Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RID185786, Jeffrey Prevost, Judge.
Hosford & Hosford and Valerie Ryall Hosford for Appellant.
Kimberly J. Laliberte for Respondent.
OPINION
MILLER, J.
INTRODUCTION
In this family law case, the trial court awarded the family home to the wife at a value ascribed to it by the court nearly three years earlier. Asking us to vacate that order, the husband contends the trial court erred in refusing to revalue the property at the time of its award, in accordance with Family Code section 2552, particularly because the substantial increase in the value of the house was due to market conditions. We agree with the husband and grant the relief requested.
All further statutory references will be to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2000, after eight and one-half years of marriage and three children, Iraj Nasrolahi (husband) and Saghi Nasrolahi (wife) separated. Husband, an electrical engineer, operated a consulting business; wife was a speech pathologist. Their community estate consisted primarily of the family residence and husband’s business.
In February 2001, the parties signed a handwritten stipulation providing for joint legal custody of the children, with primary physical custody to wife. In January 2002, a judgment was entered terminating the parties’ marital status and incorporating the terms of the February 2001 stipulation. The following month, a stipulated judgment on reserved issues was entered. Among other things, this judgment set forth additional terms with regard to custody and visitation; valued and disposed of the parties’ furniture, furnishings, and automobiles; and confirmed certain of their separate property assets, with the court reserving jurisdiction over all remaining issues.
A trial date was set for March 11, 2002. On the first day of trial, an “extensive discussion” took place in chambers between the court and counsel. The next day, stipulations were recited on the record with regard to child and spousal support, and visitation. In addition, the parties stipulated that written real estate appraisals obtained by both parties and already submitted to the court would be received in evidence without objection or further foundation. The remainder of that day and the next were devoted to testimony regarding child custody issues.
When trial resumed on May 6, 2002, the parties confirmed that they wished to have a statement of decision. The court and counsel also acknowledged that a request had previously been made for a valuation of the family residence, which had been taken under submission, although the court had apparently overlooked it. The remainder of that day was devoted to issues of custody and value of husband’s business. By the end of the day, the only issue which remained was that of childcare expenses, which the court indicated would take another 30 minutes or so. The court thus continued the matter to a later date for that purpose, confirming that the other issues would be deemed submitted so that it could “get [the parties] a ruling.”
We note that the March 12, 2002, minute order, which enumerated the various stipulations recited on the record, fails to mention the stipulation regarding the real estate appraisals.
The court’s minute order states: “All issues except child care expenses taken under submission.”
On August 12, 2002, the court rendered a statement of decision, setting forth factual findings valuing the family residence at $273,500 and the business at $60,000. At the conclusion of its decision, the court purported to make orders setting forth those valuation figures; however, nothing was said about disposition of those assets.
The continued date for the trial was postponed several times and eventually proceeded on October 23, 2002. Husband, who was no longer represented by counsel, appeared in court on his own behalf. At the outset, the following colloquy took place between wife’s attorney, husband, and the court:
[WIFE’S ATTORNEY]: “First issue that we have before you this morning—my understanding was when we did the value of the house my client was getting the house. We needed to get the dollar amount. That is part of what we did in the trial. [Husband] has a different take on it now. My understanding is he believes that the house has a much higher value because of the increase of the market as of late. He feels he wants the house sold. Now he wants half of the proceeds from the sale of the house. I tried to explain, no, that is not—we had the trial on it to get the dollar amount established because [wife] was getting the house. That is a done issue. I’m sure he would like to speak to you on that issue.
THE COURT: “[Husband]?
[HUSBAND]: “Yes, Your Honor. My understanding was that the price of the house was not determined and we could not agree on a price. The only reason we came to the trial was to determine what the exact amount is and the distribution as to who gets the house, or whether it goes for sale or not is based on that number that we will decide afterwards. My take on that is fine. If she wants to keep the house, I don’t have a problem with that. However, I believe I am entitled to a fair market value of the house. It’s not my fault, Your Honor, that the value of home was been increasing steadily, and I still believe it is to the best of our interest financially for both of us to sell the house and divide the equity to pay all the debts and perhaps move into something smaller for her and provide me with some cash flow so I can buy something small to live in. [¶] I had the appraisal updated prior to the decision of—your statement was issued and given for that time. The beginning of August the value of the house had increased to $315,000. All I am saying is whatever we do with the house I want it to be a fair distribution of equity.”
