F088670_20250827

Filed 8/27/25 Marriage of Perry CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Mariposa County. Anita S. Bryant and Michael A. Fagalde, Judges.

Law Offices of Kimball J.P. Sargeant and Kimball J.P. Sargeant for Appellant.

No appearance for Respondent.

-ooOoo-

Appellant Kathleen M. Perry and respondent Eugene G. Perry both requested dissolution of their marriage in family court. After two days of trial, the court made various rulings as to characterization of certain assets/debts. These rulings were memorialized in minute orders, but were not reduced to separate written orders signed by the judge. There were delays in resuming trial, during which time Eugene passed away. Thereafter, the court issued orders memorializing and/or enforcing the rulings it had made during trial before respondent’s death. Kathleen challenges those orders, contending that the action abated upon Eugene’s death. We reject Kathleen’s challenges and affirm the orders.

BACKGROUND

On December 15, 2017, Kathleen petitioned for dissolution of her marriage to Eugene. Eugene filed a response in which he also requested dissolution of the marriage. Eugene filed the response in pro. per., but later came to be represented by attorney Aaron Castleton.

Pre-trial Proceedings

On August 21, 2018, Kathleen filed a request for spousal support. On October 11, 2018, the court ordered Eugene to pay Kathleen spousal support of $697 per month.

At a hearing on September 29, 2022, the parties asked for time to negotiate before setting a trial date. The corresponding minute order indicates that a “Request for Order” had been filed regarding “sale of marital home,” and the hearing on that request would be continued as scheduled on October 13, 2022. (Underscoring omitted.) We have been unable to locate the referenced request for order in the appellate record.

At the hearing on October 13, 2022, counsel stipulated that the parties agreed to a sale of the home, agreed to a realtor, and agreed that either party may purchase the home with the highest bid.

Court Trial

A court trial was set for April 13, 2023, but was continued to May 11, 2023. No reporter’s transcript of the first day of trial on May 11, 2023, appears in the appellate record. However, there is a minute order concerning the proceeding, which states:

“Castleton provides documents to Court regarding rollover of Foster Farms (Fidelity) IRA retirement into Merced School Employees Credit Union IRA in May of 2021. Court reviews documents with parties. Parties agree transfer is accurate and a community property asset. Regarding pension from Foster Farms monthly amount is $1172.13 paid to [Eugene]. Parties agree this is a community property asset. Regarding pension division, Court orders MSECU pension be divided 50/50 and QDRO be issued to address division. Court orders QDRO be prepared and Castleton engage Mr. Harris to do the QDRO. Court reserves. jurisdiction over payment for QDRO. Court sets next date for trial for Friday 6/2/2023 at 10:00 am. Court states no Court Reporter will be provided by the Court for 6/2/23 trial date. If parties want a reporter, they will have to arrange for one. Castleton to start QDRO and send letter outlining issues discussed/determined today.”

The second day of trial went forward on June 2, 2023, as scheduled. No reporter’s transcript of this proceeding appears in the appellate record. A minute order indicated that Eugene testified regarding the “state of house and value.” Kathleen testified “regarding refinancing of house/condition of house.” Both parties agreed the fair market value of the house was $335,000. The minute order then noted:

“Court finds current fair market value of house is $335,000.00 and current mortgage owed is (subject to additional info) $150,000.00. Court finds $185,000.00 is community property value and house is awarded to [Eugene].”

The minute order then proceeds to address various assets and claims related thereto. The assets are numbered, apparently in accordance with an exhibit No. B offered by Eugene. For example, items 17–22 were apparently credit card balances, which the court assigned to Kathleen. As to other items, the court stated it “reserve[d]” ruling on them.

The minute order also noted that Kathleen “state[d] she is not physically able to continue today and wishes to continue at a later date.” The court granted the request and stated that “issues still to be addressed are attorney’s fees and costs.” The court continued the hearing to August 4, 2023, and stated the court would provide a court reporter.

Subsequent Proceedings

Kathleen requested that the court delay the resumption of trial due to a “medical condition.” The court granted the request. Several trial setting hearings were held at which the court scheduled a future trial setting hearing. At a trial setting hearing on December 11, 2023, Castleton (Eugene’s counsel) represented that they would need half of a day to complete trial.

At a trial setting conference on February 5, 2024, it was noted that Eugene had died on December 24, 2023. The minute order indicated that Castleton addressed the court regarding an unsigned findings and order after hearing (FOAH) pertaining to the second day of trial. The court invited briefing with respect to “their position on orders made in first part of this trial.” A review hearing was set for March 25, 2024. The parties were ordered not to sell the house pending the next hearing.

Both parties filed briefs. Kathleen’s brief, filed in pro. per., largely addressed tangential issues. However, the brief did state that the action should be abated and that “[n]othing was legally settled in court before.” Castleton’s brief argued that although the matter was abated, the court had jurisdiction to enforce the orders it had made prior to the death.

