Filed 6/25/20 Marriage of Tearse CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re Marriage of ANNE TEARSE and JAMES TEARSE.

ANNE TEARSE,

Appellant,

v.

JAMES TEARSE,

Respondent.

A151500

(San Mateo County

Super. Ct. No. FAM 0122314)

MEMORANDUM OPINION

I.

This appeal concerns the terms of temporary orders that were entered with a status only judgment dissolving the marriage of Anne and James Tearse and bifurcating all remaining issues.

After the judgment was entered on March 28, 2017, Anne filed motions for a new trial (Code Civ. Proc., § 657) and to set aside the judgment (Code Civ. Proc., § 663). She argued that the judgment failed to include all of the temporary protections of Family Code section 2337 to which she was entitled. There is no need to recite the specific protections she asked to be added, since exactly what they are is not material to our disposition of this appeal.

At a May 15, 2017 hearing on Anne’s motions, the court announced it would vacate the judgment and enter an amended judgment adding most of the temporary protections Anne contended were missing from the judgment as entered. Contending that the minute order failed to address her concerns, on May 26, 2017, Anne filed an ex parte application to vacate the March 28, 2017 judgment. When that application was denied, Anne filed a notice of appeal from the status only judgment.

Following bifurcation of the issue of status, trial on the balance of the dissolution issues (division of property, including permanent division of the couple’s pension interests and permanent child and permanent spousal support, and other issues) commenced in July 2018, and the testimony in the case concluded in early October 2018. A judgment on reserved issues was filed June 13, 2019. Anne’s appeal from that judgment is pending before us separately. (Tearse v. Tearse (A156538, app. pending) (A156538).)

In this appeal, Anne argues that until there is a final judgment for the entire proceeding, which she contends will not occur until A156538 is decided, the absence of the temporary protections she claims were erroneously omitted from the March 28, 2017 judgment remains a live issue. She asks that we reverse the status only judgment and remand it so that an amended judgment may be entered, modified to include the specific protections of Family Code section 2337 to which the trial court ruled she is entitled.

James filed a responding brief on the merits, but separately moved to dismiss. In his motion to dismiss, he contends we lack jurisdiction. The motion points out that the court entered a minute order following its ruling on May 15, 2017 and that Anne failed to appeal that order. Contending that the entry of the minute order rendered the March 28, 2017 judgment a legal nullity, James seeks dismissal on the ground that the judgment as originally entered is nonappealable.

Alternatively, James acknowledges in his brief responding on the merits that, upon the entry of a status only judgment, the “opposing spouse is entitled to certain protections pending entry of the Judgment or when the Judgment becomes final.” As a result, he does not oppose modification of the March 28, 2017 judgment to include the temporary protections Anne seeks. If we deny his motion to dismiss and determine we have jurisdiction, James suggests, we should either order these temporary protections added to the status only judgment or remand with directions that they be added.

In opposition to James’s motion to dismiss, Anne points out that the May 15, 2017 minute order is specific as to only one of several issues she raised—the need to correct the date of dissolution—and as to all other claimed deficiencies, it is silent. On its face, Anne points out, the minute order simply says, “ ‘Correct Marital End Date is: March 24, 2017. [¶] Amended [J]udgment Bifurcating Status to be prepared by [James’s counsel].’ ” Anne acknowledges that the transcript of the hearing shows the court stated its intention to modify the judgment to address several of her objections, but she points out that no formal order was ever entered and no amended judgment was ever prepared or entered.

In response to James’s observation that she failed to appeal from the May 15, 2017 minute order, Anne argues that there was nothing to appeal, as the minute order and the transcript—even if read together—do not constitute a proper order granting her motions. According to Anne, her motions were denied by operation of law, leaving the March 28, 2017 judgment undisturbed and therefore appealable.

On the merits of the appeal, Anne opposes any order from us adding the temporary protections at issue she seeks, and argues the correct disposition is to reverse and remand so that an amended judgment may be prepared in the trial court in accordance with its ruling on May 15, 2017, which will give her an opportunity to address the proper form of the judgment and ensure that the protections at issue begin to run from the date of entry of judgment on March 28, 2017.

On November 5, 2019, we issued an order requiring the parties to submit supplemental briefs addressing whether the entry of final judgment in July 2019 moots this appeal. In her supplemental brief, Anne argues, among other things, that until A156538 is decided, the issues she raises concerning Family Code section 2337 protections are not moot.

II.

A judgment terminating marital status is immediately appealable. (Code Civ. Proc., § 904.1, subd. (a)(1); In re Marriage of Fink (1976) 54 Cal.App.3d 357, 360; see Fam. Code, § 2341; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶¶16:272 to 16:273.)

We agree with Anne that there remains a justiciable controversy here. In his supplemental brief, James seeks to characterize the temporary protections Anne requested as, in part, moot, because according to him some of those protections were unneeded beyond the date of entry of final judgment. Without commenting on whether that characterization of Family Code section 2337 issues Anne has raised is correct or not, we do not decide mootness on an issue by issue basis. An appeal is either moot or it is not, and Anne is correct that this appeal is not moot.

We also agree with Anne on the merits. In effect, what the court purported to do at the May 15, 2017 hearing was grant, in part, Anne’s motions for a new trial and to set aside the judgment. The grant of a new trial motion must be memorialized in a written order prepared by the court, signed, and filed with the clerk and stating the grounds for the order. (Code Civ. Proc., §§ 657, 660.) That was not done. The procedure followed in resolving Anne’s motion to set aside the March 28, 2017 judgment was similarly defective. (Prothero v. Superior Court of Orange County (1925) 196 Cal. 439, 442 [“[I]t is clear that the respondent court, to properly grant said motion, should have made and entered another and different judgment pursuant to the requirements of section 663, Code of Civil Procedure. Its failure to enter such a judgment rendered its action on said motion, not merely erroneous, but void.”].)

Anne is therefore correct that the post-judgment relief she sought was effectively denied by operation of law (Code Civ. Proc., § 660), leaving the March 28, 2017 judgment undisturbed and thus still appealable as of the filing of her notice of appeal on May 30, 2017. Accordingly, we shall deny James’s motion to dismiss. Because on the merits James does not dispute that Anne “should receive the protections as stated by the Court on May 15, 2017,” and because in taking that stance he effectively confesses error, we shall reverse the March 28, 2017 status only judgment and remand it for the limited purpose of preparing and entering an amended judgment in conformity with the trial court’s ruling on May 15, 2017.

James’s Request for Judicial Notice filed December 6, 2019, is denied.

DISPOSITION

James’s motion to dismiss is denied and the status only judgment of March 28, 2017 is reversed. The case is remanded for the limited purpose of entry of an amended judgment conforming to the trial court’s May 15, 2017 ruling on Anne’s motion for a new trial and to set aside the judgment. Costs shall be awarded to Anne.

STREETER, Acting P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.