In response, wife’s counsel stated: “We had a date that we established back in March or April . . . that was the dollar amount she was going to get the house at. . . . The bottom line is we had an agreement. She was getting the house. Otherwise, we wouldn’t have had a trial on the dollar amount, on what the buy-out would be. [¶] The simple fact is we sell the house under the circumstances when we didn’t have the agreement that she was getting it, then there wouldn’t be any issue as to the dollar amount. It’s very clear and very obvious from what we did she is getting the house. We had to have a dollar amount so we could do the offsets. . . .”
Husband asserted, “[t]here was never any agreement that we’re coming in for the price to be figured out that she takes the house. . . .”
The court, noting that “[t]he only reason to try the case was to establish a value, to award [wife] a certain value[,]” indicated it “had the advantage of appraisals or valuations prepared by both parties and I used that, and only that, to come to a determination as to what appeared to be the fair market value.”
In reply, husband said he had “no argument if that is the case.” The court said it recalled that husband’s former attorney had represented to the court at that time “we would go forward on the issue of the value of the house.” The court later told husband “we’re not going to readdress at this time the issue of the value or the sale of the house.”
The record reflects two different versions of the minutes for October 23, 2002. The first is silent with regard to either the family residence or the business. The second, marked “amended,” adds the following paragraph: “In addition, the value of the family residence was argued at time of trial and is awarded to [wife] at that value. The value of the family business was argued at time of trial and is awarded to [husband] at that value.”
Husband eventually retained new counsel who, in March 2003, filed a motion to reopen trial on the issue of the value of the family residence. In support of his motion, husband acknowledged that the court had, in August 2002, accepted the valuation of husband’s expert, although the value had increased since that date. Thus, since judgment had not yet been entered, he asked that the matter be reopened to permit him to present evidence of the current value. In a written response, wife asserted that the matter had already been determined. Husband replied, “The statement of . . . decision states the value of the house, but does not state what is to happen to the house.” A hearing was scheduled for May 8, 2003.
On March 26, 2003, wife filed an order to show cause in which she asked the court to order husband to sign an interspousal transfer deed with regard to the family residence. The matter was to be heard on May 8, 2003, in conjunction with husband’s motion. In response to wife’s assertion that she was awarded the property on August 12, 2002, husband insisted that she “was not awarded the house in the court’s Statement of Decision issued August 12, 2002. The court was asked to determine the fair market value of the house at trial which started March 12, 2002[,] and continued March 13, 2002[,] and May 6, 2002. The court did not determine who was to receive the house and all offsets have not yet been determined. No judgment on reserved issues has been entered. [¶] If I am required to sign a deed now, [wife] will receive a windfall. . . . Now, the house is worth at least another $45,000.”
Hearing on the motion and the order to show cause was held on May 22, 2003. The court took the matter under submission and on July 8, 2003, by minute order, rendered its ruling denying husband’s motion to reopen trial. The court reasoned that In re Marriage of Hahn (1990) 224 Cal.App.3d 1236 (Hahn), a case cited by wife’s counsel, was analogous. Wife’s counsel was ordered to prepare an order, which he did, and the court signed that order on August 1, 2003.
In Hahn, after trial but before entry of judgment, a husband, who had stipulated to the value of the family residence, moved to reopen the trial with evidence of higher and more recent comparable sales figures. The trial court declined and the Court of Appeal affirmed, finding that the trial court acted within its discretion: “Should a family law court be required to take new evidence and to continually redistribute community assets until the moment a judgment is formally entered? The answer is obviously no.” (Id. at p. 1241.) In relying on Hahn, the trial court overlooked a critical distinction between the two cases in that here, there had not yet been a disposition of the family residence.
