Filed 8/11/20 Marriage of Shinozuka and Feng 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MASANOBU SHINOZUKA and MARIA FENG.

MASANOBU SHINOZUKA,

Respondent,

v.

MARIA FENG,

Appellant.

G057139

(Super. Ct. No. 17D004015)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Reversed and remanded with directions.

Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Appellant.

No appearance for Respondent. 

INTRODUCTION

This is the second appeal dealing with the marriage of Masanobu Shinozuka and Maria Feng. In the first appeal, brought by Feng, we determined the family law court had subject matter jurisdiction to hear and decide the divorce proceedings.

While the first appeal was pending, two important events occurred. The family court entered a nunc pro tunc status divorce judgment dated September 20, 2018, and Shinozuka died on November 5, 2018.

The present appeal concerns the sufficiency of the evidence of Shinozuka’s mental competency and of irreconcilable differences, evidence supplied at trial not by Shinozuka himself but by his guardian ad litem. Feng asserts that this evidence was insufficient and therefore the dissolution judgment should be reversed. Furthermore, in light of Shinozuka’s death, she contends the divorce proceeding must now be dismissed.

Most of the trial court’s rulings pass appellate review. There is, however, one procedural glitch, easily remedied. The court’s conclusions concerning Shinozuka’s competency and concerning irreconcilable differences rest on sufficient evidence, and we do not reweigh evidence. The court also acted within its inherent power when it entered the nunc pro tunc judgment granting Shinozuka’s request for a divorce. The only possible problem is the court’s entry of a judgment before a personal representative for the late Shinozuka had been appointed. We return the matter to the trial court for the appointment of the personal representative, his or her substitution into the divorce proceeding (if neither of these actions has occurred), and reissuance of the nunc pro tunc judgment of September 20, 2018.

 

FACTS

A detailed recitation of the underlying facts may be obtained from our earlier opinion. Briefly, Shinozuka was a retired professor living in Newport Coast with his second wife, Feng. His daughter and son (adult children of his first marriage) moved him to New Jersey in April 2015. Shortly thereafter, Shinozuka filed for divorce in Orange County Superior Court.

In response, Feng filed an elder abuse case, claiming the children had moved Shinozuka to New Jersey while he was suffering from dementia; a conservatorship case, asking to be appointed his conservator; and a motion to quash the divorce proceedings due to his lack of mental competence.

In April 2018, Feng filed a second motion to quash, this time for lack of subject matter jurisdiction. The denial of this motion formed the basis of the first appeal. We affirmed the order denying the motion in an opinion issued on March 10, 2020.

In the meantime, however, the divorce was moving along. In May 2018, Shinozuka asked in view of his age (87) and his desire to “go on with [his] life as a single person” to bifurcate the trial as to status only. He maintained that “[i]rreconcilable differences have arisen in the marriage that has [sic] led to a complete breakdown of our marriage” and that “[t]here is no possibility of reconciliation.”

The bifurcated trial took place between September 10 and 20, 2018. As of the start of trial, Shinozuka was hospitalized in Orange County in a medically induced coma after surgery and was unable to attend. A guardian ad litem, John Yasuda, was appointed for him at the beginning of trial. Yasuda testified that Shinozuka repeatedly expressed his desire for a divorce. The court found this testimony credible.

At the trial’s conclusion, on September 20, the court ruled Shinozuka had the mental capacity to seek a divorce at the time the petition was filed and had expressed the same intention as late as August 2018. Finding that he was competent when he filed for divorce and that he had not changed his mind, the court granted a status only divorce.

Feng filed a request for a statement of decision on September 26, 2018. On October 31, the court entered an order explaining that the request had not reached the relevant courtroom until October 22 and giving Shinozuka 10 days to file objections. Shinozuka’s counsel filed objections on November 13, 2018.

