Filed 4/4/13 Marriage of Patterson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

In re the Marriage of STEVEN and KELLEE R.
PATTERSON.

STEVEN PATTERSON,                                                                          F064797

         Respondent,                                                    (Super. Ct. No. S-1501-FL-595369)

                   v.
                                                                                         OPINION
KELLEE R. PATTERSON,

         Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kern County. Susan M. Gill,
Judge.
         Law Offices of Michael G. York and Michael G. York for Appellant.
         The Law Office of Paige Etcheverry-Barnes and Paige Etcheverry-Barnes for
Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
       In connection with a marital dissolution action, respondent, Steven Patterson
(Husband), filed an order to show cause requesting that he be awarded exclusive use and
possession of the house he purchased before the marriage. Appellant, Kellee R. Patterson
(Wife), responded that Husband was not entitled to retain possession of the property
because (1) he stipulated that he would surrender possession of the house unless he
prevailed at the trial of a separate civil action; and (2) that the separate civil action had
been dismissed.
       The family law court granted Husband exclusive use and possession of the house.
The court found that the stipulation was no longer valid and that Husband should remain
in possession of the house in order to maintain the status quo.
       Wife challenges this order on the ground that Husband was bound by his
stipulation to surrender possession of the house. According to Wife, the stipulation in the
separate civil action was binding on the court in the dissolution action and therefore the
family law court erred in not enforcing the stipulation.
       The family law court did not err as the issues are yet to be resolved by that court.
The order will be affirmed.
                                      BACKGROUND
       In his application for the order for exclusive use and possession, Husband filed a
declaration in support of his request. Husband declared that he had lived in the house
since it was purchased in 1990. Husband and Wife were married in 1999. Husband
explained that he and Wife agreed to the terms of a marital settlement agreement that
included child support. According to Husband, he signed a promissory note in favor of
Wife securing the child support obligation.1 However, the parties did not sign the marital


1       At the time of the parties’ separation, the two minor children were living with their
grandparents in Idaho under a guardianship. Wife’s response to the dissolution petition
stated that there were no minor children.



                                               2.
settlement agreement and it never became an order of the court. Husband declared that
Wife then signed over title to her attorney, Michael York, and that York claims he is the
owner of the house.
       In response, Wife set forth a somewhat different version of the facts supported by
York’s declaration. According to Wife and York, in addition to the promissory note,
Husband signed a deed of trust on the house in favor of Wife. Thereafter, title to the note
and deed of trust were transferred to York. When Husband did not make the payments
on the note, York proceeded with foreclosure, a foreclosure sale was conducted, and
York acquired title to the property. York then filed an unlawful detainer action against
Husband. In response, Husband requested a preliminary injunction against the
foreclosure. Husband’s request was denied on the ground that the court lacked sufficient
evidence to make the necessary findings. Husband next filed a separate civil action
against Wife seeking an injunction against the foreclosure and claiming that the
foreclosure was improper. Husband’s motion for a preliminary injunction in this separate
civil case was denied. York declared that the parties then entered a stipulation in the
separate civil action wherein they agreed that Husband would deliver possession of the
house to York no later than April 2, 2009, “unless prior to that date [Husband] in this
action prevails at a trial of this action” and York agreed to dismiss his unlawful detainer
action. York further declared that the separate civil action proceeded to trial and
Husband did not prevail. Therefore, York claimed, he was entitled to enforce the
stipulation.
       The family law court granted Husband’s request for exclusive use and possession
of the house. The court concluded that, because the separate civil action had been
dismissed and the question of the ownership of the house was to be determined in the
dissolution action, the stipulation made in the separate civil action was no longer valid.
The court also wanted to maintain the status quo.



                                             3.
                                       DISCUSSION
       Wife argues that Husband’s stipulation given in the separate civil action was
binding on the court in the dissolution action and therefore the trial court erred in
disregarding the stipulation. Wife cites the rule that, as long as the stipulation is neither
contrary to law nor against public policy, the stipulation entered into in one proceeding is
binding in another proceeding. (Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th
934, 944.) Wife has correctly stated the general law. However, because the conditions of
the stipulation were not satisfied, the family law court properly refused to enforce it.
       In January 2009, Husband agreed, through his attorney, that he would surrender
possession of the property not later than April 2, 2009, “unless prior to that date
[Husband] in this action prevails at a trial of this action.” This wording implies that the
parties conditioned their agreement on several events taking place. It is clear that the
parties assumed that: the court had jurisdiction to determine the issues in Husband’s
separate civil action, i.e., whether the note and deed of trust and the foreclosure were
valid; a trial would take place; and either York or Husband would prevail. However, in
June 2009, the court dismissed Husband’s separate civil action as follows:

       “Plaintiff complaint is dismissed without prejudice to pursue the matter in
       the family law case. The family law court has exclusive continuing
       jurisdiction over this matter. The claim raised in this civil action is one of
       support. The transaction which occurred would not have occurred outside
       of the family law context. It is well established that when a dissolution
       proceeding is pending, neither party to that proceeding may file a civil
       action concerning interim support orders issued in the dissolution
       proceeding. This same rule also applies to tort actions which are based on
       conduct which took place during the dissolution proceedings.…”
       Thus, contrary to York’s declaration in response to Husband’s order to show
cause, the separate action did not proceed to trial. Further, no one has prevailed on this
matter. The issue of the validity of the note and deed of trust has yet to be decided.




                                              4.
Under these circumstances, the family law court did not err in refusing to enforce the
stipulation.
                                     DISPOSITION
       The order is affirmed. Costs on appeal are awarded to respondent.




                                            5.