In the interim between the hearing on husband’s motion to reopen the trial and issuance of the court’s ruling denying the motion, wife’s counsel submitted a proposed judgment to husband’s counsel, purportedly predicated on “the court’s orders of August 12, 2002, October 23, 2002[,] and July 8, 2003 . . . .” In a cover letter, counsel wrote, “This Judgment accurately reflects the order of the court. . . . [¶] Please approve this Judgment as to form and content as it accurately reflects the court’s order. Please return the executed Judgment to my office within ten days of the above date or it will be submitted by declaration.” Thereafter, husband’s counsel sent to wife’s counsel a revised version of the judgment, which wife’s counsel then submitted to the court for signature. As submitted, the judgment provided that the court awarded the family residence to wife and the business to husband.
On August 4, 2003, husband filed a motion for reconsideration of the order denying his request to reopen the trial. The principal subject of the motion, however, was whether the parties had satisfied the requirements of the disclosure statutes. (§§ 2100 et seq.)
On December 19, 2003, the court signed the judgment as submitted by wife’s counsel.
The reconsideration motion was heard on January 29, 2004, and was denied. During the course of the hearing, husband’s attorney asked that “the court on its own motion correct the judgment that [wife’s counsel] submitted to accurately reflect the court’s rulings. I have a certified copy of the transcript of the hearing in which [wife’s counsel] claims that the house was allocated to [wife] and the business to [husband]. And I have the record which reflects that that is, in fact, not what happened. [¶] So I would request that that particular provision which allocates the assets be stricken from the judgment, in which case, [wife’s] motion [to order husband to sign the interspousal deed] should be denied.”
In response to the oral motion of husband’s counsel, the court stayed the effect of the judgment awarding the family residence and the business, and continued the hearing on wife’s motion to compel signature on deed to April 2, 2004, to permit wife’s counsel time to locate an oral or written stipulation as to the distribution of community assets. And, anticipating that wife’s counsel might be unable to establish the court actually awarded the family residence to wife, it set a provisional trial date for August 30, 2004, in the event it was necessary to divide the community estate. With reference to the October 23, 2002, minute order, the court acknowledged at this time that, although it is not reflected in the record, it had “probably” directed entry of an amended minute order, which “probably was not proper.”
On April 2, 2004, the court learned that wife’s counsel was unable to locate anything in writing with regard to distributing the family home or the business. And, acknowledging that the court had given him an opportunity to do so, wife’s counsel indicated, “that issue is set for trial in August.”
In August, however, the court was unavailable, and the matter was rescheduled for March 1, 2005. In open court on March 1, the court expressly stated it “agreed that the record is in error. And the judgment that [wife’s counsel] filed is in error because there was no award.” Although the court acknowledged the error, it said it would not modify the December 2003 judgment, but rather, would await the results of the current hearing and then correct the judgment nunc pro tunc.
At this hearing, husband was permitted to testify as to his opinion that the current value of the house was $520,000. Further, he made an offer to buy wife’s interest at that value. Wife testified that comparable homes in the area are priced between $548,000 and $580,000. During closing argument, husband’s counsel indicated that in preparing the judgment filed in December 2003, she had looked at transcripts and minute orders and believed that an allocation as to the family residence had been made. She said that it was not until the January 2004 hearing that the court acknowledged that no allocation had been made on the record. Counsel for wife argued that husband “is barred from bringing the issue of value before the Court again . . . by res judicata. The $273,500 is the adjudicated value of the residence and is the amount counsel placed in her judgment that was entered by the Court almost 15 months ago.” And, notwithstanding the fact that he was unable to present anything in writing to evidence a stipulation as to property division, he insisted “the parties and counsel had had an agreement [that] [wife] was going to be awarded the family residence; [husband] was going to receive the family business.”
Both parties requested a statement of decision. In her request, wife asked the court to explain the factual and legal basis for its decision if it awarded the family residence to husband and/or if it finds the value to be other than $273,500. Husband asked the court to explain the basis for its decision if it awarded the family residence at the value determined in August 2002.
The court issued its statement of decision by minute order on May 17, 2005. It found that husband was “not entitled” to a statement of decision as to the issue of valuation, noting that “valuation [of the property] was determined at the time of trial of this matter in 2002. This very issue was the subject of Husband’s motion to ‘Reopen Trial on Issue of Value of Family Residence’ filed on March 5, 2003. After hearing, that motion was determined adversely to Husband by this court’s written order of July 8, 2003. Husband sought neither reconsideration of nor appellate relief from that order. As observed by Wife, the issue of date of valuation is res judicata. Nonetheless, I will address the issue of re-valuation further, in an attempt to lay the issue to rest.” The court went on to award the residence to wife at the $273,500 value, explaining that wife had been in the house since separation and that because she is primarily responsible for the care of the three minor children, they should remain in the house with her, which would avoid any need to change their primary residence.