On November 30, 2018, after Shinozuka’s death on November 5, the court ordered the judgment of dissolution, status only, to be entered nunc pro tunc as of September 20, 2018. Feng has appealed from the November 30, 2018, judgment.

On December 13, Feng filed an ex parte request for an extension of time to file a proposed statement of decision, which was granted. Her proposed statement of decision is dated February 4, 2019, but it was not filed until March 22.

On March 15, 2019, the court held a hearing on other issues – such as attorney fees, appointment of a receiver, and Feng’s deposition – that remained unresolved. The court ruled that it would defer to the probate court to appoint a special representative for the divorce, and it stayed further proceedings until this appeal was decided and until an appointed personal representative asked to be substituted into the family law matter.

On April 2, 2019, the court issued an order regarding Feng’s proposed statement of decision, filed on March 22. The court found it “unacceptable,” and ordered petitioner (Shinozuka) to file a proposed statement of decision within 10 days. The court gave Feng five days to file objections.

Shinozuka filed a proposed statement of decision, and Feng moved to strike it on the grounds that no personal representative or successor in interest had been substituted into the divorce proceedings.

The trial court filed a final statement of decision on April 29, 2019. In the statement, the court denied Feng’s pretrial motion, filed on August 21, 2018, to dismiss for lack of mental capacity, noting she had already made these same arguments in a prior motion to dismiss, which had been denied. The court found that Shinozuka had capacity at all relevant times and found Yasuda’s testimony credible. The court ruled that it had sufficient evidence of irreconcilable differences, based on Shinozuka’s petition and amended petition filed in May 2017, his testimony at deposition, and the conversations with Yasuda in May, July, and August 2018. Shinozuka had signed a petition “stating that irreconcilable differences arose causing an irremediable breakdown of the marriage relationship and he continued to express it at regular intervals throughout the proceeding based on Mr. Yasuda’s testimony.” “The court finds that there was a constant belief from [Shinozuka] that the marriage was broken. [Shinozuka] was competent and wanted out in April 2017, and based on Mr. Yasuda’s testimony, that he was competent and wanted out as late as July 3, 2018, and he wanted it done as soon as possible, and on August 27, 2018 he was competent and wanted out when he reiterated he wanted a dissolution as soon as possible.”

On the same day (April 29), the court issued an order stating, “The court reviewed petitioner’s proposed statement of decision. It correctly states the procedural history of the case, the evidence presented to the court on the issue of petitioner’s capacity to dissolve the marriage, the court’s findings on that issue, and the court’s ruling, with one amendment. . . .” The court noted that Feng had not objected to the proposed statement but had instead moved to strike it. The court declined to rule on the motion to strike at that time. On May 31, 2019, the court denied the motion to strike the statement of decision.

DISCUSSION

Feng has identified two issues on appeal. First, the evidence at the September 2018 trial was insufficient to support an order terminating the marriage. Second, upon Shinozuka’s death, the court lost jurisdiction to make any further orders in the dissolution action, including jurisdiction to enter judgment nunc pro tunc to a date before Shinozuka’s death. In addition, the court could not proceed to enter a judgment until a personal representative for Shinozuka was appointed.

I. Sufficiency of the Evidence

Feng takes two positions with respect to sufficiency of the evidence. First, evidence of Shinozuka’s mental capacity to participate in divorce proceedings was lacking, and, second, the evidence of his desire to end the marriage was insufficient. We use the substantial evidence standard to review this challenge to the sufficiency of the evidence.

A. Mental Competence

Feng argues that Shinozuka lacked the mental competence to file for divorce and the continuing mental competence necessary to see the divorce through to judgment. This court dealt with a similar question of lack of mental competence in In re Marriage of Greenway (2013) 217 Cal.App.4th 628 (Greenway.) In Greenway, the husband, who was seeking the divorce, had some degree of dementia, and the wife argued he lacked the mental capacity to understand what he was doing. We held that “mental capacity can be measured on a sliding scale, with marital capacity requiring the least amount of capacity, followed by testamentary capacity, and on the high end of the scale is the mental capacity required to enter contracts. The burden of proof on mental capacity changes depending on the issue; there is a presumption in favor of the person seeking to marry or devise a will, but not so in the context of a person executing a contract.” (Id. at p. 639.) “[W]e conclude the mental capacity required to end one’s marriage should be similar to the mental capacity required to begin the marriage. As discussed above, the threshold is low.” (Id. at p. 643.)