The March 25, 2024, hearing on the motion is the first proceeding for which a reporter’s transcript appears in the appellate record. At the beginning of the hearing, Castleton noted that one Misty Key was present via Zoom, and represented that she was the daughter of Eugene and Kathleen. The court observed that the purpose of the hearing was to determine whether or not “previous orders … that we had on May 11th[, 2023] and June 2nd[, 2023] should continue and whether the action should be abated.” Castleton submitted on his briefing. Kathleen raised several tangential issues and the court attempted to redirect her to the topic of the hearing.

Relying on In re Marriage of Lisi (1995) 39 Cal.App.4th 1573, 1575–1576 (Lisi), the court ruled that the action was abated upon the death of Eugene. The court also ruled that Eugene’s death did not affect orders already made in the case. The court stated its orders on May 11, 2023 and June 2, 2023 “stand.” The court also said it would sign the FOAH that Castleton had submitted regarding the June 2, 2023, trial proceedings.

On March 25, 2024, the court filed a FOAH concerning the June 2, 2023, trial date. The FOAH largely reflected the rulings indicated in the June 2, 2023 minute order, though it is not a verbatim recitation.

Separate from the FOAH, the court also issued a minute order dated March 25, 2024. The minute order reflected the court’s verbal rulings at the hearing, including that the action is abated and the court has no further jurisdiction. On April 8, 2024, the court filed a FOAH for the March 25, 2024, hearing, which restated the court’s rulings.

In May 2024, Castleton filed a declaration stating that the county recorder’s office indicated it could not transfer the home in accordance with the court’s order because it confirmed the property to “‘husband’” rather than “Eugene Perry.” The recorder’s office also needed a legal description, the assessor’s parcel number, and to have the property’s city changed from Greely Hills to Coulterville.

On May 30, 2024, the court filed an amended FOAH reflecting the changes requested by Castleton.

On May 30, 2024, Kathleen—now represented by counsel—filed a motion to set aside the FOAH filed on March 25, 2024 and April 8, 2024. The motion also sought a stay of enforcement of the judgment and dismissal of proceedings.

The court set a hearing on the motion and set a briefing schedule. Under the schedule, reply briefs were due by July 1, 2024. The court ordered that any actions to transfer/sell the assets described in the March 25, 2024 and April 8, 2024 FOAH be stayed pending a ruling on the present motion.

On July 2, 2024, Misty Key filed an opposition to the motion. In the same filing, Misty asserted she was an “Interested Party” under Family Code section 2021, and asked to be joined as a party.

The court held a hearing on the motion on July 8, 2024. When the matter was called, Castleton appeared via Zoom and identified himself as representing Misty Key. The court stated that Kathleen’s counsel was “logged into the family law Zoom link,” but he was “in the wrong location.” The court said it would take a break and then re-call the case.

During the break, Kathleen filed a reply brief in which she opposed Misty’s joinder to the action, observing that she did not comply with the requirements of California Rules of Court, rule 5.24(d)(1).

When the court re-called the matter later in the afternoon, Kathleen’s counsel appeared and explained his office had made a calendaring error. The court stated it did not have time to review the filing and asked if counsel wanted to proceed. Both counsel said they were okay with moving forward with the hearing. After hearing argument, the court denied the motion.

On September 19, 2024, Kathleen filed a notice of appeal as to the FOAH entered on March 25, 2024, April 8, 2024, and the FOAH “following the hearing on July 8, 2024,” respectively. The trial court did not file a written FOAH for the July 8, 2024, hearing until October 28, 2024. On December 27, 2024, this court granted Kathleen’s unopposed request to deem her notice of appeal as having also been taken from the October 28, 2024, order. Eugene has not appeared in the action, nor have we received any request by an estate or successor-in-interest to intervene.

DISCUSSION

1. The Challenged Orders are Valid Because the Trial Court Retained Jurisdiction to Enforce Rulings Made Prior to Eugene’s Death

Kathleen argues that once Eugene passed away, the trial court “seemingly lost jurisdiction to make any further orders in the case.” Kathleen acknowledges that there are exceptions to this rule, but contends that none of them are “applicable in this particular case.”

Law

The death of a party dissolves the marriage. (Fam. Code, § 310, subd.(a).) Generally, further action in the case is abated upon the death of a party. (Lisi, supra, 39 Cal.App.4th at p. 1575.) However, while “the death of one of the spouses in such a case abates the divorce action, the abatement relates to the status of the parties and not to the property rights theretofore adjudicated. The death destroys the cause of action for the dissolution of the marriage; it does not liquidate the property rights which crystallized in the interlocutory decree.”¹ (McClenny v. Superior Court (1964) 62 Cal.2d 140, 144 (McClenny).) As a result, “‘the death of one of the parties does not prevent the courts from taking action to enforce the rights adjudicated prior to the death of one of the parties.’” (Id at p. 145; see Lisi, supra, at pp. 1575–1576.)

