Opinion
D069845
09-21-2017
In re the Marriage of CHRISTOPHER and KAREN ROQUE JACKSON. CHRISTOPHER JACKSON, Appellant, v. KAREN ROQUE JACKSON, Respondent.
Christopher A. Jackson, in pro. per., for Appellant. Law Office of Donald R. Oder and Donald R. Oder 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DS39566) APPEAL from an order of the Superior Court of San Diego County, James T. Atkins, Judge. Affirmed. Christopher A. Jackson, in pro. per., for Appellant. Law Office of Donald R. Oder and Donald R. Oder for Respondent.
In this postdissolution proceeding, Christopher Jackson appeals in propria persona the family court's February 9, 2016 order granting Karen Roque Jackson's request for the appointment of an elisor to execute a quitclaim deed transferring to her the title of real property located in Chula Vista, California (the property). We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Proceedings
Christopher and Karen married in 1993. In May 2009 the parties signed a marital settlement agreement (MSA) awarding Karen the property and Christopher the " 'Vegas Condo.' " The MSA required that each party " 'execute and deliver any documents, make all endorsements, and do all acts which are necessary or convenient to carry out the terms of [the MSA].' " The MSA also contained a resolution of disputes provision that provided for mediation or binding arbitration of all disputes on the "written request" of either party.
A prior appeal was taken and an opinion issued in In re Marriage of Jackson (Feb. 6, 2014, No. D063215) [nonpub. opn.] (the prior opinion). We take judicial notice of the record in the prior appeal, case No. D063215. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) The facts described in this section are from the prior opinion.
Christopher filed in propria persona a petition for dissolution of the marriage that attached a copy of the MSA. In February 2010 the family court entered a judgment of dissolution. In September 2010 the parties signed a loan modification agreement which modified the loan on the property.
In October 2012 Karen filed in propria persona a motion for appointment of an elisor. Christopher filed in propria persona a motion for a " 'property control' " order in which he sought " 'exclusive temporary use, possession, and control' " of the property. In her supporting declaration, Karen indicated that the court awarded her the property and Christopher signed the loan modification agreement knowing the property was in her possession. She also stated that she has made all mortgage payments on the property since the divorce settlement and loan modification and Christopher has not yet executed the quitclaim deed for the property. She requested that the court appoint an elisor to execute a quitclaim deed. In a responsive declaration, Christopher asserted that he agreed to remain as an obligor for the property only if Karen agreed to share ownership of the property with him going forward. He claimed the parties executed a new agreement to keep the property jointly and that he would sign over his interest in the property only if Karen relieved him of any financial obligation on the property.
In December 2012 the court conducted an evidentiary hearing on Karen's motion for appointment of an elisor and Christopher's motion for a property control order. The family court issued a minute order granting Karen's motion for appointment of an elisor and denying Christopher's motion for a property control order (the 2012 order). The 2012 order found that neither party had made a written request for mediation or arbitration and, per the MSA, the mortgage on the property was Karen's sole and separate obligation. The court declined to set aside the MSA and made no order regarding the Las Vegas property.
Christopher appealed the court's ruling for the appointment of an elisor to execute a quitclaim deed. Christopher, however, failed to provide a reporter's transcript of the evidentiary hearing on Karen's motion or any other adequate statement of the evidence considered by the court in making its findings and rulings. We concluded that Christopher forfeited his claims by not providing an adequate record for appellate review and thus failed to meet his burden of affirmatively demonstrating the court's findings and rulings were erroneous.
Instant Proceedings
Karen filed another request for an order appointing an elisor to execute a quitclaim to convey Christopher's interest in the property to her. Christopher filed a motion for binding arbitration under a provision in the MSA allowing either party to file a written request for mediation or binding arbitration. This motion had a hearing date in March 2016.
At a hearing in February 2016, the court granted Karen's motion, designated "The Clerk of the Court or Clerk's Designee" as the elisor and ordered the elisor to sign the quitclaim deed to the property on Christopher's behalf. Christopher appealed from the order appointing the elisor. His opening brief repeated many of the same arguments made in his earlier appeal. Karen filed a motion to dismiss the appeal as from a nonappealable order.
Although the respondent's brief states that Christopher failed to include the reporter's transcript for the 2016 hearing, Christopher's notice designating the record on appeal listed this transcript and the transcript is in the record on appeal. --------
We denied the motion to dismiss, finding that the postjudgment order appointing an elisor was appealable. We ordered review on appeal limited to arguments related to the February 2016 order appointing the clerk of the court as an elisor to sign a quitclaim deed to the property on Christopher's behalf, stating we would "not consider underlying issues relating to the December 2012 order that were appealed in case No. D063215." We provided Christopher two weeks to file a supplemental brief addressing any arguments he wished to raise on appeal regarding the February 2016 order appointing an elisor. Christopher did not file a supplemental brief. Although Christopher filed a reply to Karen's respondent's brief, he provided no argument showing how the family court erred when it issued the February 2016 order appointing the clerk of the court as an elisor.