Feng argues the appointment of a guardian ad litem shows that Shinozuka lacked the mental capacity to prosecute a divorce. But in Greenway, we observed that a person who has a conservator could still have the mental capacity to seek to end a marriage. (Greenway, supra, 217 Cal.App.4th at p. 641; see also In re Marriage of Higgason (1973)10 Cal.3d 476, 484 disapproved on other grounds, In re Marriage of Dawley (1976) 17 Cal.3d 342 [divorce may be sought by party under conservatorship] (Higgason).) In other words, the mental capacity threshold for ending a marriage is lower than the capacity to participate in litigation. Testamentary capacity is presumed, and, under Greenway, marital capacity requires even less than that. “[A] [divorce] proceeding may be brought on behalf of a spouse under conservatorship by and through his or her guardian ad litem, provided it is established that the spouse is capable of exercising a judgment, and expressing a wish, that the marriage be dissolved on account of irreconcilable differences and has done so.” (Higgason, supra, 10 Cal.3d at p. 483.) Like the wife in Higgason, Shinozuka signed and verified a petition for dissolution and his deposition showed that he desired a dissolution of the marriage. (Id. at pp. 483-484.)

Moreover, Yasuda was appointed as a guardian ad litem, not because Shinozuka lacked mental capacity in a general sense, but because when trial began he was under heavy sedation and recovering from surgery. In light of his advanced age and fragile health, further delay was not desirable, at least from his point of view. At some point during the trial, he regained consciousness and was able to interact with Yasuda during the latter’s daily visits.

Feng also argues that mental competence at the outset is not sufficient. The petitioning party must also maintain competence throughout the proceedings, citing In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 540-541. The court found, based on Yasuda’s testimony, that Shinozuka had the requisite – low – level of capacity throughout the trial. Yasuda testified that Shinozuka responded to him when he visited him on September 13, that he exhibited a sense of accomplishment when he was able to get out of bed (with assistance), that he was eating the Japanese food Yasuda brought to the visit, that they were laughing together. The court had sufficient evidence upon which to base a conclusion of continued competence. “[T]he determination of a person’s mental capacity is fact specific[.]” (Greenway, supra, 217 Cal.App.4th at p. 639.) The court based its findings of sufficient and continuing capacity on Yasuda’s testimony, which the court found credible. We do not reweigh evidence, and we do not reassess credibility.

B. Irreconcilable Differences

The trial court based its finding of irreconcilable differences on the petition, filed in May 2017, Shinozuka’s deposition, and Yasuda’s testimony, especially the testimony that in May, July, and late August 2018, Shinozuka expressed his desire that the divorce go forward . . . and quickly. Trial started on September 10, 2018, less than two weeks after the last of these expressions. The court could reasonably infer from Yasuda’s testimony that Shinozuka’s desire to end his marriage continued through trial.

Feng argues Yasuda’s testimony regarding Shinozuka’s desire for a divorce was insufficient and if his testimony is disregarded, there was no evidence of irreconcilable differences. Feng appears to be arguing that Yasuda could not be both a witness and a guardian ad litem, that the court had to hear from Shinozuka himself in order to properly determine whether irreconcilable differences existed, and that the court had to have testimony regarding the nature of the differences, not just their existence.

Feng cites McClintock v. West (2013) 219 Cal.App.4th 540 (McClintock), regarding Yasuda’s role as guardian ad litem. She asserts that, under McClintock, he did not fulfill his role, which was not to be an advocate, but rather to represent his charge’s best interests, not merely to reflect his interests.