With regard to the issue of revaluation, the court acknowledged the general rule that property is to be valued as close to trial as practicable and that case law holds that “[e]quity is done by determining the value of the assets as close as possible to the time the asset is actually divided . . . .” The court also recognized “[a] deviation from the principle may be made under circumstances where one party has the ability to have a direct effect upon the value of an asset . . . [but] [w]here the asset is affected by general factors such as market climate, inflation, and the like, the later division date is warranted. [Citation.]” Citing In re Marriage of Walters (1979) 91 Cal.App.3d 535 (Walters) and In re Marriage of Hayden (1981) 124 Cal.App.3d 72 (Hayden), the court stated: “Were the issue not res judicata, the above authorities would appear to weigh in favor of husband’s position that a later valuation should be made.” On that basis, the court concluded it was not required to revalue the family home.
Both parties filed objections, and a hearing was held. The court overruled the objections and lifted the stay on the provisions of the December 2003 judgment. A document entitled Findings and Order After Hearing, essentially restating the contents of the court’s statement of decision, was filed May 25, 2006. This appeal followed.
During the pendency of the appeal, husband filed a motion asking us to take judicial notice of the legislative history of section 2552, and wife filed a motion to dismiss the appeal on the ground this court lacks jurisdiction to hear husband’s appeal. We reserved ruling on those motions for consideration with the appeal.
DISCUSSION
The issue before us is whether the trial court, in disposing of a community asset, may assign a value to that asset which it ascribed to it three years earlier. Under the circumstances presented, the answer is no. Before addressing that issue, however, we dispose of wife’s motion to dismiss the appeal.
1. This court has jurisdiction to hear husband’s challenge to the order awarding the family residence to wife at a value ascribed to it in 2002.
Wife asserts two independent grounds for her position this court lacks jurisdiction to hear husband’s appeal. First, she argues the issues raised by husband were finally and fully adjudicated by the 2003 judgment, which was never challenged. Thus, she argues that although husband is purportedly appealing the Findings and Order After Hearing filed May 25, 2006, his appeal, “in reality . . . is an attempt to attack the 2003 judgment.” Alternatively, she asserts the trial court lacked jurisdiction to hold a hearing on husband’s motion for reconsideration after judgment had been entered and, by analogy, after the expiration of the 60-day period provided in Code of Civil Procedure section 660 with regard to a motion for new trial. Thus, because the appeal is essentially derived from the faulty reconsideration hearing, i.e., it was then when the court opened up the question of whether an allocation of community property had been made, it is not viable and must therefore be dismissed. Finding no merit to either point, we deny the motion.
Wife contends in her motion: “[T]his appeal was made on a Judgment, (1) entered three and a half years after entry of the Judgment on Reserved Issues in which nothing had been reserved; (2) by way of a hearing on a Motion for [Re]consideration heard forty five days after Judgment had been entered and in which the statutory time to hear a Motion for [Re]consideration had lapsed some three months prior (on October 4, 2003); (3) without timely attacking the Judgment via Motion to Vacate or Set Aside or any other direct attack available to him. And, in any event, even after the subsequent March 2005 hearing itself, the judgment would still have remained unchanged, as the property was awarded consistent with the judgment.”
As urged by husband, we construe his attorney’s oral request to correct a clerical error made in preparing the judgment as tantamount to a motion for relief under Code of Civil Procedure section 473. We are unable to find any authority for the proposition that a motion under subdivision (d) of that section must be made in writing. In any event, by making an oral motion, husband’s counsel invoked the court’s action.
In that regard, “[i]t is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties. [Citation.] [¶] Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering judgment, or in recording the judgment rendered.’ [Citation.] Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. [Citation.] [¶] An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. [Citations.]” (In re Candelario (1970) 3 Cal.3d 702, 705, italics added.)
