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Court of Appeal:
Minute Order Dissolving Marriage Ineffective Where Preparation of Judgment Ordered
Opinion Says Judge Erred in Declaring, Sua Sponte, in 2022 That Couple Was Divorced in 2015
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a judge, presiding over a dissolution of marriage case, erred in 2022 by declaring, sua sponte, that the parties had already been divorced in 2015, and that their joint dismissal of the action in 2017 was invalid.
It was valid, Presiding Justice Judith McConnell said in an unpublished opinion. He explained that although the judge on July 30, 2015, proclaimed in open court and in a minute that the marriage of Elizabeth and Tracy Tippetts was dissolved, pursuant to a stipulation, on that date, the judge also directed the husband’s counsel to prepare a formal judgment.
In light of the parties’ reconciliation, no such agreement was submitted to the court.
The wife filed anew for a divorce on Sept. 6, 2019. San Diego Superior Court Judge Patricia Garcia, at a hearing on Elizabeth Tippetts’s motion for an order enforcing a marital settlement agreement (“MSA”) entered into during the course of the preceding action, declared that the divorce was effective on July 30, 2015, in light of the minute order.
Agreement With Wife
McConnel wrote:
“[W]e agree with Elizabeth that judgment was not effectively entered in the original divorce proceeding, and therefore the parties’ subsequent joint voluntary dismissal of the matter was effective. Although the July 30, 2015 minute order indicates that the judgment is effective that date, it explicitly directed Tracy’s counsel to prepare the judgment in accordance with rule 5.411. There is no dispute the MSA was prepared but never entered by the court.”
She explained:
“What constitutes a dissolution judgment that precludes dismissal of the proceedings is governed by the Family Code, specifically Family Code section 2338.”
Paragraph (c) of that statute says:
“If the court determines that a dissolution should be granted, a judgment of dissolution of marriage shall be entered. After the entry of the judgment and before it becomes final, neither party has the right to dismiss the proceeding without the consent of the other.”
Dismissal Was Effective
The presiding justice reasoned:
“[S]ubdivision (c), which allows a dismissal before ‘entry of the judgment,” even without the consent of both parties. Here, the parties filed the dismissal by agreement in accordance with section 2338 before the dissolution judgment was entered by the court. The dismissal was accepted by the court the same day. Accordingly, the dismissal was effective, and the present family court had no basis to vacate the dismissal and order entry of judgment.”
The husband is contending that the MSA entered into in the course of the first divorce proceeding is enforceable and the wife contests that proposition. McConnell noted:
“…Tracy contends that the family court’s error was not prejudicial because ‘Tracy would have the right to seek enforcement of the underlying stipulation as a judgment at any time in the subsequent divorce action.’ However, because no judgment was entered, the MSA is not enforceable as such.”
She added:
“It is not this court’s role to rule on the enforceability of the MSA in the first instance, and Tracy provides no basis for this court to make such a determination.”
The case is Marriage of Tippetts, D081693
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