                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 21 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID FOLSOM; PAMELA                             No. 11-56413
BRODWOLF-FOLSOM,
                                                 D.C. No. 3:10-cv-02440-L-NLS
               Debtors - Appellants,

  v.                                             MEMORANDUM*

GERALD H. DAVIS, Chapter 7 Trustee,

               Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                            Submitted March 12, 2013**

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Appellants David Folsom (“Debtor”) and Pamela Brodwolf-Folsom appeal

pro se from the district court’s order affirming the bankruptcy court’s summary

judgment in an adversary proceeding brought by the bankruptcy trustee concerning


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ownership of real property. We have jurisdiction under 28 U.S.C. § 158(d). We

review independently the bankruptcy court’s decision without deference to the

district court’s determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857

(9th Cir. 2004). We affirm.

      The bankruptcy court properly granted summary judgment because, under

the terms of Appellants’ pre-marital contract, the real property at issue is

community property and thus Debtor’s interest is property of the bankruptcy estate.

See Cal. Fam. Code § 1500 (“The property rights of husband and wife prescribed

by statute may be altered by a premarital agreement or other marital property

agreement.”); Bolton v. MacDonald (Estate of MacDonald), 794 P.2d 911, 918

(Cal. 1990) (transmutation requires language that expressly states that

characterization or ownership of property is being changed); see also Fed. R.

Bankr. P. 7056 (applying Federal Rule of Civil Procedure 56 in bankruptcy

adversary proceedings).

      We do not consider Appellants’ arguments and documents that were not

presented below. See United States v. Shaltry (In re Home Am. T.V.-Appliance

Audio, Inc.), 232 F.3d 1046, 1052 (9th Cir. 2000) (absent exceptional

circumstances, an argument is waived if it is not presented before either the

bankruptcy court or the district court); Kirshner v. Uniden Corp. of Am., 842 F.2d


                                           2                                    11-56413
1074, 1077 (9th Cir. 1988) (documents not filed with the district court are not part

of the record on appeal).

      AFFIRMED.




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