Here, at the time husband’s counsel prepared the proposed judgment, it was her understanding that the family residence had in fact been awarded to wife. Thus, as part of the judgment, she referenced the October 23, 2002, hearing, at which the court indicated that that is what occurred at the March 2002 hearing. When husband’s counsel later learned from a review of the transcribed proceedings that that is not what occurred, she brought it to the court’s attention. When the court learned that an error had been made, it acted within its inherent power by staying enforcement of the judgment pending a hearing at which the community assets would be distributed. And, to the extent the court exceeded its jurisdiction in hearing the reconsideration motion at such a late date, inasmuch as the court was acting within its inherent power, it matters not that the error came to light at that hearing. Indeed, a clerical mistake may be corrected by the court on its own motion “[r]egardless of the lapse of time or finality of judgment . . . whether the mistake was made by the clerk, counsel or the court itself. [Citations.] ‘Where the judgment as signed does not express the actual judicial intention of the court, but is contrary thereto, the signing of such a purported judgment is a clerical error rather than a judicial one.’ [Citations.]” (In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 746.)
Nonetheless, in his opposition to wife’s motion to dismiss, husband suggests that his appeal may actually be premature. He asserts: “In reality, no judgment reflecting the final disposition of all of the issues between the parties has yet been made. No order for an equalization payment has been made. The Findings and Order After Hearing filed May 25, 2006[,] does not contain the stipulations of the parties recited on the record March 2, 2005[,] for the valuation [and] disposition of other assets and obligations . . . . This court could conceivably dismiss this appeal as being not too late, but too early. [Citations.] . . . [¶] Should this reviewing court consider dismissal of this appeal for the fact that no final judgment disposing of all of the issues between the parties has been entered, [husband] urges that he has no adequate remedy at law on the facts of this case, and respectfully requests his appeal be considered as a petition for a writ of mandate.”
“‘A judgment is not appealable unless it is final in the sense that it decides the rights and duties of the parties and terminates the litigation. [Citation.]’ [Citation.]” (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.) As a general rule, when the trial court completes its characterization, valuation, and division of the community assets, no further judicial action is needed to effect a final determination of the parties’ rights. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 963.) Citing Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, the court in In re Marriage of Levine (1994) 28 Cal.App.4th 585 noted that “an essential element of an appealable postjudgment order is that the order be one which is not preliminary to later proceedings and will not become subject to an appeal after some future judgment.” (Id. at p. 589.)
Applying the foregoing criterion, it appears to us that husband’s appeal may be premature in that the challenged order neither disposes of the community’s interest in husband’s business nor provides for an equalization payment, either of which might somehow affect the disposition of the family residence. However, without deciding this question, we exercise our discretion to treat the appeal as a petition for an extraordinary writ within our original jurisdiction (In re Marriage of Doherty (2002) 103 Cal.App.4th 895, 898; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403), and we turn to the principal issue presented.
2. Section 2552 requires that property be valued at the time it is awarded.
Section 2552 states, in pertinent part: “(a) For the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties, except as provided in subdivision (b), the court shall value the assets and liabilities as near as practicable to the time of trial. [¶ ] (b) Upon 30 days’ notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate of the parties in an equitable manner.” For purposes of the statute, the term “trial” refers to the proceeding at which the property is divided. (Walters, supra, 91 Cal.App.3d at p. 539.)
Although husband maintains that the absence of a motion for alternate valuation in this case supports his position that what controls is the date the property is awarded, we fail to see how that provision in the statute has any relevance to the issue presented here. “The purpose of the exception [to time of trial valuation] is to remedy inequities such as those that may result when one spouse dissipates the community estate after separation, or when the effort and action of one spouse alone after separation greatly increases the value of the estate. [Citation.]” (In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1435.) Neither purpose applies here.
Applying this principle, “California appellate courts have concluded the proper valuation date for a community property residence for purposes of a dissolution proceeding is the date of trial unless there is some reason which renders this result inequitable. A date of separation valuation of property is appropriate ‘“when the hard work and actions of one spouse alone and after separation, greatly increases the ‘community’ estate which then must be divided with the other spouse.” [Citation.]’ ‘On the other hand, when an asset increases in value from nonpersonal factors such as inflation or market fluctuations, generally it is fair that both parties share in that increased value.’” (In re Marriage of Sherman (2005) 133 Cal.App.4th 795, 800-801, fns. omitted.)