Analysis

Here, the court made several oral rulings as to characterization of certain assets and debts before Eugene’s death. These orders were memorialized in minute orders, but not in any written orders signed by the judge. Only after Eugene’s death did the judge sign orders pertaining to the rulings. However, we conclude that because these later-signed orders merely memorialized and/or enforced the rulings made prior to Eugene’s death, they were not in excess of the court’s jurisdiction. This is because, as noted above, the abatement “relates to the status of the parties and not to the property rights theretofore adjudicated.” (McClenny, supra, 62 Cal.2d at p. 144.)

Certainly, the court would not have been able to issue new orders as to property disputes that had not yet been ruled upon at Eugene’s death. (In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 1229.) For example, the issues upon which the court “reserve[d]” ruling cannot now be resolved by the family court. However, the court was empowered to memorialize and enforce the decisions it made prior to Eugene’s death.

The case of Lisi is instructive, if not controlling. In that divorce case, the court ruled that an attorney for the children would be appointed and that each party would pay a share of the attorney fees. (Lisi, supra, 39 Cal.App.4th at p. 1575.) Before the court apportioned each party’s share of the attorney fees, and before a judgment of dissolution had been entered, the husband died. (Ibid.) The wife contended the husband’s death abated the action and deprived the court of jurisdiction to apportion the attorney fees between the parties (or the community). The trial court rejected the wife’s argument. The court spelled out the amount of attorney fees owed and ordered the wife to share the cost of attorney fees equally with her husband’s estate. The Court of Appeal affirmed. It held that “[s]ince the right to [attorney] fees had been adjudicated before [the husband’s] death, the court retained jurisdiction after his death to determine the amount of fees and allocate payment between the parties.” (Id at p. 1576.)

Kathleen tries to distinguish Lisi, saying that case involved an “express reservation of jurisdiction.” It is unclear what exactly Kathleen is referring to, as Lisi does not mention any “reservation” of jurisdiction. The opinion does refer to “retain[ing]” jurisdiction, stating: “Since the right to [attorney] fees had been adjudicated before [the husband’s] death, the court retained jurisdiction after his death to determine the amount of fees and allocate payment between the parties.” (Lisi, supra, 39 Cal.App.4th at p. 1576, italics added.) But the opinion was not saying there that the trial court had made an express reservation that preserved its jurisdiction after death. Instead, Lisi was saying that the trial court’s jurisdiction endured because the “right to [attorney] fees had been adjudicated before [the husband’s] death .…” (Ibid.) The same can be said of the present case: since the right to the property characterizations at issue had been adjudicated before Eugene’s death, the court “retained” jurisdiction after his death to enforce the vested property rights through written orders.

Kathleen suggests that the court’s rulings reflected in the minute orders were not “formal.” Again, it is unclear why the formality of a ruling is material. The important fact is that the minute order reflects the trial court was actually deciding—then and there—the various asset/debt characterization issues presented. For example, the minute order states:

“Regarding Chase bank account ending 8553 (Attachment #8 of [Eugene]’s [exhibit No.] B). Castleton requests Court award account to [Kathleen]. Court so awards.” (Italics added.)

Another example from the minute order:

“#23 House appraisal re-imbursement. [Eugene] requests $500 be paid to him. [Kathleen] states she does not agree/does not believe this is accurate. Court orders $500 reimbursement from [Kathleen] to [Eugene].” (Italics added.)

The plain language of the minute order reflects the court was adjudicating the issues presented (except for certain issues as to which the court “reserve[d]” for future determination). That the ruling is reflected in a minute order, rather than an order signed by the judge, is immaterial. But even if the technical definition of “order” had been the dispositive factor here, we would still reject Kathleen’s contention. “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” (Code Civ. Proc., § 1003, italics added.) A minute order reflecting a verbal ruling is equivalent to the signing of a formal order. (Simmons v. Superior Court (1959) 52 Cal.2d 373, 378–379.)

Kathleen also observes that the trial court could have later changed its rulings made at trial. (See Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590(a)–(b).) But that is true of many orders before judgment. Yet cases like Lisi do not treat this as the relevant factor. Instead, the question is whether the court adjudicated the particular issue while both parties were alive. We do not find it material that, in theory, the trial court could have later changed its adjudication before judgment.

Consequently, we conclude that the court retained jurisdiction to enforce the rulings it made during trial, and that the subsequent orders were merely entered to enforce these rulings.²

DISPOSITION

The orders are affirmed. As Eugene did not appear, the parties shall bear their own costs.

MEEHAN, J.

WE CONCUR:

HILL, P. J.

FAIN, J.³