Filed 3/03/20 Papp v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

SHARON D. PAPP,

Petitioner,

v.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Respondent;

PAUL T. PAPP,

Real Party in Interest.

B294800

(Los Angeles County

Super. Ct. No. PD060070)

ORIGINAL PROCEEDINGS in mandate; petition for extraordinary writ. Jonathan L. Rosenbloom, Judge. Petition granted and remanded with directions.

Law Offices of Walter J. Damboise and Walter J. Damboise for Petitioner.

No appearance for Respondent.

Law Office of Donna M. Encinas for Real Party in Interest.

______________________________________________________

INTRODUCTION

After 29 years with real party Paul T. Papp (18 of them as his wife), petitioner Sharon D. Papp filed for divorce and sought spousal support. She submitted a request for an order invalidating the parties’ October 2000 premarital agreement, in which she had waived spousal support. She contended, inter alia, that her execution of the agreement had been involuntary. In declarations supporting and opposing petitioner’s request, the parties agreed petitioner was not represented by counsel during the execution of the agreement. The parties agreed on little else; real party disputed, inter alia, petitioner’s claims that she was never advised to seek counsel; that she was never informed real party was seeking a premarital agreement until the day before they executed it; and that she was never presented with the agreement itself until the very day they executed it, mere days before their wedding.

The trial court held a hearing on the enforceability of the agreement, during which the parties agreed that if the court held the agreement enforceable, the agreement’s terms would resolve all other issues. Petitioner’s counsel requested that the court receive live testimony from the parties, arguing the court needed to evaluate the parties’ credibility to resolve material issues of fact. Real party’s counsel opposed the request on the ground that the parties’ expected testimony would be a “he said she said.” The trial court ruled the agreement enforceable without receiving any live testimony, making any factual findings, or articulating its reasoning.

On appeal from the trial court’s minute order, petitioner contends the trial court prejudicially erred by refusing to receive live testimony before ruling that the parties’ premarital agreement was enforceable. Real party contends: (1) we lack jurisdiction over this appeal from an interlocutory order because petitioner obtained neither certification from the trial court nor leave from this court; (2) petitioner forfeited her contention of error; and (3) the trial court properly ruled the agreement was enforceable without receiving live testimony. In supplemental briefing we invited pursuant to Government Code section 68081, petitioner contends we should treat her appeal as a petition for an extraordinary writ.

We dismiss the appeal but exercise our discretion to treat the appeal as a petition for a writ of mandate. We conclude that petitioner preserved her contention of error, the trial court abused its discretion by refusing to receive live testimony, and the court’s error was prejudicial. We therefore issue a writ of mandate directing the trial court to vacate its order holding the premarital agreement enforceable and to hold a new hearing on the agreement’s enforceability, at which the court must receive live testimony from each party (if requested, and subject to exclusion under the rules of evidence) and may receive other evidence as permitted under governing law.

BACKGROUND

A. The Premarital Agreement and Dissolution Action
B.
Petitioner and real party met in 1989, began living together soon thereafter, and married 11 years later, on October 8, 2000. Five days before their wedding (on October 3, 2000), the parties executed a premarital agreement. The agreement stated the parties entered into it voluntarily. It further stated, “[The parties] acknowledge that they each have the right to be represented by separate and independent legal counsel. . . . [Petitioner] has declined to exercise her right to independent counsel and has represented herself.”

The agreement included a provision in which each party waived any right to spousal support in the event of divorce or separation. This waiver, however, included an acknowledgment that each party had been advised the waiver might be unenforceable.

In 2018, petitioner filed the instant petition for dissolution of the parties’ marriage, seeking spousal support. In his response to the petition, real party likewise requested dissolution, but opposed petitioner’s request for spousal support.

C. The Parties’ Conflicting Claims
D.
Along with her dissolution petition, petitioner filed a request for orders, including an order declaring the premarital agreement unenforceable. Petitioner submitted supporting declarations, in which she declared that she did not execute the premarital agreement voluntarily, and real party submitted an opposing declaration.