Here, there can be no question that the court did not comply with section 2552. Nor can it be disputed that the family residence was not awarded in conjunction with the court’s August 2002 finding as to its value. Indeed, once the oversight was brought to its attention, the court acknowledged that no award had been made and fashioned an appropriate remedy, i.e., a new hearing at which disposition of the family residence could be accomplished. However, viewing the finding it had made in 2002 as res judicata, the court believed it was required to use the 2002 valuation. As we now explain, this was error.
Despite the fact the court conceded that no award of the family residence was made when it placed a value on it, wife insists “the early 2002 trial did identify, value and distribute the property . . . .” She argues that no “‘magic words’” were needed because everyone knew how the property was to be distributed. Even if the parties assumed that this would happen, for purposes of effecting an equal division of community property, it did not.
3. The trial court erred in finding that the issue of valuation was res judicata.
The trial court’s rationale for utilizing the 2002 valuation was misguided. In reaching its decision, the court found Walters and Hayden to be “of some interest.” It explained: “These cases both deal with a ‘later’ division of assets and the appropriate time to value those assets. Both cases deal with the interaction of the public policies of ‘no fault’ and ‘equal division.’ Finally, both cases dealt with the issue of the community family residence.”
In Walters, supra, 91 Cal.App.3d 535, an interlocutory judgment granted the family residence to the wife as her separate property. Its value was then $26,000. One and one-half years later, the court vacated all property provisions in the judgment and another trial was held. The value of the residence had increased to $50,000, and the court ordered it sold and the parties to divide the proceeds equally. On appeal the wife argued that the increase in value should be her separate property. The Court of Appeal disagreed and affirmed.
Noting that the residence had more than doubled, the reviewing court recognized that “[d]ivision and value of property go hand in hand. The division generally depends on the value and the court is in a better position to determine value at the time it divides the property than at some other date. Unless compelling reasons exist to do otherwise, property should be valued as of the time it is divided.” (Walters, supra, 91 Cal.App.3d at p. 539.) The court continued: “We are persuaded primarily by equitable considerations. The wife contends it is unfair to use the later date in this case because the home increased in value and she should have the benefit of that increase. However, she will reap such benefit by the award of one-half of the increased valuation. She has also had exclusive use of the home for two years. Although half the property belonged to the husband for those two years, he has enjoyed no benefit from it.” (Ibid.) To show the inequity of what the wife was requesting, the court presented a hypothetical in which the property, instead of increasing, had decreased. In that event, the wife might receive considerably less. Thus, the court concluded it would be fair for both parties to share the increase in value. (Ibid.)
And so it is here. Although Walters is factually distinguishable, its rationale is still useful. There, the wife was actually awarded the family residence until it was later vacated, whereas in the present case, no award to wife was made in 2002 when the court made its finding as to value. Yet, each wife apparently believed she already owned the house, although the wife in Walters, to whom an award had been made, was actually in a more enviable position than wife herein. Nonetheless, the result should be the same. Under circumstances where neither the increase in value nor lapse of time before effecting a final division of community property is attributable to either party, the equitable thing to do is allow both parties to share in the increased valuation.
In Hayden, supra, 124 Cal.App.3d 73 the interlocutory judgment granted the husband a 30-day option to purchase the wife’s interest in the family home. In her appeal concerning issues other than the value of the residence, the wife, citing Walters, argued that on remand the court should use the current value of the residence in redistributing the community estate. Noting that it was unable to determine from the record why, in the absence of any stay order, the husband had not already exercised the option, the Court of Appeal concluded that former Civil Code section 4800 “must be interpreted as requiring community property to be divided at its value as near as practicable to the court proceeding in which a proper division takes place. While normally it will be at trial, it may also be on remand after appeal. [¶] On the facts of this case, if the option had been exercised within the time limits set by the interlocutory decree, equal division would have been achieved by using the then current valuation. If, in fact, [the husband’s] failure to exercise the option at that time was due to factors not reasonably within his control because of [the wife’s] appeal or her other acts, we see no equitable justification for reappraisal. However, on this record, we cannot determine whether [the husband’s] failure to purchase in accordance with the decree was due to other factors . . . . Should the court [on remand] find the delay in dividing the community property was not primarily due to [the wife’s] conduct or the pendency of this appeal, equity may well require a current valuation of all the undivided community property.” (Hayden, supra, 124 Cal.App.3d at pp. 79-80.) Thus, on remand, the trial court “shall determine whether equitable factors make it unfair to allow the residential purchase option to be exercised at the original value.” (Id. at p. 80.)