McClintock is inapposite. The issue in that case was whether a ward may sue a guardian ad litem for negligence or whether the guardian enjoys quasi-judicial immunity. (McClintock, supra, 219 Cal.App.4th at p. 543.) In the course of ruling in favor of immunity, the court stated, “[W]hile a guardian ad litem’s role is as a representative of the ward, he or she does not act as an advocate, and does not simply represent the ward’s wishes. ‘The court is, in effect, the guardian of the minor and the guardian ad litem is but an officer and representative of the court. [Citation.]’ [Citation.]” (Id. at p. 549.) That is, a guardian is not an advocate, like a lawyer – who can be sued for negligence – but is more like a judge, who cannot. McClintock is not authority for the argument that a guardian ad litem cannot testify as a witness from his own experience. And it certainly does not establish that Yasuda was not representing Shinozuka’s best interests when he testified about his dealings with the elderly man.

Feng also supplies no authority for the argument that Shinozuka had to appear in court himself to testify about irreconcilable differences and irremediable breakdown of the marriage. The wife in Higgason was unable to appear in court; her deposition testimony, coupled with her conservator’s information about her infirmity, was acceptable evidence. (Higgason, supra, 10 Cal.3d at pp. 481-482.)

As for Feng’s last objection, she cites no authority for the argument that the court has to have detailed knowledge of the nature of the differences to grant a divorce. But even if such evidence was necessary, the court had it. Yasuda testified that Shinozuka expressed his feeling of being “betrayed” by Feng, after he had done so much to advance her career.

II. Jurisdiction

Feng argues that the trial court was without jurisdiction to enter a nunc pro tunc status judgment after Shinozuka’s death on November 5, 2018. She argues the judgment was not yet final because there were “further proceedings” to be had. By “proceedings” she means the filing of a statement of decision.

Whether the court has the jurisdiction to enter a judgment nunc pro tunc is a question we review independently. (See In re Marriage of Rosenfeld & Gross (2014) 225 Cal.App.4th 478, 485.) Whether it exercised such jurisdiction correctly we review for abuse of discretion. (Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 239.)

In re Marriage of Mallory (1997) 55 Cal.App.4th 1165 (Mallory) addresses this issue. In Mallory, the husband died after trial and the submission of the last of the written arguments, but before the court entered the minute order dissolving the marriage. Counsel for both parties stipulated the court had no jurisdiction to enter the dissolution order. (Id. at p. 1168.)

Six years later, the husband’s executor sought to set aside the stipulation and have judgment of dissolution entered nunc pro tunc as of a date before the husband’s death. The court denied the request for a nunc pro tunc judgment, but entered an order dissolving the marriage as of six years after the husband’s death. The six-year post-death order was set aside, but the court also denied the executor’s second motion for the nunc pro tunc judgment of dissolution, and the executor appealed. (Mallory, supra, 55 Cal.App.4th at pp. 1168-1169.)

Relying on Code of Civil Procedure section 669 and the court’s inherent power, the reviewing court held the trial court had the authority to issue a nunc pro tunc judgment to a date before the husband’s death and sent the case back for a hearing on whether to enter such a judgment. (Mallory, supra, 55 Cal.App.4th at p. 1183.) “The policy behind [Code of Civil Procedure] section 669 was that if the parties had done everything they could to put the case in a posture where it was ready for final rendition of judgment, a court delay should not be used to prejudice the parties.” (Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1404-1405.) “A case is ‘submitted’ on the date when ‘either of the following first occurs: (1) . . . the court orders the matter submitted; or (2) . . . the final paper is required to be filed or . . . argument is heard, whichever is later.’ [Citations.]” (Mallory, supra, 55 Cal.App.4th at p. 1170.)