The parties’ declarations contradicted each other on many facts related to their execution of their premarital agreement. For instance, with respect to when real party first presented the agreement to petitioner, real party declared he presented it to her in September 2000 (the month before the wedding). He further declared that he and petitioner had discussed his desire for a premarital agreement “countless times” throughout the year preceding the wedding, and that they reviewed and discussed the agreement itself over a period of “more than a month before [their] wedding,” during which petitioner reviewed the agreement at least three times. In contrast, petitioner declared that only six days before the wedding (on October 2, 2000), real party informed petitioner for the first time that he had initiated the process of obtaining a premarital agreement, and that he would be taking her to his attorney’s office the next day to sign the agreement. The agreement was first presented to her the next day, and the parties executed it that same day.

The parties similarly contradicted each other regarding the advice petitioner had received. Real party declared that petitioner was advised to seek independent counsel when she received the agreement in September. In contrast, petitioner declared she was never advised to seek independent counsel, either before or during the execution of the agreement. Petitioner further declared that she received no explanation of the agreement’s effect and that she objected to the agreement, but executed it because real party said he would not “go through with the wedding” if she did not.

Finally, the parties disagreed regarding the burdens that would have been incurred had their wedding — scheduled to take place several days after the date of execution — been postponed for petitioner to seek counsel. Real party declared that the parties easily could have postponed their “casual” wedding, which lacked “the typical wedding fanfare” and was attended by “only one couple who were [petitioner’s] friends.” In contrast, petitioner declared that the “relatively expensive” wedding was attended by two couples and their children, for whom she had booked hotel rooms, and that she had additionally arranged for a church, preacher, florist, photographer, and reception brunch.

E. The Court’s Refusal to Receive Live Testimony
F.
The trial court held a hearing on the enforceability of the premarital agreement. At the outset of the hearing, the court announced a tentative opinion that the premarital agreement was enforceable, explaining in part that the agreement “recite[d] that [petitioner] had the opportunity to retain counsel to advise and represent her in the drafting of it . . . .” The court acknowledged that “other questions” remained, including “[h]ow quickly [petitioner] knew that [real party] wanted to enter into the agreement.” The court raised the possibility of continuing the matter because the court had not “really heard anything yet.”

Petitioner’s counsel, referencing factual issues that remained to be decided, requested that the court receive live testimony at a later evidentiary hearing. After hearing argument from real party’s counsel, who expressly relied on the court’s favorable tentative ruling to disclaim any request to present live testimony, the court welcomed argument from petitioner’s counsel regarding whether an evidentiary hearing was necessary. Petitioner’s counsel again argued that factual issues remained to be decided. The court, after hearing additional argument from real party’s counsel, expressed a view that “the threshold question” was whether petitioner had an opportunity to seek counsel. Petitioner’s counsel argued that if petitioner had been truthful in her declaration, the facts she declared would establish that her execution of the agreement was involuntary. The trial court acknowledged that petitioner’s counsel had identified “question[s] of fact,” but voiced concern for real party’s reliance on “the certainty that the prenup he signed would give him.”

Real party’s counsel argued that an evidentiary hearing was unnecessary because the parties’ testimony would be a “he said she said.” Petitioner’s counsel responded that the court “need[ed] some testimony” because the parties’ credibility was at issue, and the court would “deal with credibility” when it heard “all” the evidence.

At the conclusion of the hearing — without receiving live testimony, making factual findings, or articulating its reasoning — the court ruled that the premarital agreement was enforceable. The court reserved jurisdiction on remaining issues, including but “not limited to” attorney fees. The parties’ counsel had agreed that if the agreement was held valid, its terms would resolve all other issues. Referencing this agreement, petitioner’s counsel informed the court that petitioner would immediately appeal the ruling, and the trial court responded, “Okay.” Without seeking certification from the trial court or leave from the Court of Appeal, petitioner filed a timely notice of appeal from the court’s minute order.

DISCUSSION

Petitioner contends the trial court prejudicially erred by refusing to receive live testimony before ruling that the parties’ premarital agreement was enforceable. In supplemental briefing, petitioner contends we should treat her appeal from the trial court’s minute order as a petition for an extraordinary writ.