In neither Walters nor Hayden was the residence ascribed a value independent of an order disposing of that property, as it was here. Indeed, although the court here made a finding in August 2002 as to the value of the family home, its finding was, in essence, made in a vacuum. That is, although the parties may well have intended for the court to both value and dispose of the family residence at the 2002 trial, this clearly is not what happened. Nor is there anything in the record to reflect either an oral or written stipulation of the parties that the home was to be awarded to one party rather than the other. Husband has it right when he asserts in his opening brief, “The trial court did in fact make a valuation of the family residence in 2002; the determination simply was not connected to the distribution of property.” As the Hayden court stated, in discussing Walters, “[t]here, at trial, a residence had been awarded to a wife as her separate property and its valuation at that time was not relevant to the totality of community interests divided at that trial.” (Hayden, supra, 124 Cal.App.3d at p. 79.)
Notwithstanding the foregoing, the trial court, citing Hayden and Walters, had this to say: “Were the issue not res judicata, the above authorities would appear to weigh in favor of [husband’s] position that a later valuation should be made.” Presumably the court intended to say “collateral estoppel,” but in any event, it was mistaken, as that doctrine has no application here.
“‘Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.] The doctrine applies ‘only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements.’ [Citation.]” (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943.) In short, absent finality, collateral estoppel does not apply. Thus, there was simply no basis for the court to conclude that its ruling was governed by the finding it had made three years earlier. Indeed, although the court in its 2002 statement of decision purported to order that the value of the house was $273,500, nothing came of that order, as there was never a disposition of that property.
The trial court went on to say that Walters actually supports wife’s position. The court found “the only reason to have trial of the issues of value of the subject property in 2002 was to establish a value for buyout. If, in fact, neither party wished to buy out the other, then the residence should have been sold and the net proceeds divided according to the property division.” (Italics added.) In making that statement, the court ignored the reality that no provision for property division had previously been made.
Further, the court noted that in Walters, it was made clear that a later appraisal date was not required as a matter of law. Relying on that court’s rationale for its decision, the court here found that husband “at all times was able to bring this matter to a proper and timely conclusion by following through on the findings made by this court in August of 2002.” But so too was wife. There was no order and wife could just as well have done something to motivate the court to divide the property. In fact, wife arguably had even more reason to take such action. In short, husband alone cannot be faulted for the inaction of the parties and the court.
Finally, there is no merit to wife’s argument that even if the residence was not distributed at the first trial, the court could have used the earlier valuation because husband had unduly prolonged the proceedings. Although she cites the court’s statement of decision to support her position, there is simply nothing in the record to support the court’s statement that husband unduly prolonged these proceedings. Both parties are responsible, as is the court, for the delay in finalizing this matter. Indeed, trial on the issue of distribution was originally set for August 2004, but was continued on the court’s own motion to March 2005.
DISPOSITION
The appeal is dismissed. The petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the trial court to vacate its findings and order after hearing dated May 25, 2006, awarding the family residence to respondent at a value of $273,500, and enter a new and different order consistent with this opinion. Further, to the extent the judgment entered on December 19, 2003, is inconsistent with this opinion, the court is directed to correct it. Appellant is awarded his costs on appeal.
Because we reach our conclusion without resort to the legislative history of section 2552, we decline to exercise our discretion to take judicial notice of those documents, as requested by husband. (Evid. Code, § 459.)
There is merit to husband’s contention he is entitled to have the December 19, 2003, judgment corrected to reflect the findings and orders of the court so that it “‘will conform to and speak the truth . . . .’” (Bowden v. Green (1982) 182 Cal.App.3d 65, 71.)
We concur: GAUT, Acting P.J., KING, J.