fees and costs as arbitrary because there was no showing of necessity and because a substantial portion thereof had been incurred in an effort to make "new law." Wife also challenged the court's refusal to award her spousal support currently.

In our initial opinion, the trial court judgment was reversed in part with directions and affirmed in part. The reversal was directed at the order in limine, our view then being that the evidence excluded by such order would have been relevant in calculating, on behalf of the community, the amounts by which, on several possible theories, the value of the separate property interest of the husband in his medical education had been enhanced or contributed to during the marriage. Otherwise, the judgment was affirmed.

Husband's petition for rehearing was granted and the matter is again before us for disposition.

SYNOPSIS OF THE TRIAL COURT PROCEEDINGS

In husband's petition, certain items not material to the appeal were listed as community property. Husband also requested that his medical practice be confirmed as his separate property. In her response, wife listed among the items of community property the husband's medical practice.

The proceeding was bifurcated to enable immediate dissolution of the marriage and award of joint custody of the parties' minor daughter, reserving to the latter phase of the case trial of the remaining issues.

About fourteen months later, husband moved for a partial summary judgment that his medical education was not community property, this although, insofar as the record reflects, there had, up to that time, been no reference whatsoever in the pleadings In connection with these motions, it was revealed to the court that, several months before, the parties through counsel had stipulated "That the accounts receivable, equipment, patients, goodwill and other assets of the medical practice of Petitioner, with the exception of the value of [husband's] medical doctorate (education), as a community asset and the interest attributable thereto in his practice, shall be deemed the separate property of [husband]. This Stipulation does not constitute acknowledgement by [husband] of a community interest in the medical doctorate (education) or any resulting interest attributable thereto in the practice."

                to husband's medical education.   As noted, wife's response alleged only that the husband's medical practice was community property.  Simultaneously, husband moved for an order in limine which would exclude any and all evidence of the value of husband's medical education
                

Otherwise, in the declaration of husband's counsel, filed in support of the motion for partial summary judgment, he acknowledged that "[wife] seeks to establish that [husband's] medical education is a community asset which is capable of division and valuation." The declaration further noted that "[husband] and [wife] have divided most, if not all, of their community property assets with the sole exception of the issue of whether [husband's] professional medical education may be characterized as a community asset, as distinct and apart from the medial [sic] practice of [husband], and, if so, the value of the professional education."

The declaration of husband's counsel filed in support of the motion for an order in limine was essentially the same as the companion declaration except that it further acknowledged that the wife had retained the services of an expert witness who was prepared to testify "regarding characterization of a professional education as a community asset, and valuation of that asset."

The two motions were heard and argued at the same time. Both were granted after an offer of proof of what wife's expert witness would testify to was made and stipulated to solely for the purpose of making a record on appeal. No evidence of what happened during the marriage was taken at this hearing, although a trial brief, later made a part of the record on appeal, was submitted by wife's counsel, seemingly as a further offer of proof of facts relevant to the issues raised by the two motions noted.

In granting the motions, the trial court stated that "... the law seems to be abundantly clear that there is no divisible property right in a medical education, according to the cases of Todd [v. Todd, 272 Cal.App.2d 786, 78 Cal.Rptr. 131] and Aufmuth, and, therefore, I'm going to have to grant the motion in limine to exclude testimony to that issue ... based on the present law." The court continued, "With regard to the motion for partial summary judgment, I think that also should be granted based on my other ruling." Finally, the court said, "So you have a complete record for appeal, let me state the reason the court is granting the motion in limine to preclude testimony on that subject matter, and also granting the motion for partial summary judgment, [it] is the language contained in the case of In re Marriage of Aufmuth, ... 89 CA3 446 ."

The bifurcated phase of the case proceeded to trial a week later and resulted in the judgment earlier recited. The testimony at the trial was limited to the issues of child support, spousal support, and attorney's fees and costs, if any, to be awarded the wife.

FACTS

The parties were married September 7, 1967. There is some dispute as to the date of separation. The husband cited June 15, 1977, the wife April 15, 1978. Because of the stipulation that the medical practice is separate property in which the community claims no interest, the actual date of separation is of no consequence to any issue on appeal.

As referable to wife's principal assignment of error, the critical facts are those In wife's opening brief she purports to set out a "Summary of Facts" covering the foregoing kinds of things for the period 1967 to 1978. In doing so, wife makes not even one reference to the record in support of her recitation of the facts as required by the rules on appeal. In pursuing our own search of the record to verify such recitations, we discovered that the apparent source of these "facts" was a similar account contained in wife's "trial brief" submitted to the trial court at the time the two pretrial motions were argued. That document was made a part of the record on appeal by means of an augmentation stipulated to by counsel. Moreover, as stated in husband's petition for rehearing, "That stipulation was entered into at the request of Counsel for Appellant so that she might have the Points and Authorities therein before this Court, a request not considered objectionable by Counsel for Respondent."

which occurred between marriage and separation and include the schools attended by the parties, the costs of going to school, the jobs the parties held and for what periods, the earnings therefrom, sources of other funds received and expended by them, and the results of their academic pursuits.

In any event, there is at best an ambiguity in the record concerning whether these factual recitations in the trial brief of March 13, 1980, actually came to the attention of the court that day or whether the facts therein stated were taken into account by the court in making its ruling. The reporter's transcript sheds scant light on the matter. At the outset of the March 13, 1980, hearing, counsel for wife stated, "As part of our offer of proof, I would like to submit the responsive pleadings that I filed, which, because of time, just were really my trial brief, which that was all I had time to do." Counsel then went on to refer to items having to do with the expert witness wife had retained to testify to certain matters as earlier noted in this opinion.

There is nothing further in the way of reference to these "trial brief" facts in terms of which witness would testify to what, should such witness be called to testify. Moreover, the stipulation of opposing counsel went only to what the expert witness would testify to were he called. More particularly, counsel for husband, in response to the court's inquiry into what he would stipulate to,...