Filed 4/29/16 Marriage of Bradford CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of DENISE BRADFORD
and MARK BRADFORD.
DENISE BRADFORD,
G050650
Appellant,
(Super. Ct. No. 09D005163)
v.
OPINION
MARK BRADFORD,
Respondent.
Appeal from a judgment of the Superior Court of Orange County, Glenn R.
Salter, Judge. Reversed.
The Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L.
Swisher for Appellant.
Thomas Vogele & Associates, Thomas A. Vogele and Timothy M. Kowal
for Respondent.
INTRODUCTION
In disagreement on nearly every issue, divorcing spouses Mark and Denise
Bradford have had – so far – two bench trials to resolve their dissolution issues. The first
trial dissolved the marriage and allocated support and child custody. The second trial
dealt with the distribution of various assets. The second trial is the subject of this appeal.
Before the second trial, the parties commendably found some things they
could agree upon and stipulated to a number of issues. Among them was a stipulation
that certain retirement account withdrawals made by Mark between June 2009 – when
Denise filed for divorce – and April 2010 – when Mark moved out of the family home –
were to be treated as “post separation.”
The trial court accepted the stipulation, but then, at the conclusion of the
trial, ruled that since the parties had in fact not separated until April 2010, the retirement
account withdrawals were preseparation. This holding is the basis of Denise’s appeal.
She asserts the court was without power to find contrary to the parties’ stipulation that the
withdrawals were made postseparation.
Mark contends Denise’s appeal is untimely, arguing, in essence, that the
proposed judgment he submitted to the trial court – which the court signed and entered –
was meaningless. We cannot agree. We believe that was the final judgment in this case,
and we conclude Denise’s notice of appeal was timely filed. We therefore deny Mark’s
motion to dismiss.
We also conclude Denise is right about the separation. A trial court cannot
accept a stipulation at the beginning of a trial, try the case on that basis, and then reject
the stipulation when it makes its decision. Accordingly, we reverse the judgment to the
extent it is based on a determination that the withdrawals from Mark’s retirement account
were preseparation.
2
FACTS
Denise filed for dissolution of her marriage to Mark on June 5, 2009. A
trial took place in April 2011, and a judgment was entered on some issues in June 2011.
A second trial on the reserved issues was held on July 24, 2013. The parties stipulated
pretrial to a number of issues, one of which was that Mark had made three withdrawals
from his retirement accounts. All three withdrawals took place after Denise filed for
divorce in June 2009 and before April 2010. The stipulation stated these withdrawals
were “post separation.” The stipulation became a court order on the first day of trial.
The parties submitted posttrial briefing, and the court took the matter under
submission on August 23. The court issued its ruling by minute order on September 3,
2013, and the order was entered into the court’s docket on that date. The minute order
reserved jurisdiction to decide two issues: (1) the distribution of proceeds from a
wrongful termination lawsuit, then property of Mark’s bankruptcy estate; and (2) attorney
fees. No one asked for a statement of decision.
But on October 24, Denise filed a “Request for Clarification of Court’s
Ruling by Minute Order Dated September 3, 2013.” She sought “clarification” of four
issues, including “date of separation” and “whether [Mark] withdrew Retirement funds
pre or post separation.” At the hearing on the motion, which took place on February 3,
2014, the court asked her counsel for the legal authority for the request, and he responded
1
it was a motion for reconsideration under Code of Civil Procedure section 1008. With
that understanding, the court ruled it untimely.
Mark’s counsel then stated he had prepared a proposed judgment, and if
Denise thought there was something wrong with the September 3 minute order, she
should take it up on appeal. The court offered to “let this thing sit” for a month to see
1
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
3
whether the parties could resolve their differences. They could not, so the court ruled in
April 2014, denying the motion procedurally and on the merits. Mark’s counsel then
submitted the proposed judgment, which was filed and entered on July 7, 2014. Attached
to the judgment was an abbreviated version of the rulings from September 2013.
DISCUSSION
Mark and Denise have each submitted an issue for decision. Mark asserts
Denise’s appeal should be dismissed as untimely. Denise asserts the court erred in
choosing a date of separation in April 2010, that the actual date was in June 2009, and the
parties had so stipulated before trial. She further asserts she was deprived of due process
because the court surprised her by ruling the parties did not separate until April 2010, and
therefore the retirement account withdrawals were made before separation, not after.
I. Motion to Dismiss Appeal
The central issue of Mark’s motion to dismiss the appeal is how to
characterize the ruling issued by the trial court on September 3, 2013. If it was an
appealable order, then Denise’s notice of appeal is untimely by a wide margin. If it was,
as Denise now maintains, a tentative decision, not finalized until a judgment was entered
on July 7, 2014, then the notice of appeal is timely.
