Filed 2/21/20 Marriage of McAllen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of FELECIA and FRANK McALLEN III.

FRANK McALLEN III,

Respondent,

v.

FELECIA JACKSON-McALLEN,

Appellant.

G056994

(Super. Ct. No. 08D005221)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Daphne Grace Sykes, Judge. Affirmed.

Felecia Jackson-McAllen, in pro. per., for Appellant.

Law Offices of Jack I. Esensten and Jack I. Esensten for Respondent.

* * *

This appeal concerns a postjudgment order in a highly contentious marital dissolution. The acrimony continues to flare around two issues the trial court reserved in the judgment entered April 14, 2014. Felecia Jackson-McAllen (Felecia) , a pro se litigant, appeals from a postjudgment order denying her request for an evidentiary hearing on one of the two reserved issues.

Felecia’s opening brief is woefully deficient, lacking record references, a proper statement of facts, or a citation to the applicable standard of review. Rather than dismiss the appeal for its glaring procedural deficiencies (see Rules of Court, rule 8.204), however, we find the appeal fails on the merits.

Essentially, Felecia argues the trial court erred in denying her request for a hearing where she could prove respondent Frank McAllen III (Frank) lied in the divorce proceedings when he accused her of forging his signature on loan documents for a home equity line of credit (HELOC) on their home. Felecia contends the trial court reserved this “forgery issue” in the judgment, but, as explained more fully below, the trial court did not reserve this issue. Accordingly, the court did not abuse its discretion in denying Felecia’s request for an evidentiary hearing on that issue.

Nor did the trial court abuse its discretion in denying Felecia’s related request the court determine the parties’ respective financial obligations on the HELOC. The court did reserve that specific issue in the judgment. Nevertheless, the court found recent events rendered that issue moot: The lienholder judicially foreclosed on the HELOC, paying off the senior mortgage and relieving both parties of any financial liability on the HELOC. Consequently, the trial court acted within its discretion in denying Felecia’s request for an evidentiary hearing on the “HELOC issue.”

Although the notice of appeal is from the postjudgment order denying Felecia’s request for an evidentiary hearing on the forgery and HELOC issues, her brief goes far afield, seeking reversal of the judgment itself based on purported trial court error in the distribution and equalization of community assets and on “extrinsic fraud, mistake or other disability.” These direct attacks on the April 14, 2014, judgment are clearly time-barred. (Rules of Court, rule 8.104.)

I

BACKGROUND

Despite the opening brief’s lack of record references or proper statement of facts, we gleaned the following relevant facts from the record.

The parties were married for less than four years. The trial court entered a judgment of dissolution on May 9, 2011, with reserved issues. On April 14, 2014, the court issued a judgment on reserved issues, again reserving two issues. One of these reserved issues concerned the HELOC on the marital residence.

During the dissolution proceedings, the parties disagreed over their respective responsibilities for the $160,000 HELOC, which was a second mortgage on the residence. Although not entirely clear, it appears Felecia argued the HELOC was a community debt and each spouse should be charged with $80,000. Frank, however, denied liability on the debt, contending Felecia forged his signature on the loan documents.

The dissolution judgment did not resolve the issue. The judgment contains a paragraph dealing with the marital residence, which Frank was then renting out at a loss. The trial court found the two mortgages on the residence exceeded its value. The paragraph concluded: “The court finds no present value in the home and awards it to [Frank.] The court declines to award [Felecia] half of the $9,337.00 loss. The court will retain jurisdiction relative to the second loan on the property [the HELOC] as there was insufficient evidence relative to [Frank’s] signature to the loan.”

In March 2017, the trial court conducted a hearing on the parties’ competing requests for orders on various issues. Felecia who was representing herself at the hearing, requested an order requiring Frank to give her funds to hire “a handwriting expert on the HELOC loan.” Felecia explained she needed an expert to settle “the reserved issue” of whether Frank would “be responsible for the second on the home because [Frank had claimed] I forged his name on the document.”

When the trial court expressed skepticism this was a reserved issue, Felecia responded she had “a copy of the judgment” and a letter from Frank’s counsel, Jack Esensten, “saying that the reserved issue is regarding the forgery allegations by his client.”

Esensten clarified Frank gave “up on that point,” meaning his earlier claim he was not responsible for the HELOC because Felecia had forged his signature on the HELOC documents. Felecia insisted she still needed an order from the court charging Frank with responsibility for his $80,000 portion of the HELOC “because the whole [$]160[,000] is on my credit.”

Esensten responded no order on the HELOC debt was necessary because the debt no longer existed. He stated, “Doesn’t matter, your honor. That obligation has been foreclosed on. There’s no deficiency. [The lienholder] went through a judicial foreclosure. . . . So there’s no further claim against either party.” Esensten told the court, “It’s a moot problem. There’s nothing left to do.”