In this case, the matter was submitted and the final argument was heard on September 20. The delay was attributable in part to the mislaying of Feng’s request for statement of decision for nearly a month. The court took responsibility for “inadvertent negligence” in failing to “make the proper order at the correct time.” “Where the delay is the result of some action or inaction on the part of the court itself, entry of a nunc pro tunc judgment in order to protect the interests of one or all parties is mandated: ‘“‘A court will always exercise [its inherent] authority when it is apparent that the delay in rendering the judgment, or a failure to enter it after its rendition, is the result of some act or delay of the court, and is not owing to any fault of the party making the application.

. . .’”’ [Citations.]” (Mallory, supra, 55 Cal.App.4th at p. 1179-1180.)

Feng argues the decision rendered in the trial court was a tentative decision, not a final judgment. A review of the reporter’s transcript of the proceeding on September 20, 2018 (the last day of trial), undermines this argument. The court ruled from the bench, prefacing its remarks by stating, “We’re about to take our afternoon recess so I can woefully [sic] organize my thoughts before I give my tentative ruling in the [Code of Civil Procedure section] 632 sense.” After reviewing the evidence and giving its conclusions, however, the court stated, “The court will find that based on the evidence in this matter . . . that irreconcilable differences arose in the marriage creating an irremediable breakdown in the marriage relationship. The court will order that a judgment of dissolution be entered.” That does not sound tentative.

Even if the judgment of September 20 had been a tentative one, the trial court would still have had the power to enter judgment nunc pro tunc. In fact, “[T]he announcement of a decision, even a tentative one, is not critical to the trial court’s inherent power to render judgment notwithstanding the death of a party.” (Mallory, supra, 55 Cal.App.4th at p. 1171.)

Feng further argues she still had the right to get a statement of decision and, more importantly, to object to the statement of decision. Therefore the judgment was not final, and the court lost jurisdiction after Shinozuka’s death. Code of Civil Procedure section 669 provides otherwise. But beyond that, the court has the inherent power to render judgment nunc pro tunc, “to see that the party shall not suffer by the delay.” (Fox v. Hale & Norcross Silver Mining Co. (1895) 108 Cal. 478, 481.) Moreover, Feng now has a statement of decision, after submitting a proposed statement that the trial court reasonably found “unacceptable.”

However, Feng objected to the entry of judgment in the absence of a personal representative for Shinozuka. The resolution of this issue ultimately depends upon whether the court’s decision of September 20, 2018, was a tentative one. Although the decision as represented in the reporter’s transcript appears definite, the minute order states, “Marital status shall terminate upon the filing of the formal Judgment.” Thus it seems the court contemplated a written judgment when it made its ruling.

We need not decide whether the ruling on September 20 was sufficiently final for the entry of a nunc pro tunc judgment in the absence of a personal representative. Even if it was not, the problem is easily remedied. Following the procedure outlined in Mallory, supra, 55 Cal.App.4th at p. 1183, and in Scoville v. Keglor (1938) 27 Cal.App.2d 17, 34, we return the matter to the trial court to comply with the formalities. If a personal representative has not been appointed yet, one must be appointed, and that person must substitute into the family law matter if this has not already occurred. The court may hold a hearing on the appointment and substitution, if necessary, and after these matters have been disposed of, a valid nunc pro tunc judgment may be entered.

We have already determined the trial court had, at the very least, the inherent power to enter a nunc pro tunc judgment and that it had the proper grounds to exercise its discretion in so doing. If a personal representative has already been appointed and has substituted in, the parties can stipulate to the entry of the nunc pro tunc judgment and save themselves the expense of another hearing.

DISPOSITION

The judgment is reversed. The matter is returned to the trial court for the sole purpose of allowing a personal representative of Masanobu Shinozuka to be appointed (if one has not already been appointed) and to substitute into the family law matter (if he or she has not already done so), at which time the status judgment may be entered nunc pro tunc as of September 20, 2018. Costs to respondent.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.