DISCUSSION
A court may appoint an elisor to enforce its orders or judgments on behalf of a recalcitrant party who refuses to execute such documents. (Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020 (Blueberry).) Here, the parties entered into a MSA awarding Karen the property. The family court found that Karen was the owner of the property and the mortgage on the property was her sole and separate obligation. The family court denied Christopher's request to set aside the MSA and stated if Christopher failed to sign a quitclaim deed to the property, it would appoint an elisor to do so.
Karen subsequently obtained the instant order appointing the clerk of the court as an elisor to execute a quitclaim deed conveying Christopher's interest in the property to Karen. Although Christopher properly appealed from that order, he failed to provide any argument showing how the family court erred. (Blueberry, supra, 230 Cal.App.4th at p. 1020 [postjudgment order appointing an elisor is appealable].) Rather, he contends that the parties by words or conduct canceled the 2009 MSA and substituted a 2010 loan modification as a new agreement in place of the MSA. Accordingly, he claims the family court erred in finding that Karen was the owner of the property. Christopher's arguments are barred by the doctrine of law of the case.
"The law of the case doctrine states that when, in deciding an appeal, an appellate court 'states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.' " (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.) The doctrine applies to a rule of law necessarily decided in an appellate decision and determines " 'the rights of the same parties in any subsequent retrial or appeal in the same case.' " (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301-302.) " 'The doctrine is one of procedure, not jurisdiction, and it will not be applied "where its application will result in an unjust decision, e.g., where there has been a 'manifest misapplication of existing principles resulting in substantial injustice.' " ' " (People v. Boyer (2006) 38 Cal.4th 412, 441.)
Here, the family court rejected Christopher's argument that the 2010 loan modification canceled the MSA in its 2012 order. Specifically, in granting Karen's motion for appointment of an elisor the trial court found that Karen was the owner of the property under the parties' MSA. In making this determination the trial court held an evidentiary hearing where it considered evidence presented by the parties. We affirmed the 2012 order in the prior appeal. Christopher elected to proceed with the prior appeal " 'WITHOUT a record of the oral proceedings in the superior court.' " In this appeal, Christopher included the reporter's transcript of the 2012 hearing. At the hearing, the trial court rejected Christopher's argument that the loan modification agreement signed by the parties after entering into the MSA modified the judgment awarding the property to Karen. The trial court found Christopher's argument of a verbal agreement regarding the property not credible.
Assuming, without deciding, application of the doctrine of law of the case would result in an unjust decision based on Christopher's failure to designate the reporter's transcript of the 2012 hearing in the prior appeal, our review of the 2012 transcript, included in the record for the instant appeal, shows the trial court made a credibility determination regarding whether the parties intended the loan modification to modify the judgment awarding the property to Karen. We must accept the trial court's credibility determination. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981 ["It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility."].)
Christopher also asserts the family court lacked jurisdiction to issue orders relating to the property because the parties agreed in the MSA to mediate or arbitrate all disputes. Notably, Christopher filed a request for an order for binding arbitration that was pending when the family court issued the challenged order appointing an elisor. There is nothing in the record showing whether the trial court ruled on this motion. In any event, the record shows Christopher waived the right to arbitration.
The right to arbitration can be waived by participating in the litigation. (Code Civ. Proc., § 1281.2, subd. (a); Hong v. CJ CGV America Holdings, Inc. (2013) 222 Cal.App.4th 240, 258.) Waiver of arbitration occurs when a party seeking arbitration invokes the judicial process to such a substantial degree that compelling arbitration would work to the detriment or prejudice of the other party. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (St. Agnes).)
At the beginning of the 2012 hearing the family court raised the resolution of disputes provision contained in the MSA to confirm that neither party requested mediation or arbitration. Christopher noted that he requested mediation but stated he did not have a written request or evidence of his request. The family court then inquired whether the parties wanted the court to make some decisions. After both parties agreed, the court stated it would "hear the matter notwithstanding what is contained in the parties' [MSA]." Christopher's agreement to proceed with the litigation constituted a waiver of his right to mediation or binding arbitration under the MSA. Compelling arbitration at this juncture would severely prejudice Karen. (St. Agnes, supra, 31 Cal.4th at p. 1204 ["Prejudice typically is found where the petitioning party's conduct has substantially undermined [the] important public policy [in favor of arbitration] or substantially impaired the other side's ability to take advantage of the benefits and efficiencies of arbitration."].)
Finally, Christopher complains in his reply brief that the respondent's brief does not include supporting citations to any evidence in the record, no table of authorities, and no law to support any of her contentions. Although appellate briefs are required to contain a table of authorities, Karen cited no authority in her respondent's brief. (Cal. Rules of Court, rule 8.204(a)(1)(A).) Appellate briefs are also required to support any reference to a matter in the record by a citation to the volume and page number where the matter appears. (Id. at (a)(1)(C).) The respondent's brief violates this rule. Because the record in this matter is small, we exercise our discretion to disregard respondent's failure to comply with this appellate rule. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024-1025.) Based on this failure, we decline to award costs to the prevailing party and direct that each party is to bear his or her own costs on appeal. (City of Watsonville v. Corrigan (2007) 149 Cal.App.4th 1542, 1545, fn. 1 [no costs award to successful appellant because of failures to include proper record references in briefs and to supply adequate appellant's appendix].)
DISPOSITION
The order is affirmed. The parties are to bear their own costs on appeal.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.