Nevertheless, Felecia insisted she needed a handwriting expert to disprove the forgery charge Frank had leveled against her. Felecia pointed out forgery was a crime “that carries jail time. They’re saying that I forged documents to the bank.” Felecia claimed an allegation of forgery could be a problem for her “in the future[.]” The court, however, denied Felecia’s request for a handwriting expert, stating, “I don’t think I’m going to need that because . . . you have an admission that he signed it. . . . [I]t’s undisputed.”

The trial court also advised Felecia that Frank’s withdrawn forgery claim was a nonissue. “I have not made a finding on anybody forging anything . . . . That’s just an allegation by him so I’m not going to make any orders with respect to that. That’s an unproven allegation and an unlitigated allegation.”

Notwithstanding the trial court’s stated position forgery was nothing but “an unproven allegation” that need not be judicially resolved, at later hearings on other issues Felecia continued to request money to hire a handwriting expert to disprove Frank’s forgery allegation against her. She argued the allegation was “slanderous” and could cause a problem for her professionally.

In August 2018, Felecia filed an ex parte application for an “At-Issue Memorandum Hearing prior to case transfer to appellate court.” In the jumble of paperwork accompanying the application, Felecia asked the trial court “to make specific findings on the issues of marital assets, forgery allegations, partnership, community debt, the existence of and division of alleged California community property.” The court denied the ex parte application but scheduled a hearing on the matter.

At the hearing, the court heard argument on various matters for which both Felecia and Frank had requested orders. When Felecia mentioned “the At-Issue coming up,” the court was perplexed. “What do you mean the At-Issue?” Felecia explained she expected “to be heard on the HELOC and the forgery and, you know, the postseparation payments that I paid.”

At this point, the trial court finally put its foot down. The court stated, “[T]he court has issued a judgment. . . . So this is kind of going back and redoing a lot of that, and it’s not per the proper mechanism.” Felecia immediately responded, “That was a reserved issue for the HELOC and the forgery.” The court, however, did not agree. “I don’t think it’s a reserved issue. I probably said I wouldn’t rule on it.”

The October 2, 2018, minute order stated: “Court denies [Felecia’s] motion for hearing on at-issue as this court has already issued a judgment on this case on [April 14, 2014].”

II

DISCUSSION

The arguments in Felecia’s opening brief are scattershot and difficult to follow. Essentially, she argues the trial court erred in concluding it lacked jurisdiction to consider the forgery and HELOC issues. Felecia claims this ruling was wrong because the court specifically reserved the forgery and HELOC issues in the April 14, 2014, judgment. Consequently, Felecia asserts, the court erred in denying Felecia’s motion for an evidentiary hearing on these “reserved” issues.

While we agree with Felecia the court did reserve in the judgment the issue of the parties’ respective financial responsibilities on the HELOC, and thus had jurisdiction to consider the HELOC issues, the court acted within its discretion in denying Felecia’s request for an evidentiary hearing on those issues. Frank’s counsel proved the lienholder foreclosed on the HELOC, ending both parties’ liabilities on the debt. Based on that turn of events, the court concluded the HELOC issues were moot. We conclude the court acted within its discretion in ruling no evidentiary hearing on the HELOC issues was required. (Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 526 [abuse of discretion standard of review applies to most family law orders].)

As for the forgery issue, the trial court ruled it was not a reserved issue in the judgment. That ruling seems a correct interpretation of the judgment, given the paragraph in which the court specifically “retain[ed] jurisdiction relative to the second loan [the HELOC]” concerned the financial details related to the marital residence, such as whether rental losses would be shared or the property had value exceeding its two mortgages. The forgery claim, leveled in the heat of litigation, would not seem to be the sort of thing the court would consider worth reserving in the judgment.

Nevertheless, we need not decide the jurisdictional issue because, again, the trial court acted within its discretion in refusing to hold an evidentiary hearing on the forgery claim. Frank had withdrawn the accusation of forgery. Moreover, the trial court had made no finding of forgery and aptly noted the mere allegation of forgery against Felecia, unproven and unlitigated, carries no weight. The claim per se did not pose the danger to Felecia’s reputation that she seemed to fear. Consequently, the court did not abuse its discretion in denying the hearing request.

We note a large portion of Felecia’s brief argues we should reverse the judgment because of purported trial court errors in the distribution and equalization of community assets and because of “extrinsic fraud, mistake or other disability.” These direct attacks on the judgment are clearly time-barred. (Rules of Court, rule 8.104.) Consequently, we need not discuss them.

 

III

DISPOSITION

The judgment is affirmed. Frank is entitled to his costs on appeal.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.