Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. RFLRS044907 Linda M. Wilde, Judge, and Michael Gassner, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Office of Beverly W. Quinn and Beverly W. Quinn for Appellant.
No appearance for Respondent.
OPINION
Richli J.
I
INTRODUCTION
Daniel Todd Betz (Daniel), petitioner and appellant, challenges a postjudgment order, authorizing Lisa Renee Betz (Lisa), respondent, to file a lis pendens against Daniel’s separate real property. (Code Civ. Proc., § 904.1, subd. (a)(10).) On appeal, Daniel argues the family court erred by authorizing a lis pendens to be recorded against his separate property. We agree and reverse that portion of the postjudgment order.
Daniel is represented by legal counsel. Lisa, respondent, who was represented by a lawyer in the family court proceedings, has not filed a respondent’s brief on appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The original marital dissolution action was filed in March 2005. Pursuant to the parties’ stipulation, a judgment was filed in April 2005. The factual and procedural history of this case was previously summarized by this court in December 2006 when it affirmed the April 2005 judgment in In re Marriage of Daniel Betz and Lisa Betz (Dec. 20, 2006, E039466 [nonpub. opn.]). A second appeal was recently resolved by this court in In re Marriage of Daniel Betz and Lisa Betz (June 22, 2010, E047838 [nonpub. opn.]).
As part of their stipulated judgment, the parties agreed they would continue to share ownership of the family residence where Lisa would live with their minor son. Daniel’s separate real property was identified in the stipulated judgment as 21230 Calhoun Court, California City, California.
In December 2008, Lisa filed a motion asking the court to order Daniel to repay a $200,000 equity line of credit that Daniel had purportedly caused to be placed against the jointly-owned family residence. Additionally, she asked the court to order Daniel’s separate real property be sold to secure repayment of the equity line of credit. Finally, she asked for attorney’s fees of $28,425, incurred in responding to other postjudgment proceedings.
In opposition, Daniel claimed that he had paid the home equity line, that the court had no jurisdiction over his separate real property, and that Lisa had waived attorney’s fees.
After the hearing, the court rendered findings and orders. It ordered Daniel to repay and close the line of credit within 30 days. Although Lisa had not asked for such relief, the court authorized Lisa to file a lis pendens against Daniel’s separate property to secure compliance with the order to pay the line of credit. It found Lisa had reserved the right to seek attorney’s fees and ordered Daniel to file an income and expense declaration.
III
ANALYSIS
The only issue raised on appeal is whether the court had jurisdiction to authorize a lis pendens to be recorded against Daniel’s separate property. A notice of lis pendens is available in an action concerning real property. (Code Civ. Proc., § 405.20.) A lis pendens may also be recorded in a family law proceeding involving real property. (Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1395-1396; Head v. Crawford (1984) 156 Cal.App.3d 11, 18, disapproved on other grounds in Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 36.) In the present case, however, the lis pendens was intended to affect Daniel’s separate property, the status of which has already been conclusively adjudicated in the stipulated judgment.
Daniel cites a line of cases, decided under the former interlocutory decree law, concerning the finality of a judgment of dissolution after the time to appeal or for a motion to vacate has expired. In Leupe v. Leupe (1942) 21 Cal.2d 145, the judge gave the wife an interlocutory decree, with a lien on the husband’s personal property and business to secure payments in lieu of a division of community property. No appeal was taken from the interlocutory decree, but after 11 months the husband moved to modify it, and the court removed the lien and made a final decree incorporating the change. The appellate court held the trial court lacked jurisdiction to terminate the lien and, if the trial court makes an actual division of the property in the interlocutory decree, the decree is res judicata on that issue as well as on other issues involved in the action. Upon affirmance on appeal, or expiration of the time for appeal or relief under Code of Civil Procedure section 473, the division becomes conclusive. (Id. atpp. 148, 149.) When the interlocutory decree becomes res judicata by lapse of time, the trial court no longer has jurisdiction to modify its terms relating to division of the property. (Id. at p. 150; Harrold v. Harrold (1954) 127 Cal.App.2d 582, 584.)
The present appeal does not expressly involve a challenge to the separate property characterization of Daniel’s property as set forth in the stipulated judgment. Instead, more accurately, the appeal questions the validity of the trial court’s order authorizing a lis pendens against Daniel’s separate property. The record does not offer any explanation regarding why the court made such an order when it had not been requested. Nevertheless, we agree with Daniel that the family law court lacked jurisdiction to authorize the recording of a notice of lis pendens, arising from the family law proceedings.
Instead, Lisa may need to file a separate civil action to encumber Daniel’s separate property: “But unless the parties otherwise agree, the court’s jurisdiction over separate property ordinarily extends no further (e.g., the family law court has no jurisdiction in a marital proceeding to impose a constructive trust on one spouse’s SP or to award damages for a SP conversion). To obtain other relief affecting separate property interests, an independent civil action must be filed.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶ 8:903, p. 8-223, citing In re Marriage of Braud (1996) 45 Cal.App.4th 797, 810, (quoting text); In re Marriage of Buford (1984) 155 Cal.App.3d 74, 77-78, disapproved on other grounds in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13.)
IV
DISPOSITION
In summary, we determine the court did not have jurisdiction to authorize Lisa to file a lis pendens against Daniel’s separate property as part of the marital dissolution proceedings. We reverse the postjudgment order permitting the lis pendens.
The parties shall bear their own costs on appeal.
We concur: McKinster Acting P. J., King J.