A. Appealability and Treatment as Writ Petition
B.
The trial court’s order holding the premarital agreement enforceable was not appealable. The order expressly reserved issues for later resolution, noting the reserved issues were “not limited to” a potential award of attorney fees. The order was therefore not a final judgment. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2019) ¶ 2:37 [“The general test of finality focuses on whether and to what extent issues remain to be decided”].) Instead, it was merely an order on an issue bifurcated for separate hearing. Such orders may be appealable in dissolution actions, but only where (1) the petitioner has obtained certification from the trial court and (2) the appellate court has accepted the appeal on the petitioner’s motion. (See Code Civ. Proc., § 904.1, subd. (a)(10) [authorizing appeal from order made appealable by Family Code]; Fam. Code, § 2025 [“if the court [in a dissolution, nullity, or separation proceeding] has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate”]; Cal. Rules of Court, rule 5.392(d)(1) [“If the certificate is granted, a party may . . . file in the Court of Appeal a motion to appeal the decision on the bifurcated issue”].)

Here, petitioner neither obtained certification from the trial court nor filed a motion in this court. Accordingly, the order was nonappealable, and we must dismiss the appeal. (See In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1431-1434 [court was required to dismiss appeal from order on bifurcated issues involving division of assets, where certification-and-transfer procedure was not followed]; In re Marriage of Doherty (2002) 103 Cal.App.4th 895, 898 (Doherty) [same, regarding order characterizing mortgage subsidy as community property]; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 404 (Ellis) [same, regarding order characterizing medical subsidy as community property].)

We exercise our discretion, however, to treat the appeal as a petition for an extraordinary writ within our original jurisdiction. (See Doherty, supra, 103 Cal.App.4th at 898 [exercising discretion to treat dismissed appeal as writ petition]; Ellis, supra, 101 Cal.App.4th at 404 [same].) In the trial court, the parties agreed that if the premarital agreement was held enforceable, the agreement’s terms would resolve all other issues in the case. For this reason, the trial court no doubt would have certified its order had petitioner’s counsel requested certification. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2019) ¶ 16:277 [“As a practical matter, certification for immediate appeal will almost certainly be granted (and court of appeal review accepted) as to those ‘threshold’ or ‘pivotal’ interim rulings likely to determine the course of subsequent litigation in the case (e.g., the validity of a premarital agreement that in turn would dictate the characterization of property of the marriage)” (italics added)].) Moreover, as explained post, we conclude the court’s order on this dispositive issue was marred by prejudicial error. It would be a waste of time and judicial resources to decline to correct the error until petitioner reraises the issue on an appeal from the final judgment. (See Cal. Rules of Court, rule 5.392(h) [noncompliance with certification-and-transfer procedure does not preclude review of decision on bifurcated issue upon appeal from final judgment]; In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 714, fn. 1 [treating appeal as petition for writ of mandate, where appeal had been fully briefed and presented dispositive issues of continuing interest, rendering mere dismissal “unnecessarily dilatory and circuitous”], disapproved on another ground by Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113.)

Treating the appeal as a petition for a writ of mandate, we turn to the merits of petitioner’s contention of error and of real party’s contention that she forfeited that contention.

C. Merits
D.
Petitioner contends the trial court prejudicially erred by refusing to receive live testimony before ruling on her request for an order declaring the parties’ premarital agreement unenforceable. Real party contends petitioner forfeited this contention.

1. Principles
2.
A premarital agreement is unenforceable if the party against whom enforcement is sought proves she did not execute the agreement voluntarily. (Fam. Code, § 1615, subd. (a)(1).) Under the standards applicable to agreements executed before 2002, “[p]roof that a premarital agreement was entered into involuntarily may be shown through a number of factors . . . includ[ing]: the coercion that may arise from the proximity of execution of the agreement to the wedding, or from surprise in the presentation of the agreement; the presence or absence of independent counsel or of an opportunity to consult independent counsel; inequality of bargaining power; whether there was full disclosure of assets; and the parties’ understanding of the rights being waived under the agreement or at least their awareness of the intent of the agreement.” (In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1052-1053 (Hill), citing In re Marriage of Bonds (2000) 24 Cal.4th 1, 18 (Bonds); see also Bonds, at 26, 32 [recognizing relevance of “subtle coercion,” as occurred in out-of-state case in which party first received agreement “too close to the wedding, with passage booked on an expensive cruise”]; id. at 32 [recognizing relevance of trial court’s finding that party against whom enforcement was sought “never expressed any reluctance to sign the agreement”].) “[T]he presence or absence of a particular factor is not dispositive.” (Hill, supra, at 1053.)