2
California Rules of Court, rule 3.1590(a) provides: “On the trial of a
question of fact by the court, the court must announce its tentative decision by an oral
statement, entered in the minutes, or by a written statement filed with the clerk. Unless
the announcement is made in open court in the presence of all parties that appeared at the
trial, the clerk must immediately serve on all parties that appeared at the trial a copy of
the minute entry or written tentative decision.” Subdivision (b) provides that the tentative
decision is not a binding judgment. Subdivision (c) provides: “The court in its tentative
2
All further rule references are to the California Rules of Court.
4
decision may: [¶] (1) State that it is the court’s proposed statement of decision, subject to
a party’s objection under (g); [¶] (2) Indicate that the court will prepare a statement of
decision; [¶] (3) Order a party to prepare a statement of decision; or [¶] (4) Direct that
the tentative decision will become the statement of decision unless, within 10 days after
announcement or service of the tentative decision, a party specifies those principal
controverted issues as to which the party is requesting a statement of decision or makes
proposals not included in the tentative decision.”
Although the minute order of September 3, 2013, could be viewed as final,
we must conclude it had to be a tentative decision. Nothing else in the record satisfies the
requirement that the court issue a tentative decision after a bench trial. We note that
Denise treated the minute order as final; she did not request a statement of decision, as
she would if she were dissatisfied with a tentative decision (see rule 3.1590(d)); she
moved instead for reconsideration under section 1008. Section 1008 applies to “orders,”
not to tentative decisions. Nevertheless, we do not believe a court may dispense with the
mandate of rule 3.1590 and simply omit the tentative decision altogether. Too many
events rely on issuing a tentative decision as a first step to condone foregoing compliance
with the rule.
The court had the ability under rule 3.1590(c)(4) to convert the tentative
decision to the statement of decision or under subdivision (h) to prepare a proposed
judgment 20 days after serving the minute order. Instead, the case languished for months
in the hope of settlement until judgment was finally entered in July 2014 – as submitted
by Mark, who now asserts that it was, in essence, meaningless.
We disagree. For the reasons outlined above, we conclude the judgment in
the case was the one submitted by Mark’s counsel and signed in July, 2014. Denise’s
notice of appeal was timely filed. The motion to dismiss the appeal is denied.
5
II. Date of Separation
Denise has asserted only one error. She contends the trial court ignored a
pretrial stipulation between Mark and her that certain withdrawals from his retirement
accounts were made postseparation. Both parties testified that, even though Denise
petitioned for divorce in June 2009, Mark did not move out of the family home until
April 2010.
Denise argues on appeal that the court had no authority to ignore the
parties’ stipulation regarding the nature of the withdrawals. Doing so, she claims,
resulted in “surprise” and denied her due process of law. Had she (or her attorney)
known the date of separation was going to be an issue, the trial would have been
conducted differently. Denise would have known it was her burden to establish that the
retirement funds were not used for community purposes, instead of relying on an
assumption, drawn from the stipulation, that it was Mark’s burden to establish the funds
were used for community purposes. (See State Farm Fire & Casualty Co. v. Pietak
(2001) 90 Cal.App.4th 600, 610-611.) Certainly she had no way of anticipating that the
trial court would jettison the stipulation already agreed upon and accepted by the court.
“‘When parties have entered into stipulations as to material facts, [the
court’s] duty is to treat such facts as having been established by the clearest proof.’” (T
& O Mobile Homes, Inc. v. United California Bank (1985) 40 Cal.3d 441, 451, fn. 11,
quoting Schlemmer v. Provident Life & Acc. Ins. Co. (9th Cir. 1965) 349 F.2d 682, 684;
see Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 443-444
[stipulation binding on court unless contrary to law, public policy or court rule].) Both
Mark and Denise stipulated before the trial that the withdrawals from Mark’s retirement
accounts were made postseparation, and the court had to either reject the stipulation or
accept this fact as having been established by the clearest proof. The trial was conducted
in reliance on the stipulation, and the court could not thereafter disregard it. (See Estate
of Howe (1948) 88 Cal.App.2d 454, 458-459.) When the entire play has been based upon
6
Claudius having poisoned King Hamlet, a ruling in Act V that he died of natural causes
ruins the production.
DISPOSITION
The motion to dismiss the appeal is denied. The judgment is reversed in
part. The trial court is directed to enter a new judgment on the “Retirement Funds” issue,
based on the withdrawals from Mark’s retirement accounts having occurred
postseparation. The parties are to bear their own costs on appeal.
BEDSWORTH, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
7