Opinion
D070374
07-25-2017
In re the Marriage of PATRICK and JASMINE HERMAN. PATRICK HERMAN, Respondent, v. JASMINE CIRUJEDA MASTACHE, Appellant.
Jasmine Cirujeda Mastache, in pro. per., for Appellant. Patrick Herman, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ED053089) APPEAL from orders of the Superior Court of San Diego County, Margaret Powers and Selena D. Epley, Judges. Affirmed. Jasmine Cirujeda Mastache, in pro. per., for Appellant. Patrick Herman, in pro. per., for Respondent.
Patrick Herman and Jasmine Cirujeda Mastache divorced many years ago. In January 2015, the family court (Judge Stone) ordered the sale of their former marital residence—a condominium that they had acquired during the marriage (the January 2015 order). Mastache did not appeal that order.
The record does not indicate in what year the parties divorced.
The January 2015 order is not included in the record, but the court refers to the substance of the order in the transcripts, and the parties describe the order in their briefing.
In 2016, the court (Judges Powers and Epley) denied Mastache's requests and/or motion to set aside the January 2015 order. In her motion, Mastache asserted arguments that she could have raised in a timely appeal of the January 2015 order. The court also issued orders to enforce the January 2015 order, such as appointing an elisor.
Mastache appeals from the court's 2016 orders denying her motion to set aside, and otherwise enforcing, the January 2015 order. We conclude that she may not appeal the court's 2016 orders to the extent that she is in substance challenging the January 2015 order, which she did not timely appeal. To the extent that she raises issues different from those that could have been raised in a timely appeal of the January 2015 order, we are not persuaded by her arguments. Accordingly, the orders are affirmed.
BACKGROUND
Herman filed a request to enforce the court's January 2015 order, which required a sale of the condominium. Mastache opposed his request. She argued that the condominium could not be sold because Herman had "gifted" it to her in July 2014 via a quitclaim deed and that he had misrepresented the property to the court as community property. She further argued that she and Herman agreed in 1994 to hold the property as joint tenants—not community property. She claimed that the January 2015 order was "void and voidable" and "not enforceable."
In April 2016, Mastache filed a motion to set aside the January 2015 order based on the same arguments, to wit, that Herman had misrepresented the condominium as community property. Herman opposed her motion. The court (Judge Powers) heard argument from the parties, declined to set aside the January 2015 order, and noted that there would be a further hearing on the matter. The court granted Herman's request for enforcement of the January 2015 order, but continued the matter for him to present a suitable proposed order relating to an elisor. Mastache timely appealed the court's April 2016 order.
In June 2016, the court (Judge Epley) again denied Mastache's motion to set aside the January 2015 order. The court found that if construed as a motion for reconsideration under Code of Civil Procedure section 1008, the motion was untimely, and if construed as a motion to set aside a judgment under Family Code section 2122, the motion was also untimely and consisted of the same arguments that had been made before Judge Stone. Mastache timely appealed the court's June 2016 order.
At the April hearing, the court had indicated its decision to deny Mastache's motion to set aside, but the matter was not yet fully briefed. Subsequently, her motion became fully briefed, and in June, a different judge heard further argument on the matter. --------
Meanwhile, Herman continued to request the appointment of an elisor to sign real estate documents that Mastache would not cooperate in signing, as well as orders requiring Mastache to comply with a real estate agent, to effectuate the sale of the condominium. In October 2016, the court granted his requests. Mastache timely appealed the court's October 2016 order.
We requested that the parties address in their respective appellate briefs whether the court's order denying Mastache's motion to set aside the January 2015 order is appealable.
DISCUSSION
"The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) An order denying a motion to set aside a judgment is appealable only to the extent that it raises new issues unavailable on appeal from the judgment. This restriction is intended to prevent both circumvention of time limits for appealing and duplicative appeals from essentially the same ruling. (Spellens v. Spellens (1957) 49 Cal.2d 210, 228-229; Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 358-359; City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 553.) To further implement this policy, on an appeal from an appealable ruling, an appellate court may not review earlier appealable rulings. (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 158; Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 906.)
In January 2015, the family court ordered the sale of the parties' condominium based on the characterization of the property as community property. Mastache did not appeal from that order. Mastache's arguments in the instant appeal as to the improper characterization of the property and the court's inability to order a sale could have been raised on direct appeal from the January 2015 order. Indeed, in her motion to set aside the January 2015 order, Mastache pointed to alleged transmutations of the property that she claims occurred in 1994 and/or 2014. If she wanted appellate review of the January 2015 order, she was required to file a timely appeal. She cannot obtain appellate review of that order by moving to set it aside and then appealing from the 2016 orders denying her motion. The January 2015 order is not subject to appellate review at this juncture. We therefore do not consider Mastache's arguments that, in substance, challenge that order.
To the extent that Mastache raises issues in this appeal different from those that she could have raised in a timely appeal of the January 2015 order, the court's 2016 orders are appealable as postjudgment orders. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652 [setting forth requirements for postjudgment orders to be appealable, including (1) that the issues raised on appeal must be different from those arising from an appeal of the judgment and (2) that the order affects or relates to the judgment]; see also In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 683 [reviewing order denying motion to set aside dissolution judgment under Fam. Code, § 2122 for abuse of discretion]; Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1019 [reviewing postjudgment order appointing the clerk of the court as an elisor].) Although Mastache's briefs are difficult to follow, she appears to argue that Judges Powers and Epley did not perform their legal duties in evaluating Mastache's motion to set aside and/or in issuing enforcement orders, distinct from the propriety of Judge Stone's January 2015 order. As we discuss below, we are not persuaded by these arguments.
Mastache has failed to establish any error in the court's denial of her motion to set aside the January 2015 order. Her motion was untimely, and she did not proffer any new information in the motion. (E.g., Fam. Code, § 2122, subds. (a) & (b) [requires motion to set aside a judgment to be brought within one year of when fraud or perjury should have been discovered]; see also Code Civ. Proc., § 473, subd. (b) [applicant must seek relief within six months].) Her grounds for the motion were events in which she participated and obviously knew about as they were occurring in 1994 and 2014. The court properly denied her motion to set aside.
In addition, Mastache has failed to establish any error in the court's enforcement orders. She argues that Judge Powers failed to issue a statement of decision, citing In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134. However, under Code of Civil Procedure section 632, a statement of decision is required only " 'upon the trial of a question of fact by the court.' " (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294, italics omitted.) Mastache was not entitled to a statement of decision because the court did not conduct a trial.
She further argues that she was not afforded an opportunity to explain her positions before the court denied her motion. Based on our review of the record, the court gave Mastache a full and fair opportunity to present her arguments, but ultimately found that her arguments lacked merit.
Finally, Mastache improperly raises subsequent events relating to a 2017 request for an order regarding child and spousal support arrears. We do not consider matters that were not before the court at the time of the appealed orders. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [" 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court' "].)
DISPOSITION
The orders are affirmed. Costs on appeal are awarded to Herman.
AARON, J. WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.