“At a hearing on any . . . notice of motion brought pursuant to [the Family Code], absent a stipulation of the parties or a finding of good cause . . . , the court shall receive any live, competent testimony that is relevant and within the scope of the hearing . . . .” (Fam. Code, § 217, subd. (a); see also Cal. Rules of Court, rule 5.92(a)(1)(A) [in family law proceedings, “request for order” has same meaning as “notice of motion”].) “In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217: [¶] (1) Whether a substantive matter is at issue — such as . . . spousal support . . . ; [¶] (2) Whether material facts are in controversy; [¶] (3) Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses; [¶] (4) The right of the parties to question anyone submitting reports or other information to the court; [¶] (5) Whether a party offering testimony from a non-party has complied with Family Code section 217(c) [requiring any party planning to call a non-party to file a witness list]; and [¶] (6) Any other factor that is just and equitable.” (Cal. Rules of Court, rule 5.113(b).)

3. Forfeiture
4.
Petitioner did not forfeit her contention that the trial court erred by refusing to receive live testimony. As recognized in People v. Gibson (1994) 27 Cal.App.4th 1466, from which real party quotes, a principal purpose of forfeiture doctrine is to encourage presentation of issues to the trial court, preserving the trial court’s ability to avoid potential errors and thereby conserving judicial resources that might otherwise be spent responding to errors only after the fact. (See id. at 1468-1469; People v. Butler (2003) 31 Cal.4th 1119, 1128 [“judicial economy is a principal rationale of the forfeiture doctrine”].) Here, this purpose was satisfied. During the hearing on the enforceability of the premarital agreement, the trial court raised the possibility of continuing the matter because it had not “really heard anything yet,” and expressly welcomed argument from petitioner’s counsel regarding whether an evidentiary hearing was necessary. Petitioner’s counsel repeatedly referenced factual issues that remained to be decided and requested that the court receive live testimony to evaluate the parties’ credibility. Real party’s counsel unwittingly supported this request by characterizing the parties’ expected testimony as a “he said she said,” suggesting a credibility contest regarding material facts. (See Cal. Rules of Court, rule 5.113(b)(2)-(3) [factors court must consider in making finding of good cause to refuse to receive live testimony include existence of “material facts in controversy” and need for live testimony “to assess the credibility of the parties”].) The court was on notice of the potential error. We conclude petitioner’s counsel preserved the contention of error for appellate review.

The cases on which real party relies are distinguishable. (See In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1129-1131 (Binette) [appellant never requested that court receive live testimony or otherwise indicated that live testimony was necessary, instead manifesting “implicit agreement . . . to rely on the documents submitted, unless the court directed otherwise”]; Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687 [appellant never requested that court receive live testimony or indicated he wanted to cross-examine opposing party].)

5. Prejudicial Error
6.
The trial court abused its discretion by implicitly finding good cause to refuse to receive live testimony. (See Fam. Code, § 217, subd. (a) [court shall receive live testimony “absent a stipulation of the parties or a finding of good cause”].) Three of the six factors the court was required to consider weighed against a finding of good cause. First, substantive matters, including spousal support, were at issue. (See Cal. Rules of Court, rule 5.113(b)(1) [court must consider “[w]hether a substantive matter is at issue — such as . . . spousal support”].) Second, the parties’ declarations were in sharp conflict with respect to facts that were material to the issue of voluntariness: real party disputed petitioner’s claims that she was never advised to seek counsel; that she was unaware he was seeking an agreement until the day before they executed it; and that she was not presented with the agreement itself until the day they executed it, mere days before their wedding. (See Cal. Rules of Court, rule 5.113(b)(2) [court must consider existence of “material facts in controversy”]; Hill, supra, 202 Cal.App.4th at 1052-1053 [describing factors relevant to voluntariness]; Bonds, supra, 24 Cal.4th at 26, 32 [same].) Third, this material conflict in the documentary evidence established a need to assess the parties’ credibility through receiving and observing their live testimony. (See Cal. Rules of Court, rule 5.113(b)(2)-(3) [court must consider need for live testimony “to assess the credibility of the parties”].) These three factors weighed strongly against a finding of good cause to refuse to receive live testimony, and there is no indication in the record that any of the remaining three factors counterbalanced that weight. (See id., rule 5.113(b)(4)-(6) [court must also consider parties’ right to question anyone submitting information to court, parties’ compliance with statutory requirement to file witness list if planning to call nonparty witness, and “[a]ny other factor that is just and equitable”].) We therefore conclude that the trial court’s implicit finding of good cause to refuse to receive live testimony was an abuse of discretion.

The trial court’s error in refusing to receive the parties’ live testimony was prejudicial. Had the court received and credited testimony from petitioner corresponding to the allegations in her declarations, her testimony would support findings that she lacked independent counsel (as real party conceded); she was never advised to seek counsel; she was never informed of the effect of the agreement; she objected to the agreement before executing it; and she executed the agreement on the day it was first presented to her, mere days before the parties’ “relatively expensive” wedding, for which she had already booked hotel rooms and arranged for a church, preacher, florist, photographer, and reception brunch. These findings would constitute substantial evidence that petitioner’s execution of the agreement was not voluntary. (See Hill, supra, 202 Cal.App.4th at 1052-1053; Bonds, supra, 24 Cal.4th at 26, 32.) The inverse is also true: if the court received and credited testimony from real party corresponding to the allegations of his declaration, his testimony would constitute substantial evidence that petitioner’s execution of the agreement was voluntary. We hold only that Family Code section 217 required the trial court to evaluate the credibility of the parties’ competing allegations through receiving their live testimony. The court may find petitioner’s execution of the agreement voluntary even after receiving the parties’ live testimony, but the chance that it will find otherwise is more than abstract, and thus sufficient to warrant reversal. (See Cal. Const., art. VI, § 13 [trial court error, including improper rejection of evidence, warrants reversal where error has resulted in miscarriage of justice]; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801 [error has resulted in miscarriage of justice where there is “‘a reasonable chance, [meaning] more than an abstract possibility’” that appellant would have obtained more favorable result in error’s absence].)

The cases on which real party relies are inapposite. In Howell, the trial court received live testimony before ruling that a premarital agreement had been executed voluntarily, and the Court of Appeal merely reviewed the ruling for substantial evidence, deferring to the trial court’s resolution of credibility conflicts. (See Howell, supra, 195 Cal.App.4th at 1065-1066, 1078-1080.) The Howell court did not address any alleged error in refusing to receive live testimony. Nor did our Supreme Court in Pendleton, supra, 24 Cal.4th 39. There, the court merely held that premarital waivers of spousal support are not “per se” unenforceable “when entered into voluntarily . . . .” (Id. at 53-54, italics added.) As Justice Kennard noted in dissent, the majority declined to articulate “guidelines for the bench and bar explaining when, if ever, such waivers are enforceable.” (Id. at 59 (dis. opn. of Kennard, J.).)

In sum, the trial court prejudicially erred by refusing to receive live testimony from the parties before ruling that petitioner had executed the premarital agreement voluntarily. We therefore issue a writ of mandate directing the court to vacate its order and hold a new, procedurally proper hearing.

DISPOSITION

A writ of mandate shall issue, directing the trial court to vacate its order holding the premarital agreement enforceable and to hold a new hearing on the agreement’s enforceability, at which the court shall receive live testimony from each party (if requested, and subject to exclusion under the rules of evidence) and may receive other evidence as permitted under governing law. The appeal is dismissed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.