Tearse v. Tearse (In re Marriage of Tearse)
| Decision Date | 22 September 2021 |
| Docket Number | A159223 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re the Marriage of ANNE and JAMES TEARSE. ANNE TEARSE, Appellant, v. JAMES TEARSE, Respondent. |
NOT TO BE PUBLISHED
San Mateo County Superior Court Case No. FAM-0122314
This case involves a prolonged marital dissolution between former spouses Anne and James Tearse[1] that, so far, has spawned seven appeals. For eight years Anne and James have sparred over child custody, retirement accounts, spousal support and more. To date, we have decided six appeals, including a companion opinion filed today, No. A158582. This case, along with No. A158582, deals with what was formerly the marital home, at 205 W. Floresta Way in Portola Valley.
Months after the trial court conditionally awarded the home to James, he filed an ex parte request for order (RFO). At a postjudgment hearing, the trial court granted the following relief on the RFO: James would receive temporary exclusive control of the home to get it sold in a timely fashion, an elisor would be appointed to get a listing agreement for the home signed, and a right of first refusal for both parties would be recognized. Anne filed this appeal in response. A year after the appeal was filed, James requested we take judicial notice of a stipulation subsequently entered into by the parties. The stipulation memorialized various agreements pertaining to the home, its sale and listing.
We now grant James's request and take judicial notice of the stipulation. Bearing in mind that litigation is not sport, we decline to spend valuable judicial resources deciding academic issues. We conclude that the stipulation moots Anne's appeal because, in light of it, we cannot provide her any effectual relief. While we view the appeal as moot to effectuate the proper disposition of the issues raised here, we shall reverse the orders appealed to the extent they have been superseded by the parties' stipulation. We resolve the appeal in this fashion not to correct error, but for the purpose of returning jurisdiction to the superior court and avoiding an inference that the orders under review if left fully intact, were affirmed on the merits.
Anne Tearse filed for legal separation from her husband, James, in 2013. Six years of contentious proceedings followed, culminating in a trial which produced a 170 page statement of decision from Judge Elizabeth M. Hill. The judgment is now pending both appeal and cross appeal in another docket before this court (No. A158068).
In the judgment, Judge Hill found the former family home at 205 W. Floresta Way to be community property, as “neither party claim[ed] a separate property interest.” The court also found the value of the home to be $2.7 million. After determining the value of each party's equity in the residence, the court denied Anne's request for a deferred sale of the property. Instead, Judge Hill awarded the home to James, conditional on his ability “to obtain financing to remove [Anne's] liability for any indebtedness secured by the marital residence.” In the event that James could not accomplish this buyout of Anne within 60 days, the court ordered the property to be listed for sale and sold “as is.”
The court also ordered Anne to vacate the residence upon proof of a buy out or at the expiration of the buy out period. Judge Hill finished the section by stating, “The Court reserves jurisdiction to make any order necessaryfor enforcement of the judgment.” Eight weeks after the entry of judgment, Judge Hill recused herself from this case.
After the case was reassigned, James filed an RFO asking for, among other things: (1) the clerk to sign a listing agreement for the family residence, as an elisor for Anne, (2) property control of the home, (3) attorney fees and costs as sanctions, and (4) a right of first refusal for the purchase of the home. Along with the RFO, James submitted a declaration to support a request for sanctions under Family Code section 271.[2] Anne filed a responsive declaration opposing James's requests and herself asking for an award of attorney fees and costs. The trial court denied both sides' requests and instead set the matter for hearing in December of 2019. At the time of the hearing, the marital judgment was on appeal with this court (No. A158068).
At the December hearing, Judge Richard DuBois (Judge Hill's replacement) ordered that Anne vacate the home and granted James temporary exclusive control of the property “so that he can work with the realtor to get it sold.” Despite objections from Anne on the validity of James's declarations and the court's jurisdiction, Judge DuBois stated, “And the court is just making a legal decision that because the judgment states that it did reserve jurisdiction for the court to make any orders to help enforce the judgment that, in light of the fact petitioner is excluded from the residence, that the respondent should have the temporary exclusive use, possession, and control so that he can work with the realtor and also to maintain the community property interest.”
Additionally, the court granted James's request for the court to sign the listing agreement via an elisor for Anne. On this point Judge DuBois stated,
As a final matter, the court granted James's request to be given permission to have a right of first refusal for purchase of the residence. Judge DuBois stated, After objections from Anne, the judge later clarified that the right of first refusal would be given to both parties. The court denied James's other requests or reserved them for a later date. The court finished by ordering James's attorney to prepare a formal order reflecting the court's rulings, and it issued a minute order. On December 16, 2019, over Anne's objections, Judge DuBois subsequently signed and filed a formal written order.
Anne filed a notice of appeal on December 17, 2019, challenging the above minute order and formal written order.
On February 22, 2021, James requested that this court take judicial notice of a stipulation and order entered into on December 7, 2020, and filed in the trial court on January 12, 2021. The stipulation contains 18 bullet points, the most important of which are:
[¶]... [¶]... [¶]... (Boldface omitted.)
In her response to James's request for judicial notice, Anne does not directly contest the appropriateness of our taking judicial notice of this order. She instead argues that this court should not consider James's assertions of fact made within the request itself.
James argues that the stipulation and order from December 7, 2020, moots Anne's appeal of the minute order and formal written order entered in December 2019. On this point, James points out that Anne's primary issues with the orders-the granting of exclusive use to James, the clerk's signing of the listing agreement, and the recognition of the right of first refusal-are no longer live controversies. Anne contends that despite the subsequent stipulation, we can still grant her effectual relief. Anne's argument on this point is that the possibility of future attorney fees and sanctions relating to this action defeats a mootness finding. We disagree.
At the outset, since Anne's contention that Judge DuBois lacked the jurisdiction to issue the orders he did in December of 2019 potentially affects whether, by dismissing for mootness we would be affirming void orders, we must address the matter of trial court jurisdiction. Throughout her opening and reply briefs Anne posits that because she appealed the marital judgment, Code of Civil Procedure section 916, subdivision (a) precluded the trial court from issuing any order, even one in furtherance of enforcing the marital judgment.
The relevant part of that statute reads: